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2/16/2015
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“OTHER ACTS” FOR ADVOCATES
HOW THE BIG PICTURE HELPS THE VICTIM, THE POLICE AND
PROSECUTORS
Today’s Presenters
• Asst. AG Audrey Skwierawski
– (414)628‐5036
* Asst. AG Miriam Falk
– (608)286‐0381
SERIAL OFFENDERS
• WHAT DO THE S.A. STATISTICS TELL US??– 302,100 WOMEN AND
92,700 MEN “FORCIBLY RAPED” ANNUALLY IN U.S. NAT’L VIOLENCE AGAINST WOMEN SURVEY
– Approximately 84% of victims do not report their victimization to law enforcement.
– Of all the arrests in the U.S. in 2004, arrests for sex offenses accounted for less than 1%.
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SERIAL OFFENDERS
• What do convicted sex offenders tell us??
– Several well‐respected studies reveal that convicted sex offenders report to having many more victims and offenses than were known to authorities.
Domestic Violence
• In Wisconsin, over 25,000 reports of domestic violence are made every year.
• Over 40,000 men, women and children receive domestic‐violence related services annually in Wisconsin
• Domestic violence is properly considered to be a major health crisis.
• Abusers violate the same person multiple times in multiple ways, and often have abused those in past relationships
Reasons to Respond
• Between sexual assault cases and domestic violence cases, large numbers of adults and children are being harmed physically and emotionally.
• The impact of the violence from these two classes of cases on the community is enormous, both immediately and in the long term.
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One Good Tool to Win the Fight:The Big Picture
“Other Acts” are Tools which help Everyone See the Big Picture
What is other acts evidence?
• Another “crime, wrong or act” by the defendant, the victim, or a witness
• Need not have resulted in a conviction
• Need not be a “bad” act
• Can have occurred prior to or after the charged act
Blinka, Evidence of Character, Habit and Similar Acts in Wisconsin Civil Litigation,
73 MARQUETTE LAW REVIEW 283, 303(1989)
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904.04(2)(a) OTHER ACTS
904.04 Character evidence not admissible to prove conduct;exceptions; other crimes.
(2) OTHER CRIMES, WRONGS, OR ACTS.
(a) Except as provided in par. (b), evidence of othercrimes, wrongs, or acts is not admissible to provethe character of a person in order to show that theperson acted in conformity therewith. Thissubsection does not exclude the evidence whenoffered for other purposes, such as proof of motive,opportunity, intent, preparation, plan, knowledge,identity, or absence of mistake or accident.
ACT 362: OTHER CRIMES, WRONGS OR ACTS, expanded!!!!!!
OTHER CRIMES, WRONGS OR ACTS
• NEW LAW: “GREATER LATITUDE”: CREATES NEW SUBSECTION THAT SAYS IN CASES OF HUMAN TRAFFICKING, CHILD SEX CRIMES, SERIOUS SEX OFFENSES AND DOMESTIC ABUSE
• “evidence of any similar acts by the accused is admissible, and is admissible without regard to whether the victim of the crime that is the subject of the proceeding is the same as the victim of the similar act.”
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OTHER CRIMES, WRONGS, OR ACTS
Admissibility:
• 904.04: Offered for an Acceptable Purpose
• 904.01: Relevant to a Consequential Fact with Probative Value
• 904.03: Probative Value Outweighs the Danger of Unfair Prejudice
State v. Sullivan, 216 Wis. 2d 768, ¶¶ 5‐8, 576 N.W.2d 30 (1998)
OTHER ACTS, CONTINUED
• WHY ARE PROSECUTORS EXCITED?– Domestic violence and sexual
assault cases are often circumstantial cases
– Domestic violence and intra‐family sexual assault cases often proceed without victim cooperation or victim recantation
– Perpetrators of domestic violence and sexual assault are generally serial offenders
– “Other acts” can be powerful circumstantial evidence that can greatly increase the chances of holding offenders accountable
Sexual Assault and Domestic Violence
• SA/DV occurs most often out of the public eye
• In places without other witnesses
• Happens in escalating pattern
• Victim’s credibility will be central to the case (and primary attack point for defense)
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OTHER ACTS, CONTINUED
• LAW ENFORCEMENT ROLE:– IDENTIFYING “REPEAT
OFFENDERS” via police and court records
– ASKING QUESTIONS THAT LEAD TO IDENTIFICATION OF OTHER VICTIMS
– DOCUMENTING DV AND SA CASES THOROUGHLY
– HELPING PROSECUTORS CONNECT THE DOTS TO CREATE A STRONG CASE FOR COURT
Advocacy Role
• With Victim– Explain LE need to know
big picture of theirrelationship
– Explain LE need to know about prior victims/relationships of the perpetrator
– Explain how “other acts” may help prove case beyond a reasonable doubt
– Explain that “other acts” makes victim less “alone”, and enhances her credibility
Advocacy Role, continued
• With Victim– Identify the types of
information LE may ask about
– Help victim identify possible witnesses to other acts done to victim
– Determine whether any outside documentation of other acts to victim exists; discuss releases of information; discuss preservation of evidence within victim control and need to inform LE
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Advocacy Role, continued
• With LE
– Alert LE to possible “other acts” (with permission)
– Provide releases and any info re: investigative leads (other victims, witnesses, evidence)
– Explain any victim concerns: safety, confidentiality, etc.
Advocacy Role: Other Acts Witnesses
• May need to provide advocacy and connect to services if prior victim becomes a witness
• Explain to prior victim/witness their connection to larger case
• Work with LE to coordinate information and services with “other acts” victims
PUTTING IT TOGETHER !!!!
VICTIM 3
VICTIM 2
VICTIM 1
PERPETRATOR
VICTIM 3
VICTIM 2
VICTIM 1
PERPETRATOR
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Arriving at the Big Picture
Using Isolation
Using Intimidation
Making victim afraid by using
actions, gestures, displaying weapons
Using Coercion and Threats
Making or carrying out threats to do something to hurt
victim
Denying, Minimizing
and Blaming
Saying abuse didn’t happen,
shifting responsibility for abusive behavior, saying victim caused it
POWER AND CONTROL WHEEL
Controlling what victim does, who victim sees and talks to, where victim goes
A Domestic Violence/SA Case Example: “Other Acts” with Multiple Victims
• The many cases of Angus M.– Current case:
• Met K in May, 2013. K = recovering drug user who has lost custody
• BF/GF within one week• Angus convinces K that he will
“help” her get clean and get kids back
• K agrees to AM’s “rules”• Within two weeks, controlling all
victim behaviors, friends, job placement, money
• Verbal threats to physical violence (escalating) to sexual assault & strangulation when “rules” broken
• Idiosyncratic: extreme violence, unique graphic threats and forced “choices”
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The Crimes of Angus M. against K
– Angus set K up to fail: “broke up” with her, then sent her to a bar to meet him; failed to show, and followed her– she was upset at the “break‐up” and drank. K taken home by man from bar. Awakens in Angus’ car. He is screaming vulgarities and insults. Slaps K.
– Angus drives K around for 2+ hours; K repeatedly punched in ribs; her “choice” = punches to ribs or break her wrist; says she will be raped & left for dead when he sells her; strangles K; taunts with questions about hospital. No visible injuries but ruptured spleen—close to death
– Also, K sexually humiliated (must swallow urine) later at Angus’ home.– After case charged, from jail, many phone calls and letters to victim
professing his love for her and suggesting (in code) that she recant her story and they could be together
– A.M.’s defense:
• “It wasn’t me. K was drugged and mistaken.”
Angus M.’s DV History
• Run CCAP: check all old cases; request copies of all old reports and criminal complaints if charges issued.
• Check restraining order and injunction filings
• Check neighboring agencies for all prior complaints
• Contact all prior victims; explain situation and determine if prior victim able & willing to testify; connect all prior victims with advocacy– In case of victim with prior contact
with DA’s Office, victim advocate may want to be the contacting person
Angus M.’s Domestic Violence History
• 1997: shot girlfriend “accidentally” when thought she “cheated”; previously made her handle gun, explaining it was “to make it look like suicide” if he ever shot her; put gun in victim’s mouth, and “wondered” what it would be like to die; played strangling “game”; victim tried to convince court at sentencing that A.M. did nothing wrong (later learned she was threatened by A.M. and verbally abused)
• 1999: tied up GF, duct‐taped her mouth, slapped and beat her, put plastic bag over head and explained what dying by suffocation would be like for her; put guitar wire around her neck and strangled her by lifting up: “Do you like this?” threatened to kill her family in front of her, letting her “choose” who would die first; thought she was cheating. A.M.’s brother witnessed part.; subsequently stalked victim‐calls and drive‐bys
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• 2001: Punched victim in stomach; twisted victim’s wrist; told her he had a “special treat” for her, then strangled GF with pair of pants while describing to her how he was going to gut her and let her watch as he hung each family member; thought she was “cheating”; Escalating verbal humiliation and physical violence prior to incident. After charges were issued, harrassing calls‐‐ Threatened to get her PT License revoked and have her charged criminally when she refused to recant.
• 2004: followed girlfriend in car after hearing phone message to her from male co‐worker; rammed his truck into her car (multiple occasions) and stole her glasses, telling her he was going to call police because she breaking law driving without them. Punched victim in face. Stalked her—phone calls and following. Had been checking her phone, and getting into her house. She became uncooperative with police after charges filed—A.M. convinced her to do so. Escalating verbal humiliation, physical abuse and strangulation.
Other Victims
• Angus M. had several other victims who were not emotionally able to come to court, as they were living in hiding from him out of fear of being murdered by him. Advo kept in touch.
• After conviction, several prior victims addressed the court about the impact his violence had on their lives even now. Advocacy provided services at trial and at sentencing
Angus M.’s Pattern of Behavior:His Behavioral “Fingerprint”
• Girlfriend/Boyfriend• Accusations of cheating or “not following his rules”• Verbal violence, escalating and demeaning• Escalating physical violence• Strangulation• Stalking behaviors: following, constant calling, checking
phone records, driving by, checking up at work• Severe, graphic threats to harm victim and family members
in victim’s sight • Efforts to get victim to recant or have charges withdrawn
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Why the Court Allowed the “Other Acts”
Defense was “identification”‐‐ SODDI• A.M. had demonstrated a unique pattern of behavior: sort
of a behavioral “fingerprint”• The “other acts” showed that the perpetrator of the
charged crimes was him, based on his prior acts—idiosyncratic and patterned, scripted
• The other acts corroborated the victim’s version of events• A.M. had also tried to sweet‐talk K into recanting and going
along with his story that K was drugged and mistaken when she identified A.M. to police: additional charges!!!!!
• RESULT: THE CIRCUMSTANTIAL EVIDENCE BOLSTERED THE DIRECT EVIDENCE OF THE DEFENDANT’S GUILT
“OTHER ACTS” INVOLVING THE SAME VICTIM OVER TIME
THE HISTORY• Jan (now age 69, 4’11’’) married
to John (weighs ~ 450 lbs) 6 years
• During the 6 years, John:– Takes over Jan’s $$
– Won’t let Jan leave home
– Makes rules for Jan:• All housework
• All cooking
• Bathe him
– Verbal violence and humiliation
– Escalating physical & sexual assault, but no hitting with object
– Sexual humiliation: photos, exposure and use of objects
THE CASE
– John tells Jan to go into the bedroom‐she complies, per habit
– John tells her to strip– John tells her to lay on stomach– John anally assaults and Jan
crying, which angers John– John uses object to anus—Jan
cries more– John uses belt to beat Jan,
telling her that if she not stop crying, next time he will beat her worse ; leaves belt marks
The Disclosure
• Jan’s daughter‐in‐law was in the house—
• Heard Jan crying “no! stop!”• Heard John yell “I’ll beat
you worse!”• Later, Jan whispers
disclosure, but wants it to be DOCTOR who calls police—avoid retaliation by John
• Dr. told three days later at already‐scheduled appt.
• Dr. calls police
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“Other Acts”‐Same Victim
• ELDERLY ABUSE DV
• Pattern of insidious and escalating behavior to:– CONTROL
– INTIMIDATE
• John’s defense to the SA: CONSENT– Jan = wife
– Jan “complied” with all requests
– This is their “normal” sexual behavior
“Other Acts” to Show the BIG PICTURE
JUST THE CASE AT HAND THE BIG PICTURE
SHEDDING LIGHT
