Expert Notes on Documenting SGBV: Evidence-Based Prosecutions
This is an important note featured in our newly-released section to the Video As Evidence Field Guide: Using Video to Support Justice and Accountability for Sexual and Gender-Based Violence. To download the full section, click here.
by Dorchen A. Leidholdt, Legal Director, Sanctuary for Families and Michelle Kaminsky, Chief, Domestic Violence Bureau, Kings County District Attorney’s Office
If we can prosecute murderers without the testimony from the victim, why can’t we successfully prosecute perpetrators of gender-based violence without victim testimony?
~Casey Gwinn, former City Attorney of San Diego & President and Founder of the San Diego Family Justice Center
To help explain why we think video is a particularly useful tool for proving SGBV crimes and accessing justice for survivors, let’s take a moment to consider the evidence-based approach used for prosecuting domestic violence (DV) in the United States. Pioneered by San Diego City Attorney Casey Gwinn in the mid-1980’s and subsequently embraced by DV prosecutors throughout the United States and many other countries around the world, the evidence-based approach to prosecuting DV cases effected a breakthrough in the way prosecutors view and handle DV cases and treat victims.
Prior to this time, prosecutors of criminal cases involving allegations of intimate partner violence relied heavily, sometimes exclusively, on victims’ testimony to meet their burden of proof. Historically prosecutors gave short shrift to other forms of corroborating evidence, even though such evidence, such as photographs of victims’ injuries, tangible evidence like a victim’s bloodied nightgown, and the eye or ear witness testimony of family members or neighbors, was not only highly probative but was often abundantly available at the pendency of the criminal investigation and prosecution.
Law enforcement officials’ failure to recognize, gather, and preserve such powerful corroborating evidence, the consequence of their failure to recognize the importance of prosecutions of domestic violence perpetrators to victim and community safety, led to the wholesale dismissal of intimate partner cases accompanied by the blaming of victims. The pervasive common wisdom of law enforcement and too often the general public at that time was that it wasn’t law enforcement who was responsible for these failed prosecutions but the victims themselves, who were too psychologically damaged or unenlightened to know what was good for them. Left unrecognized was the validity of victims’ fears of retaliation by their abusers and the massive pressure abusers and their family, friends, and community members put on victims to deter their cooperation with law enforcement.
All of this changed with Casey Gwinn’s groundbreaking recognition that despite the private nature of intimate partner violence, abusers often leave a telltale trail of evidence, if only police and prosecutors are motivated and savvy enough to recognize and preserve it. Law enforcement officials began to realize that placing victim testimony at the core of DV cases is not only a self-defeating approach that too often leads to failed prosecutions but is physically dangerous and psychologically harmful to victims, contributing to abuser retaliation, intensified dynamics of coercive control, and heightened trauma to victims, who are inadvertently placed in the cross hairs by law enforcement when they bear the burden of proving the criminal case.
So, the evidence-based approach to DV prosecution seeks to remove direct victim involvement altogether: police and prosecutors set out to thoroughly investigate and document each case such that it could be won without victim participation. By being alert to and building cases with evidence other than the victim’s testimony—such as emergency calls, text messages, medical records, photographs and non-testimonial video—prosecutors can avoid the risks associated with victim testimony while also gaining new benefits, including redirecting the focus of the case squarely on the offender instead of on the victim.
The Role of Video for Evidence-Based Prosecutions
Video evidence can be especially valuable. In one case of Sanctuary for Families’, when a young DV victim who had been groomed and then trafficked by her abuser refused to testify as a result of the condition of traumatic bonding he had instilled in her and her genuine terror
of him, the prosecutor succeeded in proving his felonious violence against her beyond a reasonable doubt by introducing into evidence the video footage of a brutal beating the abuser subjected his young victim to in the halls of the homeless shelter in which they were residing.
For over twenty years, the Brooklyn District Attorney’s Office has been a leader in pursuing evidence-based prosecutions against DV offenders. Video surveillance footage, jail house phone calls, and police officer body-worn camera footage has changed the landscape of DV prosecutions by enabling prosecutors to go forward without victim participation.
In a recent case, a surveillance camera located outside of an apartment building captured an abuser violently and repeatedly slamming the victim’s head against a concrete pavement in front of her two small children. The victim suffered a serious concussion and was too traumatized and conflicted to testify against her abuser, who was also the father of her children. The video footage enabled the prosecutor to negotiate a top count plea, and thus avoid calling the victim to testify at a trial.
In another case, police officer body-worn camera footage captured the aftermath of a DV assault. The police, responding to an emergency call for help, turned on their cameras as soon as they got out of their car. The body camera footage captured the abuser running outside of the home, agitated while the victim was at the front door bleeding and crying. This footage also enabled the prosecutor to negotiate a top count plea, and thus avoid calling the victim to testify at a trial.
Investigating and pursuing justice and accountability for SGBV is a sensitive undertaking, especially where victims and survivors are involved. Learning how to collect and use video as evidence to help prove SGBV crimes with lesser dependence on testimony from victims and survivors can really help to mitigate potential risks to survivors throughout this process.
For more expert notes, download the full section here.