“As we observe National Domestic Violence Awareness Month, I call on all Americans to commit to preventing domestic violence and to assist those who suffer from it. These collective efforts will contribute to peace in our homes, schools, places of work, and communities and will help ensure the future safety of countless children and adults.

NOW, THEREFORE, I, GEORGE W. BUSH, President of the United States of America, by virtue of the authority vested in me by the Constitution and laws of the United States, do hereby proclaim October 2001, as National Domestic Violence Awareness Month. I urge all Americans to learn more about this terrible problem and to take positive action in protecting communities and families from its devastating effects.

IN WITNESS WHEREOF, I have hereunto set my hand this first day of October, in the year of our Lord two thousand one, and of the Independence of the United States of America the two hundred and twenty-sixth.”

                                                                                   GEORGE W. BUSH
           For the month of October my blogs will focus on the very serious topic of Domestic Violence.  I will explore the issues of policy, resources, data/statistics and future developments in the area.  Domestic violence is still one of New York’s (and the nation’s) most fatal and injurious plights that affects our society in several ways.  Albeit, the spotlight on the topic has promulgated advancements in law, resources, training, etc. there is still much work to be done. Since 1970 when domestic violence awareness has been on the forefront of evolution,  there has been tremendous advancements.  New York, particularly, has devoted and committed significant time, money and efforts to awareness, prevention and treatment of all of the tangential issues that arise as a result of domestic violence. 
What is Domestic Violence?

         It is defined as a pattern of abusive behavior in any relationship that is used by one partner to gain or maintain power and control over another intimate partner.  Domestic violence can be physical, sexual, emotional, economic, or psychological actions or threats of actions that influence another person. This includes any behaviors that intimidate, manipulate, humiliate, isolate, frighten, terrorize, coerce, threaten, blame, hurt, injure, or wound someone.  Domestic violence includes teen relationship abuse, lesbian/gay/transgender abuse, elder law issues, i.e. elder abuse and child abuse/neglect.
Domestice Violence Data & Statistics:

          -National data on domestic violence indicate that estimates range from 960,000                   incidents of violence against a current or former spouse, boyfriend,  or per  year to three million women who are physically abused by their husband or boyfriend per year.

             -Nearly one-third of American women (31 percent) report being physically or        sexually abused by a husband or boyfriend at some point in their lives, according to a 1998 Commonwealth Fund survey.

             -Nearly 25 percent of American women report being raped and/or physically            assaulted by a current or former spouse, cohabiting partner, or date at some time in their lifetime, according to the National Violence Against Women Survey, conducted from November 1995 to May 1996.
 
             -Thirty percent of Americans say they know a woman who has been physically abused by her husband or boyfriend in the past year.
 
             -In the year 2001, more than half a million American women (588,490 women) were victims of nonfatal violence committed by an intimate partner.
 
             -In 2001, women accounted for 85 percent of the victims of intimate partner violence (588,490 total) and men accounted for approximately 15 percent of the victims (103,220 total).
 
             -While women are less likely than men to be victims of violent crimes overall, women are five to eight times more likely than men to be victimized by an intimate partner.
 
Although there is no up to date data on New York State’s domestic violence incidences, current information implies that it may be higher than the national average.
Domestic Violence and Its Impact:

          Domestic violence affects families, employers, medical ahd health professionals, social service providers, mental health professionals, politicians and government funding.  Criminal law, child support, child custody/visitation, spousal support, divorce, immigration, landlord-tenant, debt & collection, civil law and government beneftis all interrelate in domestic violence cases.  In addition, Domestic Violence has a direct and/or indirect correlation to teen violence, teen pregnancies, infant mortality, just to name a few. 
 
          In fact, New York has implemented several changes, in legislation, court intervention, funding, etc. to address the impact domestic violence has on socio-economic conditions.  From the most recent development of the Family Justice Center (which is currently in only a few counties) to the ubiquitous Integrated Domestic Violence courts now up and running in most of the state.  More and more developments are constantly being instituted and implemented to address the ever-changing paradigm of domestic violence. 

           Look for the upcominig discussions where we will explore related topics on the issue of domestic violence.

          Although many states, including New York, have laws criminalizing failure to pay child support, the imposition of the penalty is still subject to scrutiny by the U.S. Constitution.  The Fourteenth Amendment of the U.S. Constitution states “that no person shall be deprived of life, liberty, or property without legal protection in the form of being present at a hearing, having the opportunity to be heard, and having the opportunity to present evidence”.  The applicable provision of the criminal statute states: 

§ 260.05 Non-support of a child in the second degree.
 
   A  person  is  guilty  of non-support of a child when, being a parent,
  guardian or other person legally charged with the care or custody  of  a
  child  less  than  sixteen years old, he fails or refuses without lawful
  excuse to provide support for such child when he is able to  do  so,  or
  becomes  unable  to  do  so,  when,  though  employable,  he voluntarily
  terminates his employment, voluntarily reduces his earning  capacity  or
  fails to diligently seek employment.
  Failure to provide child support for one’s child in the second degree is a class A misdemeanor.    If the person has been previously convicted of this crime within the past five years, they can then be charged with a class E felony. (Penal Law Section 260.06)

         A class A misdemeanor is punishable by up to one year in jail in New York, while a class E felony is punishable by up to five years in prison.   Criminal punishment is just one of the several options the courts can utilize in sanctioning a non-custodial parent for not paying court ordered child support.  Imposing criminal sanctions only goes to perpetuate the plight that many non-compliant parents face.  Several scenarios give rise to non-payment in the first place.  First, often times the non-custodial parent becomes unemployed or underemployed and is stuck with an obligation to pay an amount that far exceeds his income.  In New York, it is the responsibility of the payor-parent to go to court to file a Modification Petition, seeking a Downward Modification.  Unfortunately, though, more often than not payor-parents are discouraged from filing these petitions or are flat out denied by the courts, thereby binding that parent to the previously imposed obligation.  Next, sometimes an obligation of support was imposed by the court on “default”, where the payor-parent was not present and therefore unable to provide information as to his/her actual ability to pay.  Consequently, a Downward Modification petition based on default has a higher probability of being granted if the default is found to be “excusable”.  And finally, inability to pay arises as a result of the court hearing from both parties but deciding that the resources of the payor-parent is adequate enough to provide for the child(ren) in the amount ordered.  This circumstance happens to be the most difficult to challenge, since a Downward Modification petition requires a finding of “unexpected or unanticipated change in circumstances”, which usually does not exist in this particular scenario.
          Nontheless, the court’s imposition of the criminal sanction can be the most debilitating in any of these scenarios since child support, whether sporadic or persistent, is usually provided by earned income.  Thus, any period of incarceration can jeopardize current employment or future employment since criminal convictions minimizes one’s chance of being or becoming employable.  Furthermore, no real purpose is served by incarceration since the payor-parent has no real incentive to pay, the child(ren) do not benefit financially, emotionally or psychologically and the courts’  calendars remain overwhelmed with recidivists who could have been spared if they were given the opportunity to be heard.

          In South Dakota, there was a recent decision by that state’s highest court, that found that the imposition of jail for failure to pay child support was unconstitutional because it violated the Fourteenth Amendment.  The Fourteenth Amendment of the U.S. Constitution states “that no person shall be deprived of life, liberty, or property without legal protection in the form of being present at a hearing, having the opportunity to be heard, and having the opportunity to present evidence”.  A court order requiring a man to spend 10 days in jail every time he failed to pay monthly child support was unconstitutional because it amounted to criminal punishment imposed without a trial, the South Dakota Supreme Court ruled.  In its unanimous opinion, the high court said a circuit judge must re-examine the case to determine the proper penalty for the payor-parent, who was found to owe nearly $63,000 in support for two children.  Athough the circuit court judge found that the payor-parent had an ability to pay, and was therefore in contempt for not paying, the high court stated that because the contempt finding was criminal in nature, that he had the right to a trial.  So it was not the criminal element of the punishment that made the circuit court’s finding unconstitutional, but the imposition of the recurring sentence of ten days in jail, without affording him the opportunity to present a defense was the problem.

If Senator Larry Craig were convicted in New York, could he withdraw his guilty plea? 

          Well, no.  Although in New York state most criminal convictions end up being resolved by plea bargaining, that is a “bargain” that is not returnable.  Plea bargaining is when the prosecuting attorney (referred to as District Attorney) makes an offer to the criminal defendant to plead guilty either to the crime charged or to a lesser included offense, in exchange for a lighter sentence.  A plea bargain, although to many  it is considered a misnomer because very often there is no bargain, is usually the most efficient way to dispose of a criminal case.  Agreeing to a plea bargain saves the court, the attorneys and the residents time while granting the defendant control over his or her own fate.  Plea bargains also obviate the need for costly and time-consuming investigation, extensive trial preparation, and excessive use of state and local resources.  Plea bargains are typically offered in cases where the District Attorney does not  wish to proceed to trial for various reasons.  For example, often times the prosecuting attorney does not want to go to trial because of the sensitivity of the case, like the impact on the victim and/or the victim’s family.  However, their reason for choosing to offer a plea  may merely be because of the unavailability of judges/courts to actually try the case. 

          Most criminal defense attorneys take a very active role in plea bargaining, which may commence at any phase of a criminal case, from as early as the arrest up until the point of jury deliberation.  The factors usually taken into consideration, from the defense attorney’s perspective, are the strenghts and weaknesses of the case, the impact of a jury conviction would have on the client’s immigration or employment status or sometimes the political or social climate surrounding the case.   

The Courts Cover all Bases in Securing a Guilty Plea
          Defendants who plead guilty must waive three important constitutional rights—the Fifth Amendment right to self-incrimination, Sixth Amendment right to jury trial, and Sixth Amendment right to confront and cross-examine one’s accusers. The Supreme Court has determined the constitutionality of plea bargaining in Boykin v. Alabama (1969), where the Court held that the record must disclose that the defendant voluntarily and understandingly pled guilty. In fact, in Santobello v. New York (1971), the Court described plea bargaining as “an essential component of the administration of justice. Properly administered, it is to be encouraged” (p. 260).  However, even with these rulings by the highest court, there are still concerns  with coercion, false pleas, and injustice.  While others raise concerns about the excessive leniency, reduction of deterrence, and the impact of the law from plea bargaining.

          Once an individual opts for a plea bargain, whether it be to a misdemeanor or felony offense, the judge ( and sometimes the prosecuting attorney)  requires a full allocution (where the defendant is questioned on procedural and substantive issues) before the plea is accepted.  This questioning is a method used to ensure that the defendant:

1) is coherent, sober and lucid;

2)  is under no duress or influence;

3) is aware of the crime charged with and the sentence;

4) understands the constitutional rights he/she waives and

5) is satisfied with his/her counsel. 

These questions (and defendant’s responses) assures the court, and the prosecuting attorney, of the defendant’s willingness to enter the plea of guilty and understanding of so doing, minimizing any constitutional challenges  defendant may raise later.

          In New York, withdrawal of a plea of guilty is in the discretion of the trial court.  In People v. Davis (1998)   the court found that a request to withdraw a guilty plea will rarely be granted unless there is a finding of innocence, mistake or fraud that served as the basis of the plea.  A defendant’s claim of intoxication, failure to understand because of illness or innocence (even where another person claims responsibility for the crime pleaded to) will rarely serve as the basis for a withdrawal of a guilty plea.   Even where a defendant’s immigration status is at stake  (immigration status is in jeopardy even for a plea to domestic violence), which is typically the reason for such request for plea withdrawal, rarely will they be given the chance to change their plea.

          In Senator Craig’s case, the decision to withdraw his plea was based entirely on the impact of the conviction on his political career.  However, not only does he fail to make a sound argument as to why he should be able to withdraw his plea, he basically sealed his fate when he signed the Petition to Enter a Plea of Guilty.  In that affidavit he indicated that he was aware of the charges brought against him and he admitted guilt to those charges.  Therefore, his current challenge to the voluntariness of the plea or knowingness of the chages will be more than likely be unsucessful.   Had he hired an experienced criminal defense attorney, he would have been informed of this.
 

          The “holistic” approach has been applied to nutrition, health or healing and therapy for thousands of years.  Now there is a holistic approach to divorce.  Collaborative Divorce is the most recent trend in matrimonials.  Collaborative divorce allows the the practitioner and the parties to address the economic, emotional, psychological, financial aspects of the divorce collectively, instead of parts of it.  Both spouses are represented by an experienced attorney throughout the process and everyone enters into an agreement where they commit to work toward working out a settlement that addresses the concerns of the couple, instead of interests of respective clients.   The parties and the lawyers have a four-way conference to address all issues after signing an agreement that binds the parties to several things, including not going to court.

          There are several advantages to the collaborative divorce, from it being economically feasible (since the rates are usually less than contested divorce rates) to its consideration of the emotional turmoil the parties and their children face during the typical divorce process.  One additional adanvantage is that if the parties are unable to come to a settlement agreement after exhausting several attempts, the attorneys must withdraw and the parties must find new attorneys and start the process all over again or proceed to court.  This important stipulation is premised on the belief that parties are more inclined to agree if they know that they will have to start all over, thus enduring more time and expenses in resolving the divorce.  In  this type of divorce, child custody, child visitation, child support, property distribution will all be addressed and although the parties should eventually agree on all of these issues, if they hit a snag experts in these areas may be brought in to help facilitate a resolution.  However, once another professional member has been brought into this process, that expert may not work with the client again outside of this process.  

Collaborative divorce is now available in 35 states.  New York, happens to be one of the states who recently started to utilize collaborative divorces. 

Difference between Mediation and Collaborative Divorce:

          Although collaborative divorce resembles mediation in its method of trying to avoid litigation, but they are very different.  For one, in mediation there is one neutral neutral mediator and the parties are usually not represented by counsel ( although they have the option to retain counsel).  And the mere fact that the adversarial nature that counsel usually brings is missing, strongly impacts the process of resolving all of the thorny issues.

          In collaborative divorce, although the objective is to avoid going to court, as it is in mediation, there is no binding agreement between the parties to prevent them from doing so in mediation.  In fact, with the parties appearing pro se in mediation, they are forced to advocate on their own behalf which does not necessarily lend itself to an effective and expeditious resolution, thus it is not uncommon for the mediating parties to end up going through a traditional contested divorce.
          Both methods require that the parties be open and honest about all of their assets, but in mediation, there is no real incentive to be forthcoming since there rarely an experienced attorney advocating on behalf of either party.  In other words,  the likelihood of the inexperienced party being able to ascertain the scope of potential assests is minimal.  However, at any time during mediation any party can retain an attorney to represent them in the mediation or they can forego the process altogether and pursue the divorce by going to court.  Unlike in collaborative divorce, the lawyers and the parties are bound to the agreement to either proceed without going to court or abandon the process altogether and start all over again.  So, needless to say the parties’ intentions in choosing to go the collaborative divorce route must be to genuinely resolve the issues without court intervention.  Mere conflicts or challenges do not warrant giving up on the process entirely, the lawyers will bring in experts to help resolve the contentious issues.

            The future of collaborative divorce looks promising since there are several reasons why it would appeal to practitioners and clients alike.   A focus on the individuals’ needs in every sense is what matters to most of us.