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March 2012 Verve: A Victim Centered Perspective on CT’s Diversionary Practice

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Given the prevalent use of diversionary methods in Connecticut, it is essential for the State to critically examine how and whether the batterer intervention diversionary methods being used in domestic violence cases actually speak to the needs and concerns of victims.

 If structured and applied appropriately, diversion can be a useful tool in our coordinated community response. However, it must only be used in appropriate cases and not merely as a tool for case management.

 

Primary Diversionary Methods in Connecticut

 

Connecticut’s Judicial Branch reports 31,053 family violence criminal cases in calendar year 2010. A significant portion of these cases are categorized as diversion eligible and referred to CSSD’s Family Services Division for formal Pre-Trial Supervision. Some of the diversionary methods, both formal and informal, that are frequently utilized to dispose of domestic violence cases in Connecticut include:

 

  • Individual Therapy/Substance Abuse Counseling: An offender self-selects a licensed practitioner, engages in an undetermined number of sessions and is then granted an “earned” nolle.
  • Alternatives to Incarceration/Alternatives in the Community (AIC): An offender is formally referred by the court to attend a state funded Reasoning and Rehabilitation and/or substance abuse services program and is then granted an “earned” nolle.  
  • Family Violence Education Program (FVEP): FVEP is the statutory diversionary program. If an offender is eligible under the statute, he/she then applies to the court. If the application is granted, the offender is entitled to a dismissal of the charges after completing a 9 session batterer intervention program.
  • Explore & Evolve: Both Explore and Evolve were originally designed as post-conviction programs. At 26 and 52 sessions respectively, they represent a much more intensive intervention strategy. A few courts in Connecticut have creatively, and with success, begun using these programs as pre-trial interventions by using the conditional plea/deferred sentencing model.

 

Recidivism: Re-Arrest vs. Re-Abuse & The Need for Victim Participation

 

In a recent report to the Speaker’s Domestic Violence Task Force, the Judicial Department reported 85% of all individuals referred to the FVEP “successfully complete” it. Of those individuals who “successfully complete,”

12% are re-arrested within the first twelve months. The Family Violence Education Program is therefore an inadequate solution in a full 25% of all cases referred to it. If the completion and recidivism statistics outlined above are applied to the 4,577 participants who were referred to the program in FY 09/10, 686 individuals would not have successfully completed the program and an additional 488 of those who did complete would have been re-arrested for domestic violence within just the first year. This represents a total of 1,174 victims.

 

More importantly, those 1,174 cases represent only the cases wherein the failed intervention can be documented through official records. However, “[t]he chances of being re-arrested for domestic abuse is only a fraction of the chances of [actual] re-abuse, so the use of official records as an outcome under-estimates recidivism and over-estimates the effects of the batterer program.” In fact, a frequently cited study reported that the proportion of arrest to victim-reported abuse was 1 in 35 (i.e. for every reported arrest, there were 35 unreported assaultive actions). With a documented failure rate of 25%, it is staggering to consider what the failure rate would be if the State started involving victims in the evaluation process to obtain a better understanding of the true recidivism rate.

 

Connecticut is an Outlier in Its Approach to Diversion

If a 9 week batterer intervention program were the best Connecticut could offer, a systemic failure rate of at least 25% within the first year would be more acceptable. However, according to batterer intervention program standards compiled by the Batterer Intervention Services Coalition of Michigan, Connecticut’s 9 week program appears to be the shortest formal batterer intervention program in the country, whether pre-trial or post-conviction. As depicted in the chart below, overwhelmingly, other states have opted for a more intensive intervention, with only four states supporting a program of less than 18 weeks. Why is Connecticut such an outlier?

  

That a 9 week batterer intervention program is an insufficient accountability mechanism is not news. There were, in fact, two reports offered back in the 1990’s that spoke to the need for a more intensive approach. In 1993 the Office of Policy and Management’s Statistical Analysis Center for Criminal Justice released a report that highlighted the extensive disagreement amongst stakeholders with respect to whether or not the then six week program was a sufficient amount of time to “satisfy the goals of the offender education program.” A few years later, a separate report was submitted as a result of a study commissioned by the Family Division of the Superior Court and the Office of Alternative Sanctions to investigate the effectiveness of the Family Violence Education Program. This report indicated that “the conclusion that twelve weeks is more effective than six weeks is robustly supported by the results.” Additionally, it suggested that the “critical number of sessions” necessary to bring about change for most men was yet to be discovered, but that clinical experience and anecdotal data suggest it may be in the range of 18 to 24 weeks and went on to recommend further investigation. Twenty years ago, the rest of the country started acting on reports such as these. However, Connecticut continues to insist that the appropriate pre-trial length of intervention is 9 weeks.

 

Scholarship from National Authorities

 

Over the last 20 years, national bodies have published several compilations of recommendations and best practices. Two that are particularly relevant in evaluating Connecticut’s diversionary methods are: the Model Code on Domestic and Family Violence (hereinafter Model Code), published in by the National Council of Juvenile and Family Court Judges; and Prosecution Diversion in Domestic Violence: Issues and Context, published by the Battered Women’s Justice Project. The issues and recommendations highlighted by both publications stand in stark contrast to Connecticut’s approach.  

 

Model Code on Domestic and Family Violence: In 1994,  the NCJFCJ issued a Model Code meant to serve as a sample statutory/practice code that outlined effective and innovative approaches to domestic violence. Despite the fact that the Model Code was published 18 years ago, some of the approaches recommended in the Model Code are still considered somewhat radical by Connecticut practitioners. This includes Sec. 218 of the Model Code, which states unequivocally that diversion should not be utilized at all in the context of domestic violence criminal prosecution. Instead, the Model Code cites deferred sentencing as the preferred method. The Model Code recognizes that the deferred sentencing model entirely removes victims from the equation – relieving them of the burden of cooperating with the prosecution. Once a guilty plea is entered, the success or failure of the offender is entirely based upon his own compliance with the conditions set forth under the plea agreement.

 

Prosecution Diversion in Domestic Violence: This 2003 memorandum comprehensively identifies issues surrounding domestic violence prosecution and diversion. It highlights that there are fairly standard provisions that domestic violence commentators typically articulate as necessary components of any domestic violence diversion program. Several of these standard provisions stand in notable contrast to the current Connecticut statute:

 

  • Felonies must be ineligible for diversion;
  • The offender cannot have participated in a previous domestic violence diversion program;
  • The offender must choose within a short span of time (two to five days) whether or not to participate in the program;
  • The victim must agree to diversion; and
  • The offender must plead guilty in order to enter the diversion program.

 

Considerations for Stakeholders

 

There are many ways that the current FVEP statute, and other available intervention methods, can be utilized more effectively to ensure that diversion is being utilized appropriately and not just as a case management tool. These include:

 

FVEP Should Not Be Recommended or Granted on an Offender’s Second Family Violence Case

More than 7,000 offenders annually have their cases disposed of after completing Family Service’s Pre-Trial Supervision by a means other than the statutory FVEP diversionary program. All such offenders are then eligible for FVEP on a subsequent arrest. Where an offender has utilized diversionary methods in a prior family violence case, a second case indicates a chronic problem and requires a more intensive intervention approach than FVEP can offer.  

 

FVEP Should Not Be Recommended or Granted for Felonies or Serious Assaults

The most common domestic violence felonies are: Strangulation in the 2nd Degree, Violation of Protection & Restraining Orders, and Assault 2nd. These crimes exhibit heightened violence and/or a chronic abuse problem. While FVEP may be appropriate for the first time, low level offender, the same is not true for offenders exhibiting felony level of violence and/or disregard of court orders.

 

Good Cause is Required for Felonies

Where the court is going to entertain a FVEP application on a case involving felony domestic violence charges, the offender should at least have to make the requisite “good cause” showing. Judges should ask themselves whether or not they are requiring this showing before granting FVEP on felonies and what constitutes good cause in those cases involving heightened violence and/or a chronic problem.

 

 FVEP Should Not Be Re-Granted or Granted Where An Offender Refuses to Accept Responsibility

The Judicial Branch reports that 85% of all offenders referred to FVEP “successfully complete” the program. However, those same reports also indicate a 22% no show rate. Are we therefore to assume that at least 7% of all individuals referred to FVEP fail to attend the program and are then placed back into the program after having shown a complete disregard for the diversionary opportunity presented to them? Studies cited by Edward Gondolf indicate that non-compliance with a court mandated program is the strongest predictor of re-assault. By re-ordering offenders into FVEP, the criminal justice system is providing victims with a false sense of security and doing little more than case management.

 

Utilize the Full Authority of the FVEP Statute

Under the FVEP statute, the court has the authority to keep the case open for a full two year period. The court also has the authority to order conditions over and above the formal FVEP classes. Some courts add in conditions like substance abuse treatment. A few have creatively begun to substitute the Explore Program classes in lieu of the FVEP classes in cases that involve a first time offender who may be appropriate for a diversionary disposition, but who exhibits a pattern of behavior that makes FVEP particularly inappropriate.

 

The Dangers of Inappropriate Intervention

 

In addition to providing victims with the false belief that the offender is going to be rehabilitated as a result of court ordered intervention, there is also the question of whether or not sending someone who exhibits heightened violence or a chronic pattern of abuse to a program as short term as FVEP does nothing more than create a more sophisticated batterer. Some have speculated that men who participate in inappropriate batterer intervention merely learn how to avoid physical abuse by substituting more economical and legal forms of control, such as intimidation, isolation, protracted child custody and visitation cases.

 

DVCC360 recognizes that domestic violence diversion is an issue that generates great debate and disagreement. However, because inappropriate intervention can cause more harm than if the victim never reached out to the criminal justice system in the first place, we will continue to encourage a healthy dialogue on the issue of diversionary practice in Connecticut in an effort to enhance our community’s collective efforts to enhance victim safety and adequate offender accountability.  

 

FOR MORE INFORMATION, PLEASE CONTACT DVCC360



[1] See State of Connecticut Judicial Branch, Information regarding dual domestic violence arrest, 2008-2010 (Oct. 2011).

[2] See C.G.S. § 46b-38c(h).

[3] Evolve and Explore are referenced here, not as common diversionary tools, but to highlight pre-trial strategies other than FVEP that have been implemented successfully within Connecticut’s current statutory structure.

[4] See State of Connecticut Judicial Branch, Report of the Principles and Effectiveness of The Family Violence Education Program and Connecticut’s Domestic Violence Dockets and Related Programs, submitted pursuant to section 20 of P.A. 11-152 An Act Concerning Domestic Violence (February 2012).

[5] See State of Connecticut Judicial Branch, Report of the Principles and Effectiveness of The Family Violence Education Program and Connecticut’s Domestic Violence Dockets and Related Programs, submitted pursuant to section 20 of P.A. 11-152 An Act Concerning Domestic Violence (February 2012).

[6] See State of Connecticut Judicial Branch Court Support Services Division, Family Violence Diversionary and Offender Programs, submitted to the Speaker’s Domestic Violence Task Force on January 10, 2011 (available at: http://www.housedems.ct.gov/DV/Meetings.asp).

[7] Bennett, L. and Williams, O., at pg. 2, Controversies and Recent Studies of Batterer Intervention Program Effectiveness, National Online Research Center on Violence Against Women, Applied Research Forum (August 2001).

[8] Dutton, D.G., Bodnarchuk, M., Kropp, R., Hart, S.D., & Ogloff, J.R.P. (1997). Wife assault treatment and criminal recidivism: An 11-year follow-up. International Journal of Offender Therapy and Comparative Criminology, 41, 9-23

[9] This information is based on a study of 39 states and their Batterer Intervention Program Standards, as compiled by the Batterer Intervention Services Coalition of Michigan (www.biscmi.org/other_resources/state_standards.html) (2002). The following states were not included in this analysis, as they either have no standards or their standards were unavailable through this compilation: Alaska, Arkansas, Louisiana, Mississippi, Nebraska, New Mexico, New York, North Dakota, Oklahoma, Pennsylvania, South Dakota, Wisconsin, and Wyoming. The chart breaks down as follows: less than 12 weeks: Connecticut; 12-16 weeks: Alabama, Ohio, Utah; 18-24 weeks: Delaware, Florida, Hawaii, Illinois, Iowa, Kansas, Maryland, Minnesota, Montana, Nebraska, Tennessee, Texas and Virginia; 26-48 weeks: Arizona, Colorado, Georgia, Indiana, Kentucky, Maine, Massachusetts, Michigan, Missouri, New Hampshire, Nevada, New Jersey,  North Carolina, Oregon, South Carolina, Washington**, Washington, D.C., W. Virginia, Vermont*; 52 weeks: California, Idaho, Rhode Island, Vermont.

[10] Connecticut Office of Policy and Management Statistical Analysis Center for Criminal Justice, “Family Violence In Connecticut: Collected Abstracts of Evaluation and Research Relating to the Family Violence Prevention and Response Act.” (June 1993).

[11] Lanza, S. et al, Part One of Connecticut’s Family Violence Education Program: A Systematic Evaluation (1995).

[12] National Council of Juvenile and Family Court Judges, Family Violence: A Model State Code (January 1994) (available at: http://www.ncjfcj.org/sites/default/files/modecode_fin_printable.pdf).

[13] Sadusky, J., Prosecution Diversion in Domestic Violence: Issues and Context, published by the Battered Women’s Justice Project (July 2003).

[14] National Council of Juvenile and Family Court Judges, Family Violence: A Model State Code, at pg 15 (January 1994).

[15] C.G.A § 46b-38(c).

[16] Gondolf, E., at pg. 4, The Survival of Batterer Programs: Responding to Evidence-Based Practice and Improving Program Operations (November 2009).

[17] Bennett, L. and Williams, O., Controversies and Recent Studies of Batterer Intervention Program Effectiveness, National Online Resea1rch Center on Violence Against Women, Applied Research Forum (August 2001).

 

 

"Since a batterer seeking counseling is one of the strongest predictors that a woman will return to her batterer (Gondolf, 1988), advocates are justifiably concerned that batterer programs not hold out a promise of hope which may become a vehicle for injury."

Bennett, L. and Williams, O., Controversies and Recent Studies of Batterer Intervention Program Effectiveness, National Online Research Center on Violence Against Women, Applied Research Forum (August 2001).

"Diversion programs for perpetrators of domestic violence, while worthwhile in intention and sometimes effective, are inadequate to address domestic violence as a serious crime."

California Senate Bill 169 (October 1995) (eliminating diversion as an option for domestic violence offenses).