Critics say justice system abuses victims who are afraid to testify

A woman is beaten black and blue by her husband or boyfriend.

She does what she hopes is the right thing: She calls the police. Then she looks to the courts to protect her.

Instead, she -- the victim -- is arrested and led to court handcuffed, only to see her abuser sitting free nearby, wearing street clothes and a smirk.

It's a common scene in local courtrooms, say those who help domestic violence victims.

"There's the victim in cuffs with criminals, and the perpetrator sitting there grinning ear to ear, saying, 'I won again,'" said Kathleen Brooks, longtime associate director of Safe Nest, a nonprofit shelter for abused women and men and their children.

Such scenes are part of what Brooks calls the "Injustice System": a policy of targeting victims of domestic violence who refuse to testify against their abusers.

Victims often are too terrified or ambivalent to testify, Brooks said.

"If I'm a battered woman, I'm trying to prosecute the person I have been married to, lived with, loved," she said. "I am trying to press charges against somebody who has threatened to kill me. You can understand the sheer terror of going forward against this person who may have beaten you senseless."

Brooks got so fed up with the "one too many stories" of women who were subpoenaed to testify and were arrested for not showing up that she penned a scathing indictment of Clark County and Las Vegas prosecutors. The piece ran on the front page of Safe Nest's spring newsletter, which is distributed valleywide.

"I am the voice of all of us who are sick and tired of watching domestic violence perpetrators get away with murder," Brooks wrote in the Safe Nest Sentinel. "Quite simply, it is patting the batterers on their backs and reinforcing the idea that the victim is to blame."

Clark County District Attorney David Roger acknowledged that the courtroom scene Brooks described is plausible.

"Sure," he said. "Unfortunately, when someone's been arrested on a material witness warrant, they're in custody."

But Roger defended the practice of issuing such warrants for certain victims who don't respond to subpoenas.

It's often extremely difficult to prosecute a batterer without a victim's testimony, he said.

"If we believe there are extenuating circumstances where this person is going to really hurt the victim next time, we choose to retain the option of forcing women into court," he said, adding, "Victims' rights groups are not in favor of that."

Brooks said such a practice is unconscionable.

"How dare they think that is OK? How are they going to make the person they can't keep safe testify against an abuser who may kill them? It's basically throwing them to the wolves."

The Clark County district attorney's office and the Las Vegas city attorney's office have "no-drop" policies for domestic violence cases, which conform with a Nevada law that was passed in 1997.

Brooks said prosecutors should employ "victimless prosecution" for domestic violence cases in which the victim is afraid to testify. It uses evidence other than victims' testimony to prosecute batterers.

Prosecutors could use 911 tapes, photographs, statements made to police at the scene and other evidence, she said.

That way, the case could go forward and the perpetrator could be punished without further traumatizing the victim.

Roger said prosecutors go forward without a victim's testimony when possible.

But "there are a great many cases where we can't prove the case without a victim," he said. "Our job is to save lives. If it means we have to compel people to come into court to testify, we're going to do that in limited circumstances."

Asked whether such an approach could land a victim in greater danger by angering the batterer, Roger said, "That's difficult to determine."

"Do we give this person who has beaten their wife to a pulp a pass because the victim is afraid to step forward? Or do we compel the victim to come into court to have a successful prosecution and stop the cycle of violence?"

Eighty-five percent of domestic violence victims are female, according to Safe Nest, and 31 percent of women report being physically or sexually abused by a partner at some point in their lives.

Nevada consistently ranks among the highest of U.S. states for its number of domestic violence related homicides, Brooks said.

Roger said he didn't know how many domestic violence victims had been arrested on material witness warrants in Clark County, but said it rarely happens.

Brooks wasn't sure how many such victims Safe Nest has encountered.

"I heard enough stories from (victim) advocates that I work with that I wrote the article," Brooks said. "I hear more and more stories about victims getting arrested."

Safe Nest was unable to connect the Review-Journal with a domestic violence survivor willing to talk about being subpoenaed and arrested for failing to appear in court, even when the survivor was offered anonymity.

"My guess is they're terrified," Brooks said. "They don't want to relive it."

Las Vegas City Attorney Brad Jerbic said prosecutors have used material witness warrants to force victims to court on very rare occasions.

"They were used only in situations where there was danger to the victim and danger to the public at large," Jerbic said. "In one case, the victim was in a car. The batterer battered her, lost control of the car and hit somebody else. The batterer then left the victim and started hitting a passenger in another car."

The city attorney's office prosecutes misdemeanors that occur in the city of Las Vegas and represents the city in civil matters.

Jerbic noted that prosecutors nationwide have long struggled over what to do when domestic violence victims won't testify after filing a police report.

"They have gone back and forth; there's no consistent pattern," he said. "If you bring a victim in, you might revictimize that victim. On the other hand, 75 percent of victims recant their testimony because they are trapped in the cycle of violence and are afraid."

It's "almost impossible" to prove a domestic violence case without the victim's testimony, Jerbic said.

He acknowledged that "there's an argument" such testimony could place the victim in further danger.

"I won't deny it," he said. "It's a very fine line to walk."

But without successful prosecution, he said, the batterer may "go back to the cycle of violence and the victim ends up dead at the end of the day."

Jerbic said he saw Brooks' newsletter article and was "very disappointed I didn't get a personal call" to discuss the issues addressed.

"I consider Kathleen Brooks and Safe Nest an ally," he said.

Brooks said she didn't call Jerbic, because "I didn't believe anything would happen if I called him."

A marriage and family therapist who has worked for Safe Nest for nearly 30 years, Brooks said her relationship with the city attorney's office began to sour about a decade ago, when she was informed the office would issue subpoenas to victims who did not show up in court to testify against their abusers.

Jerbic said the "no-drop" policy put more pressure on prosecutors to move cases forward, and they usually need a victim's testimony to do so.

But he emphasized that material witness arrests of victims occur extremely rarely.

"It's a very, very small number," he said.

Brooks said she wrote the newsletter article in hopes that prosecutors would reconsider how they handle domestic violence cases.

"It's not about being angry. It's to create a way to get people to hear. I want them to listen to us and to victims."

Both Jerbic and Roger said they are willing to sit down with Safe Nest administrators in an effort to iron out their differences.

Brooks said she plans to write more about the "Injustice System" throughout the year.

"My goal is not to alienate, it's a call to action. If I don't hear answers, I'll keep yelling louder."

Contact reporter Lynnette Curtis at lcurtis @reviewjournal.com or 702-383-0285.