Many survivors of ongoing abuse use violence against their batterers. Some of that violence is legal and some is not. Communities need to be organized to respond in ways that prioritize the safety of the survivor of ongoing abuse who may use force against their batterer in an attempt to stop the violence.
Police officers, prosecutors, and advocates need to make distinctions between battering and self-defense or resistive force. However, determining this can be challenging. Many batterers will claim to be the victim of abuse by the person they abuse, making it sometimes difficult to determine who is the batterer and who is the victim. This also can be challenging in cases involving two people of the same gender. Without tools and strategies to support accurate assessment, practitioners may make decisions that protect neither party, may embolden the batterer, and may make survivors more vulnerable to violence by the batterer. Further, actions taken based on inaccurate assessments can create serious consequences for survivors and their children in any subsequent child protection, custody, or immigration matter (see below for a list of tools and resources to support practitioner assessments).
AIR details a response to ensure survivors of ongoing battering who have been arrested for violence also receive critical confidential advocacy services (these survivors are hereinafter referred to as “victim-defendants”). During the initial AIR contact, if the advocate suspects they are talking to a person who is the batterer in the relationship, they pass this information on to the follow-up advocate who will contact the potential victim-defendant via phone or jail visit. The initial AIR call may indicate that the advocate is talking with the batterer, regardless of their gender, in the following ways:
- knowing/suspecting that the arrested party received or is currently receiving services from the advocacy program
- responses to risk assessment questions (“I’m not afraid of them” or “they could never kill me”)
- comments they make about the incident (“they’re crazy” or “they’re drunk” or “they committed marriage fraud” or the story doesn’t really make sense)
- review of the police report
- other indications that their story doesn’t add up
There are varying perspectives on what advocates should not talk about with victim-defendants, especially related to the specific incident for which they were arrested. There is, however, consensus on what the advocate should talk about, including:
- assess the survivor and their family’s safety concerns and the impact of the arrest
- discuss the court process
- discuss the history of violence in the relationship
- discuss the implications of a guilty plea and unique considerations for non-citizen survivors
- explain release options and criminal no-contact orders
- and, importantly, discuss the availability of an attorney to help with the defense in court and/or with immigration relief
Working with law enforcement agencies to implement self-defense and predominant aggressor determinations by patrol response and investigators is one key to reducing the number of battered women who are arrested (read about the top 3 law enforcement practices to reduce the arrest rates of battered women in Praxis Rural Digest, Issue 2). Advocates should also have proactive conversations with the defense bar about the advocate’s role in assisting victim-defendants (see also Working with Battered Women in Jail: A Manual for Community-Based Battered Women’s Advocates). They have unique insights regarding whether court rules or state laws on confidentiality and privilege adequately protect confidential communications with the victim-defendants. They can also discuss ways information advocates receive can assist with the defense strategy (with permission from the victim-defendant).
For survivors of ongoing battering who get arrested, an advocate’s role is critical to building responses that account for the fuller context of their use of violence, for both individual victim-defendants and all survivors. This help is particularly important for LEP and/or Deaf survivors when law enforcement officials did not use language access services for the most effective communication and for immigrant survivors whose status may be jeopardized due to an arrest.
Listen to the following rural webinars for more guidance on advocacy with victim-defendants:
- When Victims of Battering are Charged with Crimes, a conversation with Cindene Pezzell from the National Clearinghouse for the Defense of Battered Women
- Advocacy on Behalf of Battered Women Who Use Force, a conversation with Laura Connelly, Program Director of Advocates for Family Peace, a rural community-based advocacy program in northern Minnesota.
Explore the following resources, strategies, and tools to support practitioners in self-defense and predominant aggressor assessment:
- 3 questions to assess for risk & danger in cases of battering
- The Blueprint for Safety Practitioners’ Guide to Risk and Danger in Domestic Violence Cases
- Blueprint for Safety Appendix 1C: Trapraxisinternational.org/…/february-2014-1ining Memo – Interventions with Victims of Battering as Suspects or Defendants
- LGBTQIA specific tools:
- Immigrant specific resources
 NCDBW is available to offer support,