Domestic abuse victims frustrated by gaps in safety net

So many battered women have lost faith in Hawai'i's criminal justice system that many are not reporting their beatings and some even say the abuse can be more tolerable than the trauma of dealing with unsympathetic people in a grueling judicial process.

"The system that was designed to protect us ultimately is failing us," said Dara Carlin, a domestic-violence survivor and advocate. "The atrocities that happen are just disgusting."

That lack of faith reflects a process that is unsatisfying to many victims and their families, even when police catch the abusers and prosecutors get convictions — especially if the offenders receive little or no jail time.

Many victims also express disgust about the civil side of Hawai'i's judicial process, though many women turn to the civil courts to get protective orders to try to prevent future abuse.

The distrust of the system is not surprising:

  • News about case outcomes considered outrageous quickly spreads in the domestic violence community. In one recent case, a Honolulu judge gave sole custody of a divorcing couple's two teen daughters to the husband even though Child Protective Services recommended against it, partly because the husband had sexually molested a teen stepdaughter, court documents show.
    Some criminal prosecutions languish because the alleged abusers dodge police or simply can't be located, and authorities have an inefficient "penal summons" system for finding them.
  • In many misdemeanor cases, Honolulu police do not take photos of a victim's injuries, which can be key pieces of evidence. Without photos, prosecutors say their job of getting convictions is tougher.
  • So many women have opted not to report their beatings that abuse calls to police statewide have plunged 64 percent over the past decade — even though virtually everyone in the domestic violence community says Hawai'i's problem is not getting any better and some believe it's getting worse, particularly with the economy sputtering and illicit drugs rampant.
  • But even as the calls to police have plummeted, the number of protective orders issued by Family Court in domestic-abuse cases has surged 80 percent over the past decade. Some believe that trend is a more accurate reflection of Hawai'i's domestic violence problem.

Police and prosecutors are unsure why the abuse calls are down so dramatically. But dozens of victims, their relatives and advocates have told The Advertiser that the system is widely perceived as broken and that many battered women whose cases have been pursued criminally or civilly found the experience demeaning, abusive and frustrating, discouraging reporting of future abuse.

The huge drop in calls to police in turn has led to a dramatic decline in arrests and prosecutions under Hawai'i's main domestic violence law, which covers physical abuse to family or household members. From the mid-1990s through the mid-2000s, the number of arrests under the abuse statute fell 31 percent and misdemeanor cases referred to prosecutors dropped 34 percent, according to the most recent data from the attorney general's office. With fewer convictions, fewer offenders are ordered to attend intervention classes.

The declining numbers have come even though legislators in the 1980s and '90s strengthened Hawai'i's abuse law to hold violators more accountable. Those revisions included lengthening sentences for repeat offenders. But if fewer people are being prosecuted under that law, the tougher provisions aren't being applied as often, potentially putting more women in harm's way, advocates say.

Gaps in the domestic violence system have received heightened attention in recent months as Hawai'i struggles to deal with a problem that has grabbed headlines because of a slew of high-profile murders. Statewide, nine deaths this year have been linked to intimate-partner violence, including at least three murder-suicides. Police suspect a fourth murder-suicide occurred last month at Ko Olina but are awaiting autopsy results to confirm that. Abuse cases usually increase at this time of year because of the added stress linked to the holidays.

Even though Honolulu is one of the safest major U.S. cities in terms of violent crimes overall, the state almost every year since 1997 has topped the national average in domestic-violence homicides per capita, according to an Advertiser analysis of state and federal data.

Victims and advocates say a dysfunctional system of accountability is a key reason Hawai'i has made little progress in stemming the domestic violence problem.

Carlin and others cite cases like the one in which CPS recommended that the abusive husband not get sole custody of his two daughters but was granted that anyway.

In a confidential report to the court, CPS noted that the man had been physically abusive to his wife, had a serious alcohol problem and had sexually molested his stepdaughter, according to court documents filed by Lynne Jenkins McGivern, the wife's attorney. One of his teen-age daughters even told a teacher that her father laid down naked in her room while he was drunk, scaring her, the documents say.

"It defies reason and common sense for the court to completely disregard this history," McGivern, former head of the prosecutors' domestic-violence unit, wrote in the July court filing.

In another document filed in September, McGivern said the husband had not complied with any court orders in the case, the court had done "absolutely nothing to exact compliance" and she described the case as "completely out of control."

Yet the court, following the confidential recommendation of a judiciary unit that investigates such cases, this month awarded the husband sole legal and physical custody of the two daughters, making permanent a temporary arrangement that was approved in June. In his Dec. 1 custody order, Judge William Nagle III noted that the mother abandoned the two girls for three weeks last year to make an unplanned trip to Iowa, described her actions as self-centered and vindictive and said the husband produced credible evidence that she physically and psychologically abused the children.

The order, however, did not address the three main issues, including sexual molestation, raised by CPS about the husband. Even if the court deemed the mother unfit to have the girls, how could a judge justify leaving them with a man with such a checkered past, Carlin and others asked.

Additionally, the husband's abuse allegations against the wife never have been confirmed by a third party, McGivern said in the September court filing.

"Sometimes, I just break down crying because the system is so broken," said the wife, who asked not to be named. "If I had known then what I know now, maybe I should've just put up with the abuse."

Hawai'i's domestic-violence problem sometimes is referred to as a hidden one because so many cases go unreported, and the victims, mostly women, suffer in silence. They don't contact authorities for many reasons, including cultural, religious and financial ones.

But the negative perception of Hawai'i's criminal and civil justice system is commonly cited. And that perception continues to spread.

When a University of Hawai'i assistant professor who is researching gaps in the domestic-violence safety net recently asked service providers about barriers, their responses frequently mentioned the criminal justice system.

"You see the frustration building with women who are trying to be safe and trying to trust the system," said Charlene Baker, the faculty member doing the research.

No one knows for sure how many victims don't report their abuse because of distrust of the system — or for any other reason. Such data would be virtually impossible to track.

But Malia Pierce, violence prevention program director for the Mediation Center of Moloka'i, estimated that less than 50 percent of abuse incidents are reported to police because battered women believe the system won't protect them and because they would face so many hurdles trying to leave their abusers.

"There's no faith in the legal system," Pierce said. "It's a lot easier for women to just go home — and they do."

The danger of not reporting, though, is that the violence rarely is isolated and often tends to escalate in severity, increasing the potential for even more serious injury or death. Of 17 domestic-violence murders from 2000 to 2002 the state has analyzed as part of a fatality-review project, only five of the victims accessed domestic-abuse services prior to the killings.

The level of distrust in the system is partly pegged to the repeated times victims usually have to tell their stories, often to unsympathetic or skeptical ears. And after all is said and done, perpetrators frequently are not held sufficiently accountable — if they're held accountable at all, victims say.

"The physical abuse can sometimes be more tolerable than the actual process of trying to get justice for it," said domestic-abuse survivor Joy Lacanienta, who was beaten by her ex-husband, got a 35-year protection order against him but has seen nothing come of the many alleged violations she has reported to police since 2002.

A 2005 criminal case charging Lacanienta's ex-husband with violating the protective order has languished because authorities were unable to find him to serve a penal summons. He is believed to be on the Mainland. Because of the time lapse, the case probably never will be prosecuted.

"All the abuser has to do is violate the protective order and go to another state, and he's scot-free," said Lacanienta, who has moved five times since her divorce to try to keep her location secret from her ex-husband.

She said her former husband has contacted her as recently as May, violating the protective order. In another previous instance, he mailed her a steakhouse gift card when she remarried, and it had bulls-eye targets drawn over the heads of two bulls on the card, according to Lacanienta. He also has left letters for her at their child's babysitter and school, all in violation of the protective order, she said.

"If an abuser is well informed about the gaps in the system, (he) can get away with murder," Lacanienta said.

Her ex-husband could not be reached for comment.

The family of murder victim Jenny Hartsock also found the system dysfunctional. Her killer, parolee Roy Hartsock, was sentenced in September to life in prison with the possibility of parole.

Hartsock's family believes paroling authorities failed to sufficiently monitor the convicted felon in the months before he stabbed Jenny in January.

At the time of the stabbing, Roy Hartsock had nearly 30 convictions, including several for violations of a protective order and domestic abuse. He was on intensive parole, the highest classification of post-prison monitoring, for a burglary and assault conviction and got married to Jenny when he was released from prison in July 2007.

If the Hawai'i Paroling Authority had done its job, it would have discovered that Hartsock was frequently violating terms of his parole during their troubled, six-month marriage, and he should have been sent back to prison well before the killing, sparing Jenny her life, according to Tracey Uejo, her sister.

Several months before Jenny's death, she was seriously injured in what her husband told police was an accident. He said he was cleaning a knife when he tripped and fell on her as she slept in a bedroom. The knife landed with such force that it went completely through one of Jenny's legs and into the other. Uejo said Hartsock fooled authorities into classifying the stabbing as an accident.

"The system completely failed her," Uejo said.

But Max Otani, the paroling authority's administrator, said Hartsock was properly monitored while on parole. The monitoring included regular phone checks, weekly drug testing, a weekly visit to his parole officer and four visits, two unannounced, by officers to his home and workplace, Otani said.

During those six months, Hartsock committed two technical parole violations for not immediately answering a spot-check phone call at night and for not telling the authority that his full-time job, a requirement, had been cut to part-time hours, Otani said. Neither violation warranted a trip back to prison, he said.

"I think we provided the supervision that was required for this case," Otani said.

Although the criminal justice system has many shortcomings, people who work in it generally are well intentioned but must deal with limited budgets, large caseloads and little or no training in domestic violence, attorneys and others say. What's more, some believe people with domestic problems are overly reliant on the legal system to solve their problems.

On O'ahu, three courtrooms are dedicated to domestic-abuse cases, most of which are charged as misdemeanors. No other crime has its own set of dedicated courtrooms.

In responding to criticism of the judicial system, the Judiciary noted that judges' decisions always are subject to appeal. The agency also said judges are held accountable in more ways than any other public officer.

The dissatisfaction with the criminal-justice system is partly linked to the inherent tension that exists between the accused and the accuser in an adversarial court setting. In that setting, the defendant has a fundamental right to due process and to confront his accuser.

"Part of the process can be painful and re-traumatizing, but it has to happen because the respondent is entitled to a fair hearing and due process," said Family Court Judge Michael Broderick, who heads a special division that handles domestic-abuse and other types of cases. "There's a fundamental tension there."

Because of that tension, the judge's responsibility is to create an environment that minimizes the trauma as much as possible, Broderick said.

Rom Trader, the deputy prosecutor who oversees the division that handles domestic-violence cases, believes the system tends to favor the defendant's rights when weighed against those of the victim. "The reality is, in the shake, the victims are going to get shortchanged," he said.

While many victim advocates agree that the process tilts too much in favor of male defendants, some attorneys and others believe women in such cases get all the breaks.

"It seems like all you have to do is cry wolf, and there's a whole support system for you," said Scott Strack, a family law attorney who has represented men and women in abuse cases. The legal system, he said, needs more balance.

Broderick, who has handled more than 2,000 temporaryrestraining order cases, said he has seen some in which the woman was unfairly trying to get back at the man. One time a woman admitted she had exaggerated allegations because the man had left her for another woman. Broderick denied her restraining-order request.

The judge said he does not see many of those types of cases, and when he does, he dissolves the TROs.

The parents of murder victim Felicia LaDuke believe the system needs much more than just balance.

Roughly three years after their daughter was killed by Army soldier Jeffery White near Ka'ena Point, Steve and Donna LaDuke of Minnesota still are battling in Hawai'i courts to get legal custody of Elijah, Felicia's only child. White, her former boyfriend, is the father.

Elijah, 4, currently lives with the LaDukes, but they only have "foster custody" of the child.

The couple's efforts have been stymied because White, who is serving a life prison term with no possibility of parole, has objected. Although the convicted murderer's parental rights were terminated by a lower court in August 2007, he filed an appeal with the Hawai'i Supreme Court. The appeal has not been decided, and until it is, the custody issue is on hold.

The Department of Human Services, which is handling Elijah's case, supports the LaDukes' efforts to get custody of the boy and to adopt him but must wait for the appeal to be resolved, according to Toni Schwartz, a DHS spokeswoman.

Donna LaDuke said the lower court already has granted several of White's requests, even though he didn't want anything to do with Elijah until the murder. The court ordered that Elijah's last name be changed to a hyphenated one that included White and that the LaDukes arrange weekly phone visits between Elijah and his imprisoned father, something she and her husband are resisting, LaDuke said.

"This person has done everything to manipulate the system for his own personal entertainment," she said. "We've been standing on our heads to humor a convicted murderer."

Asked how the legal battle has affected her family, LaDuke replied: ''The court system has re-victimized the whole family. And it just seems to continue, continue, continue, continue. ... Common sense in this case disappeared long ago."

Repeated continuances in abuse cases also generate widespread criticism about the system. It is not uncommon for a case to be delayed multiple times because of the unavailability of police officers or other witnesses to testify or for other reasons, usually linked to the defendant's right to due process.

Forcing an abused woman to return to court repeatedly adds to the trauma inflicted by the process, especially if the woman recently has left the relationship or is the main income earner for her family and has to take off work to get to court, advocates say.

Cynthia Iannce Spencer, a Domestic Violence Action Center vice president, said she recently observed 10 criminal domestic-violence cases in court and all but one were continued.

"What does that say about the system? It's broken, it doesn't work, it's ineffective," Spencer said.

Another area of concern involves penal summons. Many summons, like in the Lacanienta case, go unserved because police can't locate the suspects.

Some suspects simply dodge police to avoid being served, allowing them to stave off a potential prosecution. Adding to the challenges, authorities have no central database that allows for an immediate check of whether someone has an outstanding summons.

The police do the best they can with their limited resources, but the summons system "definitely leaves a lot to be desired in terms of effective service of these things," said Trader, the deputy prosecutor.

Concerns about the fairness and adequacy of the system have become strong enough that the League of Women Voters recently decided to revive a court-monitoring project to more closely see what's happening with domestic-violence cases.

It last did that in the mid-1990s and found that convicted batterers generally served little jail time, regardless of the seriousness of their offenses.

Many say the key to improving the system is, like with other social problems, money. Better trained personnel, more police officers, more judges, more court space — all would contribute to making the criminal-justice process more efficient and fair, victim advocates and others say. They also say the community must place a greater priority on reducing domestic violence, including changing attitudes about relationships between men and women and power and control.

Maj. Carlton Nishimura, head of the Honolulu Police Department's criminal investigation division, said he understands why domestic-abuse victims are frustrated by the process.

"The majority of people don't like the system," he said. "Is it a really good system? No, it's not. ... But it's probably about the best it can be."

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