By Ashley Holman
Assistant Criminal District Attorney in Kaufman County
As the chief prosecutor in Kaufman County’s Special Victims Division, I often see offense reports where victims of domestic violence and their offenders told responding officers that children were in the home during the assault: “My kids were in the other room.” “They’re here, but they were asleep when we were fighting.” “They may have heard, but they didn’t see anything.” A victim of domestic violence may truly believe these words. She may believe she is shielding her children from a trauma. She may be concerned about additional information the children may share. She may also be seeking to downplay the severity of an assault. Whatever the motivation, we will never know crucial details of an abusive situation if we don’t take the time to interview all parties involved, even the smallest ones.
Flash forward to the jury trial on an assault family violence case, and defense counsel is grilling the patrol officer on cross-examination, asking why no one spoke to the children who were on scene. Often the defense attorney can wonder aloud in closing argument, “How bad could this supposed incident have really been if none of the children heard or observed any part of this assault?” Or worse, those children have now been pressured to testify favorably for an abusive parent.
Prosecutors, our investigators, and victim assistance coordinators (VACs) are all too aware of the dynamics at play in an abusive home. However, by the time we get our hands on an assault family violence case, access to the best evidence about those dynamics may be long gone.
When officers respond to a call of assault family violence, their goal is to assess the situation quickly while keeping the parties calm, ensuring that everyone walks away safely. Once the case reaches our office, our goal as prosecutors is to achieve a just and efficient case disposition. However, in our collective efforts to be efficient, we should not lose sight of effectiveness in investigating offenses of assault family violence where children are in the home.
This article seeks to provide those of us who work family violence cases with tools to enhance the quality of our cases for prosecution, while also ensuring that we comply with our legal duty to protect children who witness domestic violence. In Kaufman County, we have prioritized a multi-disciplinary approach to victim cases. This means that we share information and training resources with our partner agencies (law enforcement, medical personnel, the Department of Family and Protective Services [DFPS], and members of the Special Victims Division in the DA’s Office) on a regular basis so that we all improve together. My hope is that you can share these tools with local police agencies so that we can respond to and prosecute cases of domestic violence.
Responding at the scene
Great family violence investigations start with the responding officer. Responding officers to a domestic violence call should always collect the full names, dates of birth, and school information of any children who were present where violence occurred. “Present” does not just mean being in the room when the assault happened, but rather being in any part of the location where the child may have been exposed to domestic violence.
A key reason is that officers have a mandatory reporting responsibility.[1] A child’s exposure to domestic violence requires a report to DFPS, so responding officers must provide this information to the Department upon leaving the scene.[2] While DFPS may investigate a report of a child being exposed to domestic violence, it is not an automatic finding that the parent-victim of domestic violence is neglectful or abusive—DFPS will not hold the victim accountable for abuse and neglect just for being victimized in a domestic violence event.[3] However, DFPS policies state, “Domestic violence that physically harms a child or puts the child at substantial risk of immediate harm would constitute an allegation of child abuse or neglect.”[4]
Unfortunately, involvement from Child Protective Services (CPS, a division of DFPS) is often a barrier to disclosures of abuse. Victims of domestic violence may have prior negative experience with CPS, and they may fear they will not be believed. They may be concerned that their statements will provide ammunition to a noncustodial parent for removal of their children based on this new abusive relationship. They may have been threatened by a perpetrator that information will be provided to CPS should they ever try to leave, or worse, the children could be placed with a relative from the offender’s family. Whatever the case may be, law enforcement, prosecutors, and victim advocates should be cognizant of how these concerns may affect an investigation, while still working to ensure that justice is done and resources are made available.
If you do not see a CPS reference number noted in the offense report once you receive the case, please follow up with the police agency to make sure a report has been made. If not, you should make your own report as soon as possible to fulfill our own duty as mandatory reporters. This is particularly important when we have information that a victim has returned to the abusive home where a protective order or bond conditions are in place to prohibit such contact.
The dynamic of serving a victim of domestic violence, while also bringing DFPS into her life, can feel like a difficult position for prosecutors, investigators, and VACs. However, by reporting, we are not only following our legal duty, but also we may protect a child from harm. How many victims of domestic violence immediately return to an abuser? An adult victim may decide to go back into the cycle of abuse for herself, but in doing so, she is placing her child back in harm’s way. Our mandatory referral will allow CPS to come alongside the family with the clear message that a victim must stay the course for her own safety as well as to protect her child. Not to mention that victims often become uncooperative with prosecution simply due to a lack of access to resources once leaving an offender. CPS can work with a victim to build a safety network around her, locate childcare, make referrals to community resources, and find resources to pay for essential needs. Responding officers and prosecutors who ensure that information is provided timely to CPS can play a critical role in keeping a victim cooperative until the case reaches disposition.
Help for investigations
Another critical reason responding officers should gather information on children present in the home is so they can provide this information to their criminal investigations division and facilitate timely forensic interviews. It goes without saying: If a child has directly witnessed a domestic violence incident, a forensic interview should be set up immediately. But I also encourage agencies to schedule forensic interviews for any children who were merely present in the home at the time of offense. If a forensic interview is not available to your agency, an officer with a body-worn camera should check in with that child while on scene. In a non-leading manner, using age-appropriate questions, and outside the presence of either adult party, the officer should ask the child whether or not s/he has anything to tell the officer about anything s/he saw or heard.
Some of the best evidence of family violence dynamics comes from the children who spend every day in the home with the victim and offender. The only way we can ensure that we gather such information is by an age-appropriate interview conducted away from the victim and offender as soon as practicable after the offense. This is one of the many reasons why Children’s Advocacy Centers (CAC) exist. CACs are designed to interview any witness or victim to a crime age 18 and younger. While Kaufman County is still considered a smaller jurisdiction, we are fortunate to have our own Children’s Advocacy Center and multi-disciplinary team (MDT). Cases in which a child has witnessed domestic violence and are subsequently forensically interviewed are staffed as a part of our MDT.
What if the children did actually hear the assault but were too scared to leave their rooms? What if they witnessed the whole thing and were coached or sent back to their rooms prior to the officers’ arrival? What if they did not see the assault itself but saw the aftermath or the concealment of a weapon? We will never know those answers—or many other pertinent details about the family’s dynamics—if we never ask. If a child is awake and present on scene, I encourage patrol officers to at least capture that child on body cam. If the child is talking, just listen and be a calm presence for him or her. This should not serve as a replacement for a forensic interview, but rather a supplement of evidence for the child’s demeanor that evening. Whenever possible, forensic interviews are a best practice when working with child witnesses and victims.
Here is a real life example from one of our cases in Kaufman County: In the wake of a traumatizing ordeal, a simple “Are you doing OK, buddy?” from the responding officer led to a three-minute narrative by a pajama-clad 5-year old about how “angry daddy was to mommy in the bathroom” and how “daddy hitting her made mommy have to drop me and I hit my head.” This is all valuable information for prosecutors and powerful potential evidence for a jury.
Prior assaults
In addition to collecting what knowledge a child may have of the crime, we may also gather valuable information about prior assaults or abuse within the home. Article 38.371 of the Texas Code of Criminal Procedure allows both the prosecution and defense to put forth evidence of the dynamics of the relationship in a prosecution of family violence. These cases are one of the rare instances where we may present to a jury prior bad acts in a relationship, patterns of abuse, and a full glimpse of what is going on behind the scenes. Children observe much more than we ever give them credit for. A trained forensic interviewer can help an investigator understand what dynamics exist in the home where the crime occurred and assist law enforcement and DFPS in responding appropriately to these crimes.
In a recent Kaufman County prosecution, two young children and a teenager who resided in the home at the time of the assault were interviewed at our local Children’s Advocacy Center. Their father had cut their mother with a kitchen knife. When police arrived, the father claimed that the couple suffered from a deteriorating marriage and that his wife had given herself the superficial wounds in an attempt to get a U-Visa and secure her residency in the United States. During the forensic interviews of the children, they each described what lead up to the assault that day. They told interviewers how angry their father was that their mother would not drive to the store to buy him more alcohol. They described how he often got angry when he drank, which would fuel even more fighting. The two younger children explained how terrifying it was when he came into their mother’s bedroom and began jabbing toward her with a knife, eventually cutting her across her arm. Once she was assaulted, the children explained that their mother came out of the bedroom and went into the kitchen dripping blood.
The couple’s teenage son was not in his mother’s room at the time of the assault, but he told the interviewer how the screaming initially failed to bring him out of his own bedroom because such arguments were so common. He eventually did decide to come out—just in time to see his father set down a knife and grab a mop to start wiping up blood. The detail in his account is both compelling as evidence and, for a juror listening, heartbreaking—that such violence is so frequent in this youngster’s home that it took a stabbing to bring him out of his room.
Collecting this information at the onset of the case, rather than much later, maintained the integrity of the children’s testimony, ultimately ensuring that we could put forth the strongest case for prosecution.
Services for child witnesses
I have touched on DFPS’s ability to connect adult victims to services, but there are also services available to children who witness family violence in the home. By bringing these child witnesses to the CAC, we may offer them counseling services or play therapy at the advocacy center or with other community partners. Growing up in a home where there is physical abuse can be traumatizing to children. According to the Centers for Disease Control and Prevention, in homes where violence between partners occurs, there is a 45- to 60-percent chance of co-occurring child abuse, a rate 15 times higher than average.[5] Even children who are not physically harmed by a perpetrator are affected by witnessing such abuse. Compared with other kids, these kids have higher rates of insomnia; bed-wetting; verbal, motor, and cognitive issues; learning difficulties; self-harm; aggressive and antisocial behaviors; depression and anxiety; and a higher likelihood of becoming a victim or perpetrator of violence.[6]
By following the steps outlined in this article, we have an opportunity to hear from, and respond to, all the victims domestic violence in the home touches. When we take the time to work efficiently and effectively with child witnesses of domestic violence, we may be able to ensure that those victims and children receive the support they need to stop the cycle of violence and receive justice.
[1] The phone number to report abuse or neglect to DFPS is 800/252-5400.
[2] www.dfps.texas.gov/Investigations/domestic _violence.asp.
[3] Id.
[4] Id.
[5] www.psychologytoday.com/us/blog/progress-notes/201902/alarming-effects-childrens-exposure-domestic-violence
[6] Brown, B., and Bzostek, S. (2003, August). Violence in the lives of children. Crosscurrents, 1. Bethesda, MD: Child Trends. Retrieved from https://cms.childtrends.org/wp-content/uploads/2003/01/2003-15ViolenceChildren.pdf.