Published: July, 2015| Rhonda Martinson, Scott Miller, Edited by Stephanie Avalon

Unchecked witness intimidation can deter domestic violence victims and witnesses from calling for help, accessing the justice system, and participating in court processes. To learn how and when intimidation occurred in their cases, a multi-disciplinary team in Duluth, MN, observed 911 call takers and dispatchers, court proceedings, court hallway activity, and offender groups; conducted victim focus groups; interviewed criminal justice practitioners; reviewed prosecution files; and reviewed historical reports compiled by the practitioners who focus on high risk cases.

Awareness of the Problem

Victim advocates and criminal justice practitioners in Duluth have been aware of the intimidation of domestic violence victims and witnesses since 1984, when “coercion,” “making her drop the charges,” and “using intimidation” were identified as common tactics used by abusers against their victims during the development of the Power and Control Wheel, Duluth’s Domestic Abuse Intervention Project’s (DAIP) conceptualization of the dynamics of battering.

Commitment to Periodic Problem Investigation

Duluth has a history of periodically conducting safety and accountability audits – using a process developed by Praxis International to identify and investigate systemic gaps that affect victim safety and offender accountability. Under an initiative led by AEquitas, in partnership with the Battered Women’s Justice Project, Duluth used the audit process once again to investigate this question: At what points in justice system intervention and case processing does witness intimidation arise in Duluth/St. Louis County, and how do we as a system provide witness safety in those instances? 

Four Gaps Identified

After debriefing the audit activities, Duluth team members identified four gaps in victim/witness safety and offender accountability:  

  1. Offenders intimidated witnesses at points in the justice system where their role as a witness was recognized or exposed.
  2. Information that would have increased witness safety or offender accountability was not shared between agencies, between practitioners, or between practitioners and  witnesses, thus providing offenders another window of opportunity to intimidate  witnesses.
  3. Offenders intimidated witnesses at points in the justice system where there were delays in processing cases.
  4. Offenders or their associates intimidated witnesses in courtrooms and adjacent spaces when there was no justice system staff presence to deter it, and where offenders and  witnesses were in close proximity to one another.

Addressing the Gaps

Duluth Police Department patrol officers have for many years asked specific risk questions of victims of intimate partner violence – including a question about intimidation-- that explore the pattern of abuse beyond the incident under investigation These questions provide the context of the violence the victim is experiencing and may even provide an opportunity to charge and/or investigate crimes not part of the immediate call to 911. 

As a result of the Duluth team’s investigation into witness intimidation, the existing question about intimidation was rewritten to encourage responding officers to ask follow-up questions when initial inquiry into intimidation was responded to affirmatively. Such follow-up gives victims an opportunity to talk about any acts of intimidation the offender has used to gain compliance. 

Collecting this information early in a case is important. First, advocates learn how the offender maintains leverage over the victim and can then develop a strategy from the outset of the case, hopefully while the offender is still in jail awaiting arraignment. Second, prosecution, probation, and the court get information that might influence pre-trial release conditions. For example, if the offender has told the victim that if she calls police, seeks an order for protection, or doesn’t “drop the charges” that he’ll take their children, documentation of this would support a request from a prosecutor or probation officer for a court order of supervised visitation as a condition of pre-trial release. Third, information about intimidation supports charging witness tampering from the outset of a case which may deter the offender from subsequent attempts. Prosecutors then have multiple charges to work with as they try to resolve the case. 

The best evidence is often gathered immediately at the scene. Collecting and acting on witness intimidation from the outset of the investigation benefits both the victim and the criminal justice system’s ability to hold offenders accountable for what was done. Sure and swift consequences also have an impact on recidivism.

Duluth Risk Questions

  1. Do you think he/she will seriously injure or kill you, your children, or someone else close to you? What makes you think so? What makes you think not? Does he/she have access to guns?  
  2. How frequently does he/she assault you? Describe the time you were the most frightened or injured by him/her.
  3. Does he/she initiate unwanted contact either electronically or in person? Describe the unwanted contact. How often?  
  4. How frequently does he/she intimidate or threaten you? Has he/she intimidated or threatened you regarding talking to police or seeking help from the court?
  5. Has he/she ever forced you to do things sexually you didn’t want to? 

Policy for Court Security on Preventing or Responding to Witness Intimidation

The most extensive policy created by this project was that of the St. Louis County Sheriff’s Office courthouse security staff. Focus groups with victims to hear about their experience at different points of case processing revealed that when victims are in the courthouse for either a protective order hearing or a hearing on a criminal matter, and the defendant stares at them, the staring intimidates them from speaking and gives them pause to reconsider whether to seek an order or participate in the prosecution of a criminal matter.

Case example: The father of a respondent in a protection order accompanied his son to the hearing and stared for a long period of time at the petitioner as she waited in a court hallway to be called into the courtroom. The petitioner approached a victim advocate for help, saying past experience had taught her the stare was indicator of some bad act to follow. 

DAIP’s Scott Miller explains that a victim who reports this kind of intimidation may learn multiple “looks” that the abuser gives to get her to stop or start doing something. Victims had to learn which look meant violence was imminent and which meant she had more time to comply. The defendant’s family or friends may also stare, letting her know that there will be consequences for her. Since 2010, DAIP’s training curriculum on coordinating a community response to domestic violence has included video vignettes on responding to an abuser’s attempt to intimidate a victim by staring at her during a court hearing.

Case example, continued: The advocate reported this to a court security officer, who asked the father to turn away and stop staring at her. The father moved, but turned around and continued his stare. The officer attempted to remove the father from the courthouse. When he resisted he was charged with obstructing, and the prosecutor added a charge of witness tampering after receiving documentation of what the defendant did and its impact on the victim. The defendant pled guilty to witness tampering - the first conviction in Duluth based on a stare as a means of intimidating a witness in the courthouse.

In this tactic of control, the courthouse becomes the scene of the same intimidation used in the home. The St. Louis County Sheriff’s Office decided to address this with a detailed policy for court security officers

Asking Victims for Suggestions and Recommendations

While victims are often intimidated, victim participants in the focus groups said they had never been informed of its implications in criminal cases. No one - officers, advocates, prosecutors, judges, probation officers, attorneys – had ever mentioned it, explained it, or gave instructions on what to do about it. One victim commented that she always received warnings about the legal ramifications for victims and witnesses who did not obey subpoenas, but that she never once received information about how victims may be pressured to disobey subpoenas, and that such pressure may be a crime. 

Additionally, victims and advocates thought that if victims were informed about how common it was for abusers to make manipulative calls to victims or witnesses from jail, victims would be better prepared and less likely to be susceptible to this coercion. They suggested that witness intimidation could be addressed in victim support group sessions, especially when new participants join the group. Information on witness intimidation could be communicated via the group facilitator, an invited speaker such as a law enforcement investigator, or a printed handout.

Multiple Agencies Work in Concert

To ask one agency to be responsible for dealing with the problem of witness intimidation would be ineffective and unsustainable. However, when multiple agencies work in concert to address the crime of witness intimidation, a community is much more likely to achieve the goal of victim/witness safety and offender accountability. 

For more information please contact Scott Miller at smiller@theduluthmodel.org.