By the time Antonio punched his girlfriend in a gas station parking lot last month and someone called 911, a police computer search showed it was the fourth time he’d been arrested on charges of battering someone he was dating. But it appeared he’d never been convicted of the crime in court and never sentenced to any treatment or jail time.
It's a systemic problem featuring frequent police visits to the homes that domestic violence victims share with their abusers but refuse to leave. It ends in a justice system where charges filed can be pleaded down to lesser crimes, or more often, dismissed altogether.
The Santa Fe Police Department responded to 1,173 calls on offenses against family members and children in the last two years, and issued charges of 576 counts of misdemeanor or felony crimes.
A review of cases that made their way to the district attorney's office shows that, on average, about one in 25 misdemeanor charges for domestic violence result in conviction and its mandatory batterers-intervention counseling program. Of 54 felony charges that have since seen resolution in the court system, 30 of them were dismissed by the prosecutor or had the charges pleaded down. Another five were dismissed by the judge, likely for allowing too much time to elapse between when charges were filed and the case was brought to court.
Prosecutors say their challenges include working with witnesses who may change a story or downplay the event in the weeks after it happens and a short supply of evidence for crimes that largely occur in private homes, behind closed doors. Mental health and substance abuse also play a part.
"We deal with day-to-day life's problems with these individuals, and their lives are complicated, and sometimes the criminal justice system isn't always the best answer to resolve those problems," District Attorney Angela Pacheco tells SFR.
In New Mexico, assault or battery against a household member that causes "painful temporary disfigurement" counts as a misdemeanor, which carries a sentence of mandatory counseling and up to a year in prison. Only if the offense leads to "great bodily harm" or a deadly weapon was used, or death could result, does it count as a felony, punishable by up to three years behind bars.
That is, unless the person has three prior convictions for misdemeanor-level domestic violence, in which case even just one more case of temporary disfigurement can trigger felony-level penalties. But with charges often dismissed or reduced, the district attorney's office admits that system may not be working as intended.
The New Mexico Intimate Partner Violence Death Review Team identifies habitually plea-bargaining charges down as one of the gaps in the system that allow women to continue to live with and die from domestic violence. It is at the heart of a third of homicides with female victims in the state—which matches the nationwide numbers that a third to a half of female homicide victims have also been victims of domestic violence. While men are certainly included as victims of domestic violence, nearly 90 percent of those affected in New Mexico are female (so forgive the occasional interchangeable use of "women" as an encompassing term for all victims).
With the justice system failing to end these situations effectively, advocates are working on launching another workaround. This one focuses on explaining the high risks to survivors and connecting them immediately—while tempers are still high and injuries still fresh—to services that might finally help them break the cycle.
"We may save a life," says Sheila Lewis, domestic violence coordinator for the city of Santa Fe, who's leading the implementation of a lethality assessment program designed to identify people who are the most likely victims of homicide among the hundreds of domestic violence calls that come in each year.
The problem of pleading these cases down to lesser charges or seeing the case fall apart as victims back out isn't just a local issue, says Santa Fe Police Department Lieutenant James Lamb: "That's systemic statewide, and as far as the cause on that, your guess is as good as mine. It could be because of victim cooperation, it could be because of a system error, and that's what we're trying to correct with this program."
There is never a good reason it starts. The teenagers who traded punches after an argument over how suggestive her fast food restaurant uniform was and whether he was checking someone else out. The couple that spent a day picking piñón, and when he picked more but she ate more, it came to blows. Domestic violence calls come from every neighborhood, every kind of person, from million-dollar homes and from trailer parks.
It's the one misdemeanor crime that an officer doesn't have to witness to make an arrest. There only needs to be evidence to believe that assault or battery or even criminal damage to property of a household member—a window smashed or a door broken with an intention to intimidate, annoy or harass—occurred. All officers need is probable cause. Even if the aggressor leaves the scene but it's "reasonable" to believe that he could return and harm the victim, officers are allowed to pursue the suspect and take him into custody. But that's not always the way it goes.
"Half of domestics don't end in charges. People will call, and they have intentions for what they want done—Jane calls, says she wants Jim out. She doesn't want him to go to jail, but wants him outta here," says Corporal Edward Webb, with the Santa Fe County Sheriff's Office. "So one person goes to jail and another is extremely upset because the police didn't do what she or he wanted us to do."
If victims are willing to leave, sheriff's office staff will drive them across the county to a shelter; they will even wait with them while they collect their belongings. But usually, people aren't ready to make that choice.
"We work with Esperanza [Shelter for Battered Families]…but a lot of people or families refuse any kind of help from them," Webb says. "It's very rare that a person says, 'Yeah, I would like some help and can you please take me to the shelter.'"
Perhaps this new program, with its focus on making clear what the research has shown—that people in this situation are likely to die—will change that, he says. But he's not convinced.
"We want to help, we want to make the situation better, but we cannot make a person want to make their situation better," Webb says.
In an hour or two on scene, he says, officers essentially try to undo something that took years to occur.
"The victims are in crisis right then, and a lot of people in crisis want the familiar," Webb says.
No matter how tough their family may be, family is what they want in those moments.
"Even the ones who do want [to leave], that may change over the weeks and months to come," Webb says.
And weeks and months are exactly what it takes to bring these cases from those heated exchanges that led to 911 calls to the court system, where aggressors can be forced to commit to treatment, fined or sentenced to jail.
Pull up the records on the New Mexico Courts website, type in the codes to cue up violent crime arrests, and the whole system shows where it unravels.
A complaint filed on Jan. 6 is followed by a demand for a speedy jury trial Feb. 12, then one motion for continuance after another is filed until the case is dismissed in August.
A criminal complaint filed in March doesn't see a hearing until May—months have passed before anyone even got to stand in front of a judge to talk about what happened.
As those weeks pass, "no contact" orders issued after domestic violence arrests are amended to just "no abusive contact"—the parties involved would like to start talking again, spending time together again. The case hasn't yet worked its way to judicial resolution, but the people involved are moving on with their lives, together. Driving with a revoked license gets a seven-day mandatory sentence, which is more than any of the state's laws on domestic violence stipulate. The only mandated sentence built into state law is treatment.
"I know the DA's office struggles mightily with this process," says Lewis.
By the time many of the people involved in cases, especially misdemeanors, arrive in the district attorney's office, they're not even angry anymore, says Sarah Becker, senior trial prosecutor and one of the domestic violence intake attorneys with the DA's office, and they "just want it to go away." Plus, the notion of addressing what may be intermittent violence may feel like something of a luxury in light of a life built of intertwined housing, finances and children.
"In some instances, it seems like the victims are calling police when they want the behavior to stop," Becker adds. "They don't necessarily want anything to happen. They want the incident to end, so once the police are involved, we are as well. But it's not necessarily a true DV in the sense of the word."
"They don't want necessarily the relationship to end, they want to abuse to end, and then once we get involved, it takes on a life of its own, and then that frightens them because they don't want anything to harm the relationship," Pacheco echoes.
Though a victim can't decide not to pursue domestic violence charges, without victims cooperating and testifying to affirm that yes, the statements made to 911 dispatchers were made by them, those statements can be disqualified as hearsay.
"We can push it on our side with the evidence we have and any statements that the subject might have had and anything else we can," Lamb says, "but it's going to boil down to the witnesses of the crime, which is usually the victim and the suspect. So if the victim doesn't want to participate, yeah, that becomes a very serious road block."
Lapel camera video can be admissible as evidence, if it's available. The sheriff's office uses the cameras, but SFPD only recently got a budget to equip most patrol officers with the cameras. But the district attorney's office reiterates that without victim cooperation, the whole case falls apart. Courts hold a different standard, Pacheco adds. Cops arrest on probable cause, but conviction requires proving guilt beyond a reasonable doubt.
"It's not like we don't want to prosecute domestic violence. You look at it and say, 'Well, why aren't you guys trying harder?'" Pacheco says. "We are trying hard. It's not that we want cases not to be prosecuted. But we can only prosecute what we have. If we don't have evidence, we don't have a case."
She's not downplaying the dangerousness of domestic violence, Pacheco says.
"It's kind of like a DWI. Whenever you plea a DWI or a domestic violence case, you always think, Oh my God, are they going to go out and kill someone? And that never leaves us," she says. "It's the nature of our work. Today's domestic violence could be tomorrow's homicide."
In the last two years, no homicides in the city have been directly linked to domestic violence, and the sheriff's office reports just one in the county in that same time period, but experts caution against using that statistic to paint any broad strokes about the community.
"One of the things about homicide is that it is a rare event, and so it doesn't occur evenly in geographical areas across time. So it may very well be the case that one county may not have any domestic violence homicides in two years, and then they may have four in one year," says Danielle Albright, coordinator of the Intimate Partner Violence Death Review Team. That team counts and analyzes all deaths in the state tied to domestic violence, looking specifically for system gaps and failures and making recommendations to the state on policy and procedural changes.
"We're not talking about hundreds of homicides, we're talking about maybe 25 cases in the whole state," Albright says. "There are some years in which there are none in Santa Fe. That's just the nature of rare events. But you can't assume because you have zero in Santa Fe that you don't have a domestic violence problem in Santa Fe."
The Death Review Team reports 17 homicides in New Mexico tied to domestic violence in 2011, the most recent year for which their analysis is available.
Maybe that number feels like it's not a big deal—until it's your daughter, your sister, your mother, your friend who's been killed. As a state, New Mexico has one of the highest female homicide victimization rates, ranking third in the nation, according to an analysis by the Violence Policy Center.
The lethality assessment program under development in Santa Fe would use a list of 11 questions to help officers determine the risk of a situation escalating from assault or battery to homicide. Questions range from the obvious—has this person ever used a weapon against you or threatened you with one or threatened to kill you or your children?—to more subversive questions about controlling or monitoring the victim's daily activities and whether the aggressor has a job.
Enough answers in the affirmative, or a "yes" to any one of three questions flagged as of most serious concern, and the officer hands the survivor a phone and a number to call to get help, which would likely ring at Esperanza Shelter, and stands by to assist in the process.
If a victim is reluctant to ask for help, police officers can mediate the conversation, dialing a shelter to see if that can get things moving. With more than half of domestic violence survivors living with the aggressor, often the first measure of help comes down to finding a safe place to stay that night. Not every domestic violence case starts that conversation, just those when police can legitimately say, "People in your situation have ended up dead."
"The thing that makes it really challenging is that the policy is very different from what they're trained to do," Lewis says. "This is a call made under pressure. About half of women asked if they want to call a shelter will say no."
Over the last year, Lewis has shepherded the launch of the local lethality assessment tool, training staff and getting buy-in from three successive police chiefs in eight months.
"We're looking at this program as a pilot project right now. We're going to give it approximately a year and see how viable it is," Lamb says of the assessment, which is set to begin next month.
Marsie Silvestro, executive director of Esperanza Shelter for Battered Families, brought the idea to New Mexico from the shelter where she worked in New Hampshire, which used a lethality assessment program statewide.
"It really is an amazing program in that it's not just about saving victims' lives, but it also saves the psychological lives of many police officers who go in time after time, and there's children who are probably the same age as their kids, and they know that probably this family is going to be murdered," Silvestro says. "The research shows when officers do this screening, either they get clear that it's not a lethal situation, or if it is, they know they've done more than say 'You gotta get out of here.'"
Los Alamos, Taos and Valencia County are also launching the lethality assessment, and Lewis says she'd like to see it expand to additional agencies, including the Santa Fe County Sheriff's Office and tribal law enforcement agencies.
Statewide, the need to address domestic violence is tremendous. One in four adult New Mexicans has been a victim of domestic violence in his or her lifetime, according to the Survey of Violence Victimization in New Mexico. In nearly 19,000 calls on domestic violence law enforcement responded to in 2013, almost half of them reported injured victims and the equivalent of a third had children present, according to the New Mexico Interpersonal Violence Data Central Repository.
Of all the interpersonal violence victims who died that year, 89 percent of them had a prior history of victimization through the same crime that took their lives. Thirty percent of perpetrators had at least one prior dropped prosecution, and some had several more than one.
Stopping deaths from domestic violence, and stopping domestic violence, begins long before police have ever been called. The legacy of domestic violence in New Mexico has become a self-perpetuating cycle, but because the root of the violence lies in power and control, there are a lot of other triggers—cultural attitudes of women as weaker and subservient, patriarchy built into religion, idolization of girls as sexy that can begin as young as printing that word on a baby's onesie, oppression of minorities and historic theft of land.
Count the Petals
1 in 4 adult New Mexicans has been a victim of domestic violence
17 homicides in New Mexico tied to domestic violence in 2011
30 percent of killers had at least one prior dropped prosecution, and some had several more than one
1,173 calls to Santa Fe police in the last two year for domestic violence incidents
576 led to arrests, with less than half of felony charges and about one in 25 misdemeanor charges resulting in conviction
Sources: Survey of Violence Victimization in New Mexico, New Mexico Interpersonal Violence Data Central Repository, City of Santa Fe, nmcourts.gov
And children who grew up in abusive homes may struggle to know how a healthy relationship functions.
"Many of the abusers we see have been victims of domestic abuse or witnessed it as children, so a lot of our work with them is to really begin to help them get in touch with that reality and heal that reality," Silvestro says.
She once saw a child in a shelter who, after spending the first week hiding under a bed, finally emerged to start playing with other children, and he told one of them, as she recounts, "I know my mommy loves me," and the other kid said, "Well, how do you know that?" He answered, "Because when my daddy used to choke her, he said, 'If you scream, I'll kill the kids.' You know what? She never screamed."
Incidentally, in the state of New Mexico, a child watching one adult hit another doesn't count as meriting a call to the Children, Youth and Families Department, which handles child abuse and neglect.
"Everybody says, 'Why doesn't she just leave?' Well, why do we ask that question? Why don't we ask the question, 'Why is he abusing her? Why is he cheating on her? Why is he killing the dog in front of the children?'" Silvestro says. "And as I say to a lot of people, you know, think about your own life if you've been through a divorce or a relationship breakup. In normal circumstances, is that easy? And if you've been a woman who's not worked because you weren't allowed to or … he had all the financial control or whatever, to take that leap is a very courageous one."