11.1 Identifying and Assessing Domestic Violence Offenses

11.1.1 Domestic Violence Crimes
The existence of an intimate relationship between the victim of a crime and its perpetrator does not diminish the seriousness of the crime. On the contrary, the close relationship between the victim and perpetrator of a domestic violence crime may enhance the perpetrator's access to the victim and the potential for re-victimization. Moreover, when the devastating effects on children are considered, domestic violence crimes pose a far greater potential for harm to society in the long term. Accordingly, it is important for purposes of sentencing that domestic violence crimes be treated no less seriously than similar crimes involving strangers. To reduce the risk of repeat offenses against the victim, a sentence should be imposed as soon as possible after conviction of a domestic violence crime. The most effective sentences motivate change by holding the offender accountable and by conveying the message that the community will not tolerate domestic abuse.

To disrupt the repetitive patterns of domestic abuse, courts increasingly are incorporating batterer intervention strategies into sentencing decisions (see below). Batterer intervention can be used to address any behavior that constitutes a domestic violence crime. Domestic violence crimes are not limited to the more familiar domestic assault and stalking offenses. Domestic abuse takes many forms, so that any crime can be a domestic violence crime if perpetrated within a pattern of controlling behavior directed against an intimate partner.

Moreover, domestic violence crimes are not limited to crimes directed against the person of the offender's intimate partner. Abusers may attempt to exercise control by using behavior directed against their partners' property, animals, family members, or associates. Crimes that can be associated with domestic violence are as follows:

• Crimes Against Household Members Act, §30-3-10 et seq.
  Assault against a household member; aggravated assault against a household member; assault against a household member with intent to commit a violent felony under §§30-3-12; 30-3-13; 30-3-14
  Battery against a household member; aggravated battery against a household member under §§30-3-15; 30-3-16.
• Harassment and Stalking, §30-3A-1 et seq.
• Use of Telephone to Terrify, Intimidate, Threaten, Harass, Annoy or Offend, §30-20-12.
• Kidnapping and False Imprisonment, §30-4-1 et seq.
• Sexual Offenses, §30-9-11 et seq.
• Injury to Pregnant Woman, §30-3-7.
• Child Abuse and Neglect, §32A-4-1 et seq.
  Also refer to municipal ordinances.
• Bribery or Intimidation of a Witness; Retaliation Against A Witness, §30-24-3.
• Interference with Communications, §30-12-1.
• Cruelty to Animals; Extreme Cruelty to Animals, §30-18-1.
• Criminal Damage to Property, §30-15-1.

11.1.2 Court of Record
Metropolitan Court is a court of record for criminal actions involving domestic violence. Rules 7-703, 7-705. This means that a complete transcript of all testimony and record of all evidence must be maintained by the metropolitan court in any criminal trial in such a case, and that any appeal to the district court is decided on the record made rather than as a new trial. A criminal action involving domestic violence means an assault or battery under any state law or municipal or county ordinance in which the alleged victim is a household member as defined in the Family Violence Protection Act, §40-13-1.

11.1.3 Lethality Assessment
Once a court has identified a crime as a domestic violence crime, it is critical to assess the lethality of the situation when determining an appropriate sentence. Victims of crimes have a legal right to "be reasonably protected from the accused throughout the criminal justice process," §31-26-4 C. In cases where the court determines that there is a high risk for continuing or lethal violence after any jail term is served, batterer intervention programs or services alone will not be sufficient to protect victims. In these cases, other measures are necessary to limit the offender’s access to the victim after the defendant completes the jail term imposed by the court. Such measures may include longer jail time for the offender, community custody programs, and/or "no contact" provisions in orders for probation.

Lethality Factors Checklist
There are a number of factors the court may consider in determining its imposition of sentence. The more of these factors the court finds to be present, the more the court should be certain to address victim safety if the defendant is not sentenced to jail or after release:

• Threats of homicide or suicide
• Fantasies of homicide or suicide
• Suicide attempts
• Depression
• Access to weapons
• The victim has left the batterer
• Pet abuse
• Centrality of battered woman to defendant
• Drug or alcohol consumption
• Increased violent episodes
• Escalation in severity of violence
• Threats to harm children
• Forced or threatened sex acts
• Current life stress
• Rage
• Hostage taking
• Strangulation acts
• Repeated calls for protection by the victim or others
• Symbolic days or events
• Criminal history
• Presence of new relationships
• Expression of blame directed toward victim for perceived injuries to self
• Defiance of court orders and judicial system
• Psychiatric impairment of the victim or abuser
• Abuser’s need to control contact with children
• Objectification of partner (calling her names, body parts, animals)
• Extreme jealousy
• Accusations toward victim of promiscuous behavior

11.2 Considerations for Incarceration Versus Probation

11.2.1 Sentencing Assessment
It is critical that the court impose a sentence with the victim's safety in mind. §31-26-4(C). Incarceration, fines, restitution, and probationary sentences are all tools courts can use to hold domestic violence perpetrators accountable for their behavior.

To adequately assess the offender's situation for purposes of sentencing, the National Council of Juvenile and Family Court Judges recommends that courts have information about the following subjects at the time of sentencing for a domestic violence crime. Herrell & Hofford, Family Violence: Improving Court Practice, 41 Juvenile and Family Court Journal 15-16 (1990).

• Facts of the case
• Offender's criminal history
• Offender's prior abusive behavior
• Offender's drug or alcohol use
• Offender's mental health
• Prior and pending court contacts with the offender and his or her family, particularly domestic relations and personal protection actions
• Children living in the home of the victim or offender
• The impact of the violence on the victim and the victim's desires as to the disposition.

Herrell & Hofford, Family Violence: Improving Court Practice, 41 Juvenile and Family Court Journal 15-16 (1990).

In determining the sentence in domestic violence cases, judges often need to consider not only punishment of the batterer but also batterer intervention (see below). New Mexico has not adopted statewide guidelines for batterer intervention. However, in 2003, New Mexico created the Domestic Violence Offender Treatment Fund. To receive this funding, the treatment program must meet certain standards. These standards are discussed below in §11.2.3.

Other states that have enacted guidelines, such as Michigan, have specifically designed their programs to hold domestic violence offenders accountable for their actions and to provide them with an opportunity to change their behavior. Because change is never a guaranteed outcome of participation in a batterer intervention program, care must be taken during the probationary period to reduce the risk of repeat offenses against the victim.

11.2.2 Victim Restitution
One of the options the court has to hold the convicted offender accountable is to order payment of restitution. A victim has a right to restitution under §31-26-4(H). In ordering restitution, courts require the defendant to compensate their victim or the victim’s estate for harm suffered as a result of the defendant’s conduct. Section 31-17-1(A) allows the court to order restitution for victims of domestic abuse:

It is the policy of this state that restitution be made by each violator of the Criminal Code to the victims of his criminal activities to the extent that the defendant is reasonably able to do so. This section shall be interpreted and administered to effectuate this policy.

This section defines victims to include “any person who has suffered actual damages as a result of the defendant’s criminal activities.” §31-17-1(A)(1). It defines actual damages in terms of damages the victim could recover in a civil action. §31-17-1(A)(2). But the definition prevents the court from ordering restitution for punitive damages or pain and suffering. Such damages may still be recoverable through separate civil litigation. Additionally, other persons may be entitled to restitution, including any persons or entities that have compensated the victim or provided the victim with services such as shelter, food, clothing, and transportation, since they have incurred actual damages.

This section requires restitution as a condition of probation or parole if the sentence is wholly or partially deferred or suspended under §31 20 6. Specifically, §31-17-1(B) directs the court to require as a condition of probation or parole:

[T]hat the defendant, in cooperation with the probation or parole officer assigned to the defendant, promptly prepare a plan of restitution, including a specific amount of restitution to each victim and a schedule of restitution payments.

This subsection goes on to provide for scheduling restitution payments or giving the defendant the opportunity to be heard on why no restitution should be ordered, either because of inability to pay or the lack of any actual damage.

The victim of domestic abuse has other rights under state law--besides safety and restitution -- that should be considered during sentencing. For cases filed before July 1, 2005, these rights include the right to:

• be treated with fairness and respect for the victim's dignity and privacy throughout the criminal justice process;
• timely disposition of the case;
• be reasonably protected from the accused throughout the criminal justice process;
• timely notification of court proceedings if the victim requests notification;
• attend all public court proceedings the accused has the right to attend;
• confer with the prosecution;
• make a statement to the court at sentencing and at any post sentencing hearings for the accused;
• restitution from the person convicted of the criminal offense that caused the victim's loss or injury;
• information about the conviction, sentencing, imprisonment, escape or release of the accused;
• have the prosecuting attorney notify the victim's employer, if requested by the victim, of the necessity of the victim's cooperation and testimony in a court proceeding that may necessitate the absence of the victim from work for good cause;
• promptly receive any property belonging to the victim that is being held for evidentiary purposes by a law enforcement agency or the prosecuting attorney, unless there are compelling evidentiary reasons for retention of the victim's property; and
• be informed by the court at a sentencing proceeding that the offender is eligible to earn meritorious deductions from the offender's sentence and the amount of meritorious deductions that may be earned by the offender.

§31-26-4.

In cases filed on or after July 1, 2005, domestic violence victims have all of the same rights listed above, but they are also entitled to:

• timely notification of all proceedings even if they fail to request such notification; and
• make a statement to the court regarding their rights under the Victims of Crime Act at any proceeding scheduled in the case, not just at sentencing and post-sentencing hearings.

H.B. 692, 47th Leg., Reg. Sess. (N.M. 2005).

Regarding the right to offer victim impact testimony in a capital case, see State v. Clark, 1999 NMSC 035, 128 N.M. 119.

11.2.3 Ordering Batterer Treatment in Probationary Sentences
One of the most important considerations for the court when imposing probationary sentences in domestic abuse cases is determining what types of batterer intervention services are appropriate. Section 31-20-6(B) authorizes the court to order the convicted defendant to undergo “available medical or psychiatric treatment and to enter and remain in a specified institution, when required for that purpose.” What kinds of problems should be addressed by the treatment services to be ordered as a condition of probation?

To be effective, batterer intervention services must focus on changing the violent behavior patterns of the defendant. Although they may also be needed, alcohol/drug, medical, or mental health treatment is not appropriately addressed through batterer intervention services. A batterer intervention service should refer persons who need assistance in these areas to other appropriate sources. Treatment programs for drug/alcohol, medical, or mental health problems should not be substituted for batterer intervention services, because such programs are not designed to address domestic violence. These ancillary issues should be addressed concurrently with or prior to the batterer’s use of violence within the household.

One area for services that should be addressed but is often overlooked when designing batterer services is animal cruelty. There is a strong link between animal cruelty and human violence. The court can order an adult convicted of animal cruelty to obtain psychological counseling. §30-18-1(F). Children adjudicated as having committed cruelty to animals must receive mandatory assessment and counseling. §30-18-1(G). (The AniCare Model of Treatment for Animal Abuse, which is designed to augment the skills of experienced clinicians, specifically addresses issues of animal abuse and works toward stopping the cycle of violence before it spreads to humans.)

If the court orders participation in a batterer intervention counseling program as a condition of probation, it is generally recommended the minimum period of probation be for two years, if that is within the jurisdiction of the court. If the sentence requires satisfactory completion of the batterer intervention counseling (rather than mere attendance), probation can be revoked for reasons other than non-attendance. Satisfactory completion would require such things as attendance, payment of fees, participation in group discussions, and compliance with rules. Probationary sentences of less than one year’s duration may not create sufficient opportunity to hold abusers accountable, particularly when they do not require the offender to report regularly to a probation officer. Judges who do not have the services of a probation officer may wish to recruit community volunteers to monitor the abuser’s progress. Information on recruiting and training community volunteers is available through the Judicial Education Center.

Standards
Some states, recognizing the importance of effective batterer intervention services, and the limited opportunity the court may have to mandate them, adopt standards to help ensure program effectiveness. A comprehensive listing of such standards may be found on the website of Michigan Comnet. Michigan itself has enacted batterer intervention standards which recognize that group intervention is preferred to individual sessions because the group setting provides an environment where batterers can see in others their own behaviors, and learn from those who have been working for a longer period of time at making personal changes. Michigan’s statewide standards set forth an acceptable minimum duration for group sessions of twenty-six weeks. However, because domestic violence is potentially lethal and tends to increase in frequency and severity over time, interventions of fifty-two weekly sessions or more are recommended as optimal in statewide standards, so long as the court has jurisdiction to order services of such length. See §30-20-5(A) and (B) for the limitations on periods of probation.

Michigan standards have also identified couples and family counseling as inappropriate primary intervention for batterers. Because these approaches require joint participation by the abuser and victim, they may put the victim into further danger, or communicate to the abuser that the victim shares some of the responsibility for the violence. A victim who participates in counseling may also feel compelled to reinforce the batterer's behavior out of fear of reprisals for speaking candidly.

Further, the Michigan standards have recognized that criminal acts are not a subject for negotiation or settlement between the victim and perpetrator, such as through mediation, because the victim does not have any responsibility for changing the perpetrator's criminal behavior. Accordingly, batterers should not be referred to alternative dispute resolution services in lieu of batterer intervention. Batterers exercise control in violent relationships, and alternative dispute resolution services afford them further opportunity to wield this dangerous control over the victim. Michigan standards further caution against approaches that tend to identify the batterer's pathology or external circumstances as the primary cause of battering. These approaches are disfavored because they may reinforce the batterer's denial of responsibility for violence if used inappropriately. Such disfavored approaches include:

• Psychoanalytic therapy that focuses on the perpetrator's past experiences as a primary cause of battering.
• Approaches that deal with battering as primarily a problem of stress management.
• Approaches that deal with battering as primarily a problem of poor communications skills.
• Anger management groups that focus on anger as the primary cause of battering.
• Approaches that substitute addiction counseling for batterer intervention.
• Techniques that identify poor impulse control as a primary cause of violence.

In 2003, New Mexico created the Domestic Violence Offender Treatment Fund. §§ 31-12-12 and 34-15-1 & -2. The Fund will help finance offender treatment programs that have the following components:

• An initial assessment to determine if a domestic violence offender will benefit from participation in the program;
• A written contract, which must be signed by the domestic violence offender, that sets forth:
  – Attendance and participation requirements;
  – Consequences for failure to attend or participate in the program; and
  – A confidentiality clause that prohibits disclosure of information revealed during treatment sessions;
• Strategies to hold domestic violence offenders accountable for their violent behavior;
• A requirement that group discussions are limited to members of the same gender;
  • An education component that:
  – Defines physical, emotional, sexual, economic and verbal abuse and techniques for stopping those forms of abuse; and
  – Examines gender roles, socialization, the nature of violence, the dynamics of power and control, and the effects of domestic violence on children;
• A requirement that the program provide monthly written reports to the presiding judge or the domestic violence offender’s probation or parole officer regarding:
  – Proof of the offender’s enrollment in the program;
  – Progress reports that address the offender’s attendance, fee payments, and compliance with other program requirements; and
  – Evaluations of the offender’s progress and recommendations as to whether to require the offender to continue participation in the program; and
• A requirement that the term of the program be at least 52 weeks.

Note: A directory of batterer intervention standards in other states can be found on the Batterer Intervention Services Coalition website.

Conditions of Order Deferring or Suspending Sentence
In imposing probationary sentences, courts have great discretion as to the conditions of probation. Section 31 20 6 requires certain mandatory conditions including observing the law and paying the statutory fees for supervised probation service. In addition, the court has broad discretion to include other conditions. Of particular interest in domestic violence cases is the court’s discretion to order defendant to provide support, undergo medical or psychiatric treatment, accept the supervision of the corrections department, and perform community service.

In cases involving misdemeanor domestic violence offenses, courts may order defendants to complete treatment programs offered through the criminal justice system. The Bernalillo County Metropolitan Court has developed the Early Intervention Program (EIP), in which a defendant charged with misdemeanor domestic violence assault or battery is given an opportunity to complete a period of treatment under supervision. As one of the prerequisites for entering EIP the defendant must take responsibility for the underlying charges as outlined in the criminal complaint.

11.3 General Considerations in Ordering Batterer Intervention
The purpose of requiring a batterer to participate in an intervention service, such as counseling, is to provide an opportunity for behavioral and attitudinal change, not to punish. To convey the message that domestic violence crimes are just as serious as other types of crimes, it may be necessary for the court to order punitive sanctions (such as jail time or fines) in addition to participation in batterer intervention services. Where a court orders batterer intervention as a condition of probation without accompanying punitive sanctions, it runs the risk of communicating to the offender that domestic abuse is not truly criminal. Another limitation of batterer intervention is that is serves no restorative purpose. Participation in a batterer intervention service should not be substituted for restitution to the victim or the community in the form of compensatory payments or community service.

Most professionals who work with batterers agree that abusers must be held accountable for their behavior. Researchers generally agree that domestic violence perpetrators are not suffering from a psychological or biological illness that prevents them from changing their behavior, except in rare cases involving psychosis or other mental illness. In most cases, researchers believe that domestic violence is a learned pattern of behavior, chosen by the abuser for the purpose of controlling an intimate partner. Since abusers choose to engage in abusive behavior, they can also choose to change. Based on these assumptions, many researchers assert that batterer intervention services should motivate abusers to change by holding them accountable for their behavior. In addition to accountability, safety is of primary concern in providing batterer intervention services to abusers. The danger abusers pose to their victims requires service providers to carefully consider the effects of their services on victims' safety.

Note: A directory of batterer intervention standards in other states can be found on the Batterer Intervention Services Coalition website, http://comnet.org/bisc/standards.html.

11.4 Monitoring Compliance with Conditions of Probation
To hold a domestic violence offender accountable and to promote victim safety, the offender must be adequately monitored. If the court orders that an offender participate in a batterer intervention service program, it is also important that the service provider make regular (e.g., monthly) reports to the court or probation officer about the offender’s compliance with this condition of probation. The court can promote safety in cases involving domestic violence if its probationary sentences require that the offender report frequently to his or her probation officer. Frequent reporting can also promote accountability and provide incentive for change by regularly informing the offender that his or her behavior is not acceptable. Judges who do not have the services of a probation officer may wish to recruit community volunteers to monitor the abuser’s progress. Information on recruiting and training community volunteers is available through the Judicial Education Center.

To reduce the risk of further crimes against the victim, a domestic violence offender should face clear, certain, consistent, and quick consequences for any violation of conditions of probation. Jail time is only one of many consequences the court can impose. In some cases, it may be appropriate and effective to impose alternative sanctions such as more stringent supervision conditions, community service, or community custody. The imposition of incremental sanctions for noncompliance may be appropriate for directing offenders away from ingrained, learned patterns of behavior. Herrell & Hofford, Family Violence: Improving Court Practice, 41 Juvenile and Family Court Journal 34 (1990).

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