Should Strict Liability for Knowledge of Possession be Enough for a Conviction?

On March 15^th, 2013, the Massachusetts Supreme Court ruled in Commonwealth v. Romero[1]that the driver of a vehicle, who knew a passenger had possession of a firearm, could not be held criminally liable based on the driver’s knowledge alone.  In Romero, the defendant was charged with possession of a firearm and a jury found him guilty.  However, the defendant did not have physical possession of the firearm.  The firearm was physically possessed by a passenger in the defendant’s vehicle.

The defendant knew the passenger had a firearm prior to the passenger entering the vehicle and the passenger handled the firearm openly while sitting in the front-passenger seat next to the defendant driver.  The jury, the Massachusetts Appeals Court, and the Massachusetts Supreme Court all agreed that based on these facts it is reasonable to assume that the defendant was aware of the weapon’s presence in his car.  Under Massachusetts law the prosecution is required to argue constructive possession because the defendant did not physically possess the firearm.  The prosecution must prove both knowledge of the weapon’s presence and the ability to exercise control over the weapon.[2]  

The lower courts determined that the defendant’s ownership and control of the vehicle were significant factors when considering the defendant’s ability to exercise control over the firearm.  The Massachusetts Appeals Court decided that the defendant’s ownership and operation alone were enough to constitute control because the defendant “questionably” could exercise control over contraband in the vehicle.  However, the Massachusetts Appeals Court and the Supreme Court disagreed about whether those factors alone were enough to constitute control over the firearm.  The Massachusetts Supreme Court ultimately disagreed on that issue and used it as the basis to overturn the lower court’s decision.  The Court considered the defendant’s ownership and operation to be only enough to constitute proximity to the weapon and not enough to exercise control.

While the Massachusetts Supreme Court does have legitimate reasons for overturning this conviction, does this ruling encourage law-bidding behavior or does it just give knowledgeable criminals an opportunity to evade prosecution?  Consider, if you will, the following scenario:  driver Roberts and passenger Kennedy are out and about on a Saturday night looking to commit an armed robbery.  Driver Roberts has a prior conviction that prevents him from lawfully possessing a firearm.  Passenger Kennedy has thus far in his life evaded arrest and has a valid conceal-carry permit.  Each is in physical possession of a concealable firearm registered to passenger Kennedy when a police officer pulls the vehicle over. Prior to stopping, Driver Roberts hands the firearm in his possession to passenger Kennedy.  The police officer approaches the vehicle and finding no laws violated releases driver Roberts with just a ticket.  Driver Roberts has, under the Massachusetts’s Supreme Court’s interpretation of constructive possession, evaded prosecution. 

It is sound policy to enforce an understanding of constructive possession that when a vehicle or residence owner is aware of the presence of contraband, that person is in constructive possession of the contraband.  Such a policy is not only a reasonable interpretation of an owner’s ability to exercise control, but further encourages law-abiding behavior by making a vehicle or residence’s owner  responsible for the content of his or her space.  This interpretation thus makes the owner the initial “gateholder” for his or her space and encourages the owner to quickly respond to the presence of contraband or face criminal charges.  Such a policy makes legal status clear and holds individuals responsible for tolerating criminal activity in their private spaces.

Ryan Hatley

Blogger, Criminal Law Brief

[1] No. SJC-11149 (Mass. 2013); see http://www2.bloomberglaw.com/desktop/public/document/Commonwealth_v_Romero_No_SJC11149_2013_BL_70571_Mass_Mar_15_2013_

[2] See Commonwealth v. Brzezinski, 405 Mass. 401 (1989); see http://masscases.com/cases/sjc/405/405mass401.html

Elmo Puppeteer Charged with Fourth Underage Sex Accusation

On March 19, 2013, Kevin Clash, most famously known for his role as Elmo’s Puppeteer, has been charged with his fourth underage sex accusation.  Since the allegations arose, Clash has resigned from his role as Elmo’s Puppeteer.[1]Clash is accused by Sheldon Stephens, 24, of “baiting him into an X-rated affair fueled by crystal meth when he was just 16.”[2]Stephens claims that Clash sent chauffeurs to deliver Stephens from his home in Harrisburg, Pennsylvania to New York for crystal meth sex parties.  Stephens’ lawsuit accuses Clash of sexual battery for child sexual abuse, travel with intent to engage in illicit sexual conduct, and coercion and enticement to sexual activity.[3]  The suit states, “While in the apartment, Clash smoked crystal meth while engaging in sexual activity with Sheldon.  Clash also gave Sheldon ‘poppers’ as a sexual aide. While Clash had sexual contact with Sheldon, the chauffer watched and masturbated.”[4]

Clash’s lawyer, Michael Berger argues that the claims are without merit and barred by the statute of limitations.[5]Additionally, Berger points out that the case was brought by the same lawyer, Jeff Herman, who brought the other three cases against Clash that were all dismissed.[6]Berger also points out that Sheldon Stephens admitted in writing that he had an adult, consensual relationship with Clash.

The complaint, alleging $75,000 in damages, claims that Stephens met Clash at a 2004 social networking event for models and actors.  According to the complaint, Clash told Stephens that he would help Stephens with his acting career if Stephens sent him modeling pictures, which he would pass around to people in the industry.[7]The two kept in touch and began a sexual affair that lasted a few years.  Stephens claims that he was not aware that he suffered psychological and emotional damage until 2011.  Stephens first went public with these allegations and his relationship with Clash last November, but recanted after being promised a $125,000 settlement.[8]The settlement fell apart and the case is going to court.[9]

If the allegations are true, Clash could be sentenced to life in prison.  With three other cases behind him, Stephen’s case only seems to chip away at Clash’s credibility and paint Clash as more of a child predator monster.  Stephen’s testimony only worsens Clash’s image by including “crystal meth sex parties.” Clash’s agreement to settle last year seems to point out that there has been something suspicious going on the entire time.  It may be in Clash’s best interest to settle quickly.

However, it is significant to note that Stephens is bringing the case almost ten years later. Stephens had enough time to bring the case before the statute of limitations expired; and Stephens also had an adult relationship with Clash.  The lawsuit could be viewed as retaliation from Stephens after the relationship fell apart.  On the other hand, Stephens was still a minor when the affair began.  As a minor, Stephens had no real ability to consent.  Also, Clash took advantage of Stephens by claiming that Clash would help Stephens become a model.  Stephens’ story echoes many similar stories of children in the modeling industry, where sexual abuse is rampant.  

As a child, Stephens was probably easily influenced by Clash’s star power and would do anything to please him because of a desire to become a big model one day.  If the allegations are true, Clash had full knowledge of this and took advantage of Stephens’ precarious situation.  As the adult, Clash had the full ability to prevent sexual and drug abuse from happening and truly helping the boy become a model.  However instead, Clash, according to allegations made by Stephens’, chose to prey on the boy’s vulnerability, which is why  Elmo’s puppeteer will likely be condemned to a long prison sentence if convicted. 

Amelia Wong

Blogger, Criminal Law Brief

[1] http://www.nydailynews.com/news/national/elmo-actor-leaves-sesame-street-article-1.1205900

[2] http://www.nydailynews.com/news/national/elmo-accuser-files-lawsuit-article-1.1292880

[3]Id.

[4]Id.

[5]Id.

[6] Id.

[7]Id.

[8]Id.

[9]Id.

Are Mandatory Minimums Really a Thing of the Past?

Snitch[1], a movie dealing with mandatory minimum sentencing was released on the big screen last month.  The movie was based on true events surrounding the lives of James Settembrino[2] and his son Joey Settembrino[3].  The movie depicts a situation where eighteen year old Jason Matthew was an unwilling participant in a drug operation.  Jason’s friend set him up by sending him a large amount of illegal drugs through the mail.  When Jason retrieved the package he was arrested and charged with the distribution of narcotics.  Jason was facing up to thirty years in prison.  John Matthews, Jason’s father, agreed to become a snitch and set up drug dealers for the government in order to reduce his son’s sentence.  While the movie arguably involved bad acting and a poor portrayal of our criminal justice system, it did create a platform for the discussion of mandatory minimum sentencing.

The Anti-Drug Abuse Act of 1986 implemented mandatory minimum sentencing for certain drug offenses.  The mandatory minimum sentencing guidelines removed the judge’s discretion in sentencing.  Thereby, removing the judge’s ability to use individualized sentencing based on mitigating factors.  Mitigating factors are facts or circumstances that lessen the culpability of a defendant such as the absence of a prior criminal record, minimal involvement in the crime, the defendant’s age, and past abuse or neglect.   For example, in the movie Snitch, the teen was charged with a certain weight of drugs which carried a mandatory minimum sentence of ten years.  Therefore, regardless of the teen’s level of involvement in the drug operation, the judge would have to sentence him to a minimum of ten years in prison.

Judges were eventually given their sentencing discretion back when the Supreme Court of the United States rendered the federal sentencing guidelines advisory in its 2005 decision for United States v. Booker.[4]  However, judges rarely utilize this power.  Instead, judges continue to use the federal sentencing guidelines.[5]

There are two reasons why Booker has not made mandatory minimum sentences a thing of the past: first, judges are still required to calculate sentences based on the guidelines and second, there is an appellate presumption that the sentence calculated based on the guidelines is reasonable.  Only after the judge calculates the sentence based on the guidelines can the judge determine whether to depart from the guidelines in light of the circumstances and facts presented in the case.  In Rita v. United States[6], the Supreme Court of the United States held a federal appellate court can apply a presumption of reasonableness to sentences that are within the sentencing guideline range and the Court admitted that this presumption may encourage judges to sentence within the guidelines.  After calculating the sentence based on the guidelines and with the knowledge of the appellate presumption of reasonableness, judges are more inclined to just sentence the defendant within the guidelines that they just calculated.

The only available protection to defendants like Jason is the Safety Valve.  The Safety Valve is currently the only sure way for a person under similar circumstances to avoid a harsh sentence. The safety valve provision allows a judge to ignore statutory minimum sentences if a defendant meets five requirements.  The defendant must (1) not have more than one criminal history point; (2) not have used violence or possessed a firearm during commission of the offense; (3) not have killed or seriously injured another person; (4) not have been a leader or manager in the offense or be involved in a continuing criminal enterprise; and (5) have truthfully provided the government with all information.  The fifth element is generally the only contested element. 

Meeting the fifth requirement under the Safety Valve[7] can be extremely problematic for people in Jason’s situation because they generally lack information about the drug operation.  The obligation of truthful and complete disclosure under the safety valve provision includes all information, even information that is not relevant or useful.  This provides no guidelines regarding the level of information a person must provide; thereby, making it easy to unfairly deny eligibility for the safety valve for failing to provide irrelevant and unrelated information.  Additionally, under the safety valve, the defendant has an obligation to volunteer information even if the government does not question them about that specific information.  Moreover, fear does not excuse a defendant’s obligation of full disclosure under the safety valve provision.  There are no exceptions for defendants that refuse to give up information about co-conspirators out of fear for their safety.

Even though the federal sentencing guidelines are now considered advisory, harsh sentencing for first time non-violent drug offenders remains a problem and sadly there are numerous teens, young adults, and women that are currently serving harsh prison sentences due to situations similar to the one depicted in the movie.  Unfortunately, most of these people do not have a father willing to work with the government as a snitch to reduce their sentences.  Instead, after exhausting all possible post-conviction relief efforts with the courts their only hope is clemency. 

Tonya Davis

Blogger, Criminal Law Brief

[1] http://www.snitch-movie.com/

[2] http://www.pbs.org/wgbh/pages/frontline/shows/snitch/cases/joeydad.html

[3] http://www.pbs.org/wgbh/pages/frontline/shows/snitch/cases/joey.html

[4] http://www.law.cornell.edu/supct/html/04-104.ZS.html

[5] http://www.law.com/jsp/article.jsp?id=1202449470125&Federal_Judges_Still_Finding_Their_Way_in_PostBooker_Sentencing_Landscape&slreturn=20130218100332

[6] http://www.law.cornell.edu/supct/html/06-5754.ZS.html

[7]http://www.marylandcriminalattorneyblog.com/2008/10/beware_the_federal_safety_valve.html

50 Isn’t the Only Number to Watch: How the Federal Sequester Will Affect Gideon’s Right to Counsel

Fifty years ago today, Gideon v. Wainwright announced a right to counsel as a reflection of a consensus of the States that regardless of economic status representation was a fundamental right under the Sixth Amendment.  Now, with Congress on the brink of solidifying major budget cuts across all federal agencies, the very right that Gideon created is in greater jeopardy than ever before.

In 1963, Gideon settled the fundamental rights debate when the Court denounced the Betts interpretation of the Sixth Amendment right to counsel stating, “Twenty-two states . . . argue that Betts was ‘an anachronism when handed down,’ and that it should be overruled.  We agree.”  Today, the focus of the debate surrounding Gideon has shifted away from the Sixth Amendment’s fundamental rights implications.  Instead, scholars and activists alike lament the inadequacies of the criminal justice system in implementing the Supreme Court’s mandate.[1]

It seems clear that as a society we are only ready to support this fundamental right in theory rather than in practice.  The majority of the implementation difficulties stem from the states’ refusal to adequately fund public defender offices.  It is no secret that public defenders regularly face seemingly insurmountable caseloads, but to expect them to do so without proper funding should itself be considered violative of the Sixth Amendment fundamental right.  Though the past fifty years can be characterized as a weak attempt at best—and perhaps more accurately an outright failure, perpetuating discrimination against the poor—it may be safe to say that our biggest obstacle to constitutional representation has just recently arrived in the new federal sequester. 

Through technicality, Congress retains authority to retroactively pass a budget that would postpone budget cuts that threaten to crush an already anemic judiciary.  However, should the sequester take effect, “money for federal defender organizations would be reduced by $53 million.”  According to the report, “defender salaries would be reduced by four percent, non-salary funds by twenty-five percent and training funds by fifty percent.”

Salary reductions will almost certainly be handled by furloughs, a prospect with which employees across many federal agencies may soon become familiar.  The cost of defender furloughs, however, will have a deeper impact than simply bringing home a smaller paycheck.  These furloughs will have real costs for clients and attorneys alike.  In the courtroom, furloughs will present scheduling difficulties, and in some cases may cause defendants to remain in detention longer than necessary. 

One suggested solution may be to simply have a colleague stand in for a defender who happens to be on furlough on a day she is assigned to be in court.  While this may provide a temporary fix, it should not be considered acceptable under Gideon standards.  An attorney who is merely acting as a substitute in court will not be familiar with the intricate details of the case and therefore will be unable to articulate the best arguments on behalf of the client.  Furthermore, each time a defendant is made to attend court with a new attorney, it will undermine the trust-based relationship that takes time and hard work to form.  This will create a barrier between the client and attorney in future proceedings, again, harming the quality of representation.  Finally, it should not be overlooked that habitually taking on colleagues’ cases would lead to an increase in already excessive defender workloads.

Non-salaried cuts to defender budgets will only amplify the inequalities that Gideon was put in place to fight.  These types of cuts may include limiting the use of expert witnesses including cultural specialists, forensic scientists, and mental health experts.  In the course of a criminal case one of the primary functions of a public defender is to conduct vigorous investigation into both the alleged offense and the client’s history.  For the prosecution, the majority of investigation has already been completed by the police; thus alleviating a major financial burden for the prosecutor’s office.  Since the defense does not have such a luxury, much of a lawyer’s own time is often spent investigating the details of the police report.  This will be precious time that defenders will not have if they are forced to accept increased caseloads due to the sequester.  Additionally, specialty experts will not be able to be afforded as investigation into the client’s history if the proposed twenty-five percent cut is put into effect.  These basic necessities should be considered non-negotiable, and if disposed of, should be considered a violation of Gideon’s promise.

Finally, a fifty percent cut on training costs is perhaps the most troublesome in the wake of controversy surrounding Gideon’s half-century failure.  While hiring new defense attorneys in this economic climate would not appear to be an option, the above examples illustrate that to fulfill the fundamental right to counsel, more attorneys are needed to alleviate unrealistic caseloads.  With a fifty-percent cut, the new attorneys that would be hired would undoubtedly not be getting the same quality training that was available before the cuts were placed into effect.  Moreover, new attorneys are not the only attorneys who require training.  With the many criticisms surrounding our contemporary criminal justice system, more training needs to be implemented for judges and attorneys alike that address progressive issues such as implicit racial bias in the courtroom and alternatives to incarceration as punishment.  With such a drastic cut in training programs, we cannot expect our defenders—or our judiciary as a whole—to progress towards desirable reforms.

It is worth noting that on the surface the above-mentioned problems may appear only to apply to defendants accused of federal crimes.  Practically, this will not be the case.  While the sequester only explicitly targets federal budget cuts, a weakened federal government will prove detrimental to state public defender offices as well.  The state governments that often take the most money from the federal government each year are also the states whose public defender budgets are most lacking. 

The Supreme Court made a promise to all citizens that their economic status would not be determinative of their right to have representation at a criminal trial.  Today, the federal sequester threatens to take away what little that guarantee has come to mean.     

Ali Eacho

Junior Blog Editor, Criminal Law Brief

For the ABA's program on the 50th Anniversary of Gideon v. Wainwright, please click here. 
- Courtesy of the ABA.  

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[1]  [1] See, e.g., (a) http://www.abajournal.com/magazine/article/fifty_years_after_gideon_lawyers_still_struggle_to_provide_counsel/; (b) http://www.theatlantic.com/national/archive/2013/03/how-americans-lost-the-right-to-counsel-50-years-after-gideon/273433/; (c) http://www.nytimes.com/2013/03/10/opinion/sunday/the-right-to-counsel-badly-battered-at-50.html?smid=tw-share&_r=0.

 

Reigniting the Gun Control Debate: Senator Feinstein's 2013 Assault Weapons Ban

On Thursday January 24, 2013, democratic California Senator Dianne Feinstein introduced the Assault Weapons Ban of 2013.  The ban was introduced shortly after the devastating Sandy Hook Elementary shooting in Newton Connecticut where twenty children and six adult staff members were murdered by an assailant who entered the school armed with two semiautomatic pistols and a semiautomatic rifle.  Following several past mass shootings such as the Virginia Tech in 2007, and the Aurora, Colorado movie theatre massacre in 2012, the Sandy Hook tragedy reignited a national debate on gun control.  Feinstein, who herself became San Francisco’s mayor in 1978 after her predecessor was shot and killed, has a long history of fighting against gun violence.

Feinstein’s 2013 ban seeks to reinstate law from the Violent Crime Control and Law Enforcement Act of 1994, which expired in 2004.  Several key proposals in Feinstein’s 2013 ban include the following:

-       Banning the sale, transfer, importation, or manufacturing of 157 specifically named firearms and shotguns, as well as handguns with at least one military function;

-       strengthening the 1994 Assault Weapons Ban and various state bans by moving from a two characteristic test to a one characteristic test in determining what constitute an assault rifle;

-       banning large-capacity ammunition feeding devices capable of accepting more than ten rounds; and

-       protecting the rights of legitimate hunters and existing gun owners by excluding 2,258 legitimate hunting and sporting rifles and shotguns by specific make and model.  It also excludes weapons that are lawfully possessed, manually operated, classified as antiques, and those used by law enforcement.

Feinstein’s ban has been criticized for its impracticability.  Critics claim that by addressing specific firearms, the ban more easily opens itself to opposition centered upon the Second Amendment.  The Second Amendmentstates, “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.” The interpretation of the Second Amendment has been a common issue in our nations gun debate.  In the 2008 Supreme Court case, District of Columbia v. Heller, the Court ruled that the Second Amendment protects an individual’s right to possess firearms for traditionally lawful purposes such as self-defense.  Feinstein’s ban excludes banning legitimate hunting rifles and weapons that are lawfully possessed.  However, she seeks to ban a number of shotguns and handguns with at least one military function.

The implications of the term “keep and bear arms” in the Second Amendment, has also been well debated.  In Heller, the majority held that the right to keep and bear arms is not limited to the use of the military.  Conversely, in the dissent, Justice Stevens argued that implications of the Second Amendment’s terminology suggest that the framers intended for the phrase to refer only to individuals in service of a state-organized militia.  If this were not the case, Justice Stevens argues, the framers would have added an additional phrase such as "for the defense of themselves."

Feinstein’s 2013 ban seeks to narrow the determination of what qualifies as an assault rifle.  In the 1994 ban, an assault rifle was defined as a semi-automatic firearm that was capable of a detachable magazine and possessing two characteristics similar to a military-style firearm.  An example of a military-style characteristic is a grenade launcher, which allows grenades to be launched at extensive distances with defined accuracy. Other military-style characteristics include pistol grips, and barrel shrouds, which allow a gunman to more easily maneuver large assault weapons.  In the new 2013 ban, only one defining military-style characteristic is needed to classify a weapon as an assault rifle.  At a press conference, Feinstein stated that one of the criticisms of the 1994 ban was the ease at which manufacturers could move around the two characteristic test by eliminating one of the characteristics.  Thus, the current legislation seeks to make it more difficult for manufacturers to legalize certain firearms.

Feinstein’s ban comes along side proposals from the Obama administration to tighten gun laws.  On January 16, 2013 President Obama issued twenty-three executive orders to reduce gun violence.  Additionally, President Obama has vowed to sign Feinstein’s legislation if it withstands significant hurdles in Congress.

Both President Obama’s executive orders and Feinstein’s assault rifle ban have received widespread criticism.  Democratic Senator Heidi Heitkamp of North Dakota stated in an interview that no amount of gun regulation or executive orders would be successful in identifying individuals likely to commit mass shootings.  Democratic Senator Jon Tester of Montana refuses to support or oppose gun bans.  Instead his sentiment echoes widespread debate concerning gun control, which hinge towards exploring the effects of comprehensive factors such as video games and mental health on gun violence.

The events of Sandy Hook were undeniably tragic.  However, the momentum that surfaced immediately following the shooting has appeared to dwindle.  Lawmakers acknowledge that mass shootings are a problem but are indecisive on what action to take.  Many lawmakers express strong support in the Second Amendment right to bear arms. Additionally, we live in a nation where rifles are commonly used for hunting, collection, and sport. The White house has even released a recent photo of President Obama shooting skeet at Camp David.  A comprehensive approach is needed for the complexities that encompass gun violence.  There are various types of gun violence, which are not limited to mass shootings, domestic violence, suicide, and daily violence in major cities.  The fact that various policies will have an alternate impact on each one of these issues may account for some of the caution policymakers express when grappling with gun control legislation.

Raziya Brumfield,

Criminal Law Brief, Blogger

Image courtesy of www.kevinbryant.com 

Violence Against Women Act and Its Impact on Immigrant Women

On February 28, 2013, Congress passed the bill to renew the Violence Against Women Act (VAWA). VAWA is the federal law providing legal protection and services to protect women, and some men from domestic and sexual violence. Prior to the enactment of VAWA in 1994, there were no legal protections for domestic violence victims. Women were treated as property of men and courts often mishandled the domestic violence cases. It was not until the 1970s that the United States began to recognize domestic violence as a significant social problem. By the late 1970s, a number of shelters for batter women were built nationwide. Finally, in 1994, under the leadership of Vice President Joseph Biden (at the time a U.S. Senator D-Del.), Congress passed VAWA. Since then, VAWA has been renewed twice without controversy in 2000 and again in 2005. VAWA has made substantial progress in addressing domestic violence issues. It created a shift in the perception of domestic violence in the United States.[1]It has “improved the criminal justice response to violence against women” and has “ensured that victims and their families have access to the services.”[2]Despite the progress 1994 VAWA has made, domestic violence has remained a serious societal problem and many scholars called for stronger protection to target multiple areas in need of improvement.

The renewed bill authorized $659 million over five years for various programs that help prevent domestic violence and extend protections for victims with diverse backgrounds such as gays and lesbians, immigrants and Native American women. The 1994 VAWA expired in October 2011 but Congress failed to reauthorize it due to objections from Republicans over the new provisions in the bill.One of the bill’s most hotly debated provisions was adding undocumented immigrants to the list of women who can apply for law enforcement certifications for U nonimmigrant status, also known as U visas. The U visa is a temporary visa that “can be sought by victims of certain crimes who are currently assisting or have previously assisted law enforcement in the investigation or prosecution of a crime, or who are likely to be helpful in the investigation or prosecution of criminal activity.”[3] While U-visas are not exclusively for domestic violence victims, they allow undocumented immigrants to obtain legal status to stay in the US if they can assist the police to prosecute their abusers. This part of the proposal has drawn opposition from Republicans who argued that this provision would create potentials for fraud and abuse of visas from people who try to obtain permanent status in the US when they would not otherwise qualify.[4]  Earlier proposals included the increase in the number of U visas available, but eventually this provision was taken out. Currently, there are only 10,000 U visas available each year.[5]

Besides the a number of issues that victims of domestic violence face such as protecting children from abuse, finding and securing emergency shelter, informing family of the situation, and sorting through housing and financial options for the future, immigrant women have to deal with additional issues. Immigrant women face language barriers, economic insecurity, and discrimination due to gender, race or ethnicity.[6]Most importantly, abusers often use their partners’ immigration status as a tool of control. The problems of domestic violence are "terribly exacerbated in marriages where one spouse is not a citizen and the non-citizen's legal status depends on his or her marriage to the abuser" because “the immigrant victim ability to obtain or maintain lawful immigration status may depend on her relationship to her United States citizen or lawful permanent resident spouse and his willingness to file an immigrant relative petition on her behalf.”[7] In such situations, abusers often force immigrant partners to remain in the relationship by exerting control over the partner’s immigration status.[8]

Due to their status, immigrant women are less likely to report abuse to authorities. However, VAWA allows immigrant victims of domestic violence who are married to U.S. citizens or residents, to self-petition for legal status in the United States without relying on their abusive spouses to sponsor the petition.[9]The USCIS website includes the list of the requirements for U-visas. If immigrant women entered into the marriage in good faith, they can apply for U-visas but they must prove: 1) they have been abused in the United States by a U.S. citizen or permanent resident spouse, or have been abused by a U.S. citizen or permanent resident spouse abroad while the spouse was employed by the U.S. government or a member of the U.S. uniformed services, or they are the parent of a child who has been subjected to abuse by a U.S. citizen or permanent spouse and 2) they have resided with the spouse and 3) they are a person of good moral character.[10]Once a self-petition has been approved, the immigrant victim can then apply for a permanent residence status.[11]Since undocumented women are more likely to fear to be reported of their illegal status, the new VAWA would be of great help to the ones who probably need it the most.

However, as mentioned above, there are still many other obstacles for battered immigrants to report the abuse, including language barriers. Many non-profit organizations are dedicated to assist domestic violence victims by providing translated legal services and confidential shelter for them and their children. In the Washington, D.C. area alone there are numerous organizations such as Ayuda, My Sister’s Place, the Asian Pacific American Legal Resource Center (APALRC), Asian / Pacific-Islander Domestic Violence Resource Project (DVRP), the Hartley House, House of Ruth and many more. Further, the increasing and high number of immigrant victims of domestic violence suggests that the number of U-Visas currently available for them fails to fully provide protections that they need. Although the 2013 VAWA may provide stronger protections than the 1994 VAWA, there is still room for improvements.

Min Ji Ku

Blogger, Criminal Law Brief

Image by: NCAI

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[1] http://thescholarlawreview.org/wp-content/uploads/Haugen2.pdf

[2] Id.

[3] http://www.dhs.gov/u-visa-law-enforcement-certification-resource-guide

[4] http://www.ibtimes.com/violence-against-women-act-protections-immigrants-fuel-political-fight-426176

[5] http://www.hrw.org/news/2013/02/28/us-violence-against-women-act-renewed

[6] http://www.wcl.american.edu/journal/genderlaw/10/10-1orloff.pdf

Gender Soc. Pol'y & L. 95

[7] Id.

[8] http://www.futureswithoutviolence.org/userfiles/file/Children_and_Families/Immigrant.pdf

[9] http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=b85c3e4d77d73210VgnVCM100000082ca60aRCRD&vgnextchannel=b85c3e4d77d73210VgnVCM100000082ca60aRCRD

[10] Id

[11] Id.