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Kansas prosecutors seek right to enter evidence of prior bad acts in domestic violence trials

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Defense lawyers object, domestic violence expert raises issue of dominant aggressor

TOPEKA — Prosecutor Will Hurst said the scourge of domestic violence was so alarming — Johnson County alone has 1,100 pending cases — that Kansas lawmakers ought to allow admission of evidence at trial of a defendant’s propensity to commit domestic violence to better hold abusers accountable.

The law in Kansas and most other states typically prohibited submitting evidence of a defendant’s prior bad acts because the information could bias a judge or jury against the accused. However, Hurst and the Kansas County and District Attorney Association said the Kansas Legislature should adopt an exception carved out by House Bill 2630 and follow at least seven states enabling prosecutors to submit evidence of a defendant’s history of domestic violence.

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“I have personally handled hundreds of domestic violence cases during my career,” said Hurst, an assistant district attorney in Johnson County and supervisor of the county’s domestic violence unit since 2019. “The prosecution of domestic violence crime is an extremely difficult task.”

Hurst said independent witnesses or video evidence of domestic violence was rare because most incidents occurred in the home. Many times, he said, juries were presented two conflicting versions of what transpired. Juries unable to decide who to believe often threw up their hands and declared a defendant not guilty, he said. The result was people who beat intimate partners eluded justice and were free to repeat the violence.

“Informing the jury that the defendant has a propensity for domestic violence will assist them not only in weighing the credibility of witnesses, but in reaching an appropriate verdict in the case,” Hurst said.

Colorado and Missouri were among states with domestic violence laws relative to the Kansas proposal. In Colorado, prosecutors could submit evidence of “any other acts of domestic violence between the defendant and the victim” and between the defendant and other people. The Missouri law permitted admission of similar criminal convictions of domestic violence occurring within five years of the offense tied to the pending trial.

Weaponizing the law

The hearing before the House Corrections and Juvenile Justice Committee included opposition to the bill from a representative of the State Board of Indigents’ Defense Services and neutral testimony from the Kansas Coalition Against Sexual and Domestic Violence. The committee took no action on the bill.

Lindsie Ford, a public defender in Johnson County and member of the Board of Indigents’ Defense Services legislative committee, said changing rules of evidence would adversely impact domestic violence victims as well as defendants in these criminal cases. She said there was potential for abusers facing prosecution to weaponize the prior-act law against victims of domestic violence.

Ford said law enforcement officers investigating tense, stressful scenes of domestic violence commonly arrested co-parents involved in a dispute. This was a result of complex social dynamics not always apparent to police officers or other outsiders, she said. One outcome of this gap, she said, was victims of domestic abuse ended up being charged with misdemeanor crimes and pleading guilty to those offenses.

“Innocent people plead guilty to crimes every day for many reasons,” Ford said. “In situations like these, victims might be facing long, drawn-out custody fights and do not have the energy to fight wrongful criminal charges, too. Their abuser may coerce them into the plea. If the victim then takes the plea, they are now more vulnerable to future allegations by an abuser.”

She said the original victim of domestic violence could fall into a cycle of criminal charges and convictions linked to the first plea agreement and relied upon by prosecutors to secure future convictions.

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Dominant aggressors

Michelle McCormick, executive director of the Coalition Against Sexual and Domestic Violence, told House members Wednesday during a hearing on the bill a majority of the coalition’s 25 organizations providing direct services to victims of abuse statewide supported the bill. Their view was borne of years of frustration with the inability of law enforcement officers and prosecutors to adjust the “incident-based” structure for dealing with domestic violence to accurately incorporate the broader context of these violent clashes.

“For example,” she said, “one piece of critical context that is frequently missing is the understanding that many victims of domestic violence do not engage in the criminal justice process until physical violence has escalated  — if they call law enforcement at all.”

McCormick said amending the state’s rules of evidence could be useful by inserting context into prosecution of domestic violent cases. But such a change could also place in jeopardy victims who engaged in acts of self-defense amid a domestic assault, she said.

“Most first responders and criminal justice professionals would agree that treating the person who is the primary victim as the abuser does not serve justice,” she said.

She urged the House committee to amend the bill to require prosecutors to complete a dominant-aggressor analysis of the case whenever seeking a trial court judge’s permission to introduce evidence of prior domestic violence.

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Get help in Lawrence

Domestic violence situations: The Willow Domestic Violence Center
  • Reach the Willow for help 24/7 at 785-843-3333.
  • Find more resources on the Willow’s website at this link.
  • National hotline: Call 1-800-799-SAFE (7233), text “START” to 88788, and/or visit thehotline.org to chat and learn more, 24/7.
File for an order of protection

In Kansas, victim-survivors of stalking and abuse can file for court orders of protection from abuse or stalking online. Visit kspop.org and follow the instructions on the website. The service is available for any county in Kansas. You can also file for a protection order with traditional paper forms; check this link for more information.

Learn the warning signs

Read about warning signs of domestic violence and emotional abuse and learn how you can help at this link.

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