This episode offers a riveting journey into the thorny issue of self-defense claims made by victims of domestic violence. Listeners will leave with a fresh perspective and deeper understanding of the complexities involved in these cases. Kelsey McKay, a seasoned attorney and the founder of Respond Against Violence, brings her expertise to our discussion. As a former prosecutor, she shares invaluable insights on how the criminal legal system responds to self-defense claims, with often visible injury being the sole determining factor in assault cases.
We dissect the challenging issue of self-defense laws, particularly their failure to account for the fear and isolation that survivors of abuse experience. A chilling real-life case illustrates how systemic biases and lack of proper training can lead to grave injustices, especially for women of color. We also point out the strategic methods abusers use to isolate victims from utilizing the criminal system, and the uphill battle victims face when advocating for themselves.
As we wrap up, we highlight the urgent need for change in societal understanding and language concerning self-defense laws. This is to prevent women from being incarcerated for defending themselves against their abusers, through educating investigators and prosecutors on the dynamics of abuse.
This episode offers a riveting journey into the thorny issue of self-defense claims made by victims of domestic violence. Listeners will leave with a fresh perspective and deeper understanding of the complexities involved in these cases. Kelsey McKay, a seasoned attorney and the founder of Respond Against Violence, brings her expertise to our discussion. As a former prosecutor, she shares invaluable insights on how the criminal legal system responds to self-defense claims, with often visible injury being the sole determining factor in assault cases.
We dissect the challenging issue of self-defense laws, particularly their failure to account for the fear and isolation that survivors of abuse experience. A chilling real-life case illustrates how systemic biases and lack of proper training can lead to grave injustices, especially for women of color. We also point out the strategic methods abusers use to isolate victims from utilizing the criminal system, and the uphill battle victims face when advocating for themselves.
As we wrap up, we highlight the urgent need for change in societal understanding and language concerning self-defense laws. This is to prevent women from being incarcerated for defending themselves against their abusers, through educating investigators and prosecutors on the dynamics of abuse.
Attorney Kelsey McKay, founder of Respond Against Violence, is back to discuss how the criminal legal system responds to self-defense claims when they come from women who are victims of domestic violence. I'm Maria McMullen and this is Genesis, the podcast. Hey, kelsey, welcome back to the podcast, thank you. Thanks for having me. Of course, it's good to see you, good to hear you. We're picking up where we left off the last time and we say this all the time.
Speaker 1:Every time you come back to the show, I'm like, well, wait, wait, wait. I wanted to ask you more. That's where we are Today. We are talking about self-defense. So not karate, not jujitsu, we're talking about claims of self-defense, especially when the accused is a victim of domestic violence. That's a big tangle right there. Trying to sort all of that out, I wanted to talk with you about this because you had some really good thoughts in our last conversation that we needed to expand upon. Basically, you've worked in cases where the victim of domestic violence has been accused of some sort of crime and that victim is then claiming a self-defense argument. Is that correct?
Speaker 2:Yeah, to take a one-step backwards and untagled that web a little bit is. Again. I think we put labels on something like a crime or not a crime as a defense or not a defense. Even before I started having cases where people would reach out where a victim had been criminalized or arrested in self-defense from the prosecutor side before I went out of the DA's office and kept going on, that journey that we discussed in prior podcasts with survivors is just seeing that in the strangulation work I did, disproportionately a lot of victims fought back during that assault Traditionally domestic violence. You don't see a lot of victims, particularly female victims, fighting back against men because we all know that we're probably going to lose that battle. So often it's the more protection, it's not the fighting back. But when I handled strangulation cases, what I really started to see emerge was a pattern of when you think you're going to die, you fight With strangulation, you think you're going to die. That was my introduction to oh, there's some justification in fighting back. Then I started to see a pattern of when we relied on what we saw with our eyes, whether it's bloody or a visible injury. That is where I would see it not just labeled as mutual combat but victims actually starting to be arrested or accused or seen as the aggressor. Because we know strangulation doesn't always leave many marks. Much less is it a bloody crime scene that when someone who is doing the strangling is bitten or scratched, that's something that officers can see and take a photo of. That started to become a complicated thing for officers and prosecutors to navigate, so, unfortunately, what would result is everyone kind of throw their hands in the air, call it mutual combat and ignore context and ignore all the other things that I found to be really relevant.
Speaker 2:As I kind of went and continued on that journey, I see a lot of victims that when they are arrested or when they have killed their abuser, or when they have fought back and are arrested for assault, is that what happened prior to that is a strangulation? Is that event where they felt like they had no choice but to fight back? It was their only way to survive? That was kind of just the context to start to recognize myself that visible injury was not always the guiding force in determining who the aggressor was or who the person who was the abuser might be. That allowed me to apply context and kind of think through the survivor's experience. When you're being strangled right, you try to pull the hands off or you fight back, you try to get your airway open. That kind of just allowed me to realign how I looked at assault cases beyond the 101 of just seeing what injury I could see with my eyes, which unfortunately is what I see a lot of officers do when they go to a crime scene.
Speaker 1:Okay, Just to take that one step further. Usually, strangulation is not typically the first thing that happens. It's in a long line of abuses and different forms of abuse that this individual has experienced. We've already had, probably before the strangulation. There may be other domestic violence calls that have been made.
Speaker 2:Certainly, abuse right, whether it's physical or not. We know that strangulation is the indicator that they have lost control. It's escalated. Absolutely. That's why I had to predict her of homicide. That's why we see it within the 12 months leading up to most domestic violence homicides. Absolutely, what we see is before the strangulation. What I see is a lot of perpetrators utilize their knowledge of the system's lack of knowledge around abuse and violence, the reason people use violence and threaten the victims with if you do this, I'm going to report you for this, or you know what you kicked me back? Unfortunately, what that does is it's a strategic tactic of abusers to isolate victims from utilizing the criminal system as a safety net.
Speaker 1:You've had cases like this right.
Speaker 2:All the time when I was a prosecutor I would see, because I staffed cases from the beginning, so from the streets, when detectives might be making a charging decision, they would often reach out to me when it looked like a mutual combat. They couldn't figure out who was the one that should be arrested. Should they arrest them both? Luckily, that allowed me to start to work through these cases before they were filed, because I helped make those filing decisions. What I learned pretty quickly is I needed to have more information than just what the injuries were at the scene. That's when I would encourage them to ask about history of abuse. This is where things like lethality assessments became helpful for me to identify. Is this a controlling perpetrator? Is there a history of stuff? Instead of being confused by if she has a prior arrest or if he's saying she assaulted, I was able to look at those non-tangible things that are actually much more determinative in who is the predominant aggressor.
Speaker 1:When it comes to fighting back, as you said, sometimes a victim might defend themselves with their hands or their fists or what's available to them, or they might use a weapon, depending on the circumstances you just said, the key thing, which is what's available to them.
Speaker 2:People, victims who are being abused, assaulted particularly when it's in the movement or within an immediate context don't choose where that assault occurs. Therefore, don't always choose how they fight back. What we do know is if you're in hand-to-hand combat a male and a female you're unlikely to win. If you're the female, much less if you are smaller you have fear. They're saying I'm going to kill you. You're trying to survive. Unfortunately, what I see happen all the time is whatever they have available, whether it's a knife, whether it's a lamp. A lot of the times it's a gun. That is what they use, because that is what is going to allow them to survive in that moment.
Speaker 2:You see a lot of officers recommend to victims like you should get a gun. What we do know is having a firearm as a victim of abuse is more likely to be used against you or more likely to be used. Unfortunately, what I see is to get them arrested for homicide, because it kind of equalizes what is the becomes a neutralizing force and a really disparate relationship in terms of who is capable of causing more harm just with their body. What I see is when you have weapons at your disposal or you have to use something other than your fists. You tend to use something that causes more blood. When officers come to a scene and they see all that blood or they see that black eye, that becomes a really significant component in them giving more weight to who is the abuser, who was the aggressor. I see it's interesting. There was a trial this last week where the common is on all the blood and they use this paver, they used a bat, as though they had some choice when he was strangling her in what weapon to use.
Speaker 2:I loved your use of the languages. What is available to them? They're limited. They don't get to strategize that out.
Speaker 1:Yeah, I think there's limitations, because if you're attacked by someone or being abused by someone, you don't necessarily have the gun on your holster ready to fight back in the very moment that it's happening. I think perhaps when we think about self-defense, we don't always think of women practicing self-defense. We often think of, to your point, hand-to-hand combat, and that makes us think of more masculine activities, not things that women would do. And then, from what I understand about self-defense claims, they usually have better outcomes for men than they do for women. Is that correct?
Speaker 2:Yeah. So you said like two really important things leading up to that, and that is that when you say self-defense, people think like man to man. And what's interesting is similar to how domestic violence laws were created. Self-defense laws were similarly created and that is. There's no context really in it. So it's kind of like assault is you cause bodily injury, and in the 70s and 80s those laws were developing around domestic violence. We kind of replicated a fight in a bar with two men. Did this act cause bodily injury?
Speaker 2:And it really has led to a lot of confusion and how to investigate domestic violence outside of self-defense, because we don't understand context and so we don't understand fear. We don't understand why they don't report, why they recant. The same kind of application of law is in self-defense, which is self-defense. Laws are not written for women in mind, they are not written for the context of abuse in mind, so they require these like imminent, imminent, see, that is really judged by like this one second snapshot right, was he holding the gun up in your face when you shot him with the other gun? Well, no, usually she has to get the gun away, or maybe he strangled her and he went in the bathroom and she knows she's about to die when he comes back out. So she's got to go find something and she comes out of a machine I've even seen cases where he's asleep, right, but the environment is such there has to be an opportunity and where we really see that occurs when she's already been isolated from a system. You know a lot of people are like, well, why didn't you call the police? Well, you know the last five times you called the police, right, she got arrested or he didn't get arrested. And abusers use that isolation from the system and since survivors are left to their own devices. And so I think it's important to keep in mind that these laws, both the offensive and defensive laws, were not really written with that context in mind.
Speaker 2:In terms of self-defense claims, it's interesting because I see many, many perpetrators use a few different approaches as quote defenses. I call them doubts and defenses because they're real legal defenses. And then there's what we call causing doubts, and that's where it's her credibility, it's victim blinding, it's these types of tactics. But defenses like self-defense are certainly a category in which I often see male abusers who are charged with assault or other crimes against a victim of abuse claim. You know, she came at me. She did this.
Speaker 2:We see it all the time in the strangulation cases and when we look at convictions and we look at people who are actually charged with an assault and they claim self-defense is what we do know is that women are more likely if they are charged with something like murder of a partner, or more likely to be convicted and given more prison time than a male counterpart, which is you know. It speaks to the disproportionate impact of it, because there are a lot less cases. When you look at domestic violent tomocytes. There are many, many less cases where there's a woman who kills a man. There's many, many more men who kill women that get identified. But when you look at the women who kill a male, what you see is, in my opinion, about half and half where it's an actual looks to me like a homicide and about half that are self-defense cases that someone didn't understand.
Speaker 1:Okay, so let's go ahead and break this down like using a real case. So tell us about one of the cases that you've worked on where this has been the kind of scenario that you've had to deal with.
Speaker 2:Absolutely so. You know, I have like two kind of different examples. One is when we're talking about self-defense to the abuser. The other is probably the case that has followed me throughout my entire career, and it was. We may have even discussed it on the podcast about strangulation. It was the first strangulation case I was successful and got prison time back in 2012.
Speaker 2:And when that perpetrator went to prison for seven years, when he was about to get out on parole and the victim was notified, she moved to a different state and she purchased a firearm because she knew he would find her one day and an incident occurred. He was not there, but her daughter came in, had been sexually assaulted, and she goes and chases her daughter out in a parking lot and she has this gun that she had purchased to defend herself one day if Vondrick came in and she had cocked the gun and what she found herself in was a situation where she had ever thought about what you do once you've cocked it, other than you know, defending herself. And so in that moment, what she did is she shot it in the air. Well, the perpetrator who was not her perpetrator, but someone who had sexually assaulted her daughter then reported her for shooting him of what she did not. She shot it in the air. And here we are like 12, 13 years later and she has a conviction for doubly conduct. And so that was kind of my first introduction to how people use firearms and criminalize. Years and years later, outside of that relationship and I'm kind of focusing a little more specifically on using self-defense in a relationship is I started to see, as I mentioned as a prosecutor, so many women who fought back during a strangulation but taking a step beyond that, cases where maybe she was being strangled or otherwise abused and had been isolated and she had no choice but to kill the abuser. And those are the ones you know.
Speaker 2:I'd love to talk about those because so often this is where I think officers believe they've gotten so lucky right. It's the best, easiest homicide case that they could ask for. They're so grateful to have all those elements. One you know you have a dead body. It's right there, it's bloody, the weapons there. The quote offender, the quote murderer, calls the police. They usually go do an interview. They quote, confess to the killing and they don't know that they're being investigated for murder. And so before you know it, you've met all the elements. You arrest the victim, they get charged with murder and they get prosecuted and sent to prison. And I see that all the time, and I was doing an attorney in last week and I mentioned this. This whole isn't that great. You have a confession, you have a weapon, you have a bloody scene and you have a. You know they're all knocking with me because, like that is like a real easy case, right, and that is the path that I usually see on these cases, where the victim ends up killing the abuser.
Speaker 1:But things are not what they seem right 100%.
Speaker 2:But it's interesting because, just like in the non-fatal cases where they fight back and there's a scratch mark or a bite mark that resonates and is identified by the officer, it's an easy, like tangible thing. It's the same thing in these deaths where she shoots him, she has to use some equalizing force, because we mentioned the hand to hand combat is not going to be, it's not going to be the solution. They get distracted by the blood right and we're like, oh look, how violent it was. What's interesting is, in some of these cases where I've now represented or worked with attorneys who are representing victims who are charged with homicide, is how often it's so clear to me the strangulation was imminent or the threatening with a firearm incident. Her case was so imminent, yet they seem to really narrow it down to like the very second she shot the gun.
Speaker 2:I have the first case that I handled that defense attorneys reached out to me soon after I left the DA's office was a case where that's what had happened. She'd shot him three times and they just and you see this a lot as well which is it was excessive use of force. You know, as though there's some ability for someone who was about to die and is protecting themselves, to do a calculation in their head, much less know what the law is, and then calculate all that and say, oh, that was just the right amount, right, and in a lot of the cases I've handled she's actually trying to escape. So yeah, I've had the ones where he's asleep and she might shoot him and those are obviously much more nuanced and difficult. But most of the cases where I've represented the victim who is charged, they were literally trying to get away and they were given no choice.
Speaker 2:The first one was a case where he had strangled her there. He was actually on bond for strangling her and when he was on bond they were at a house and there was another person over and he wanted her to participate in a threesome and she didn't want to. So she separated herself and went up to the bedroom and was just trying to neutralize the situation and walk away. He came up and he strangled her unconscious. He said that if she didn't do it he was going to kill her. And there was a period of interim where he went into the bathroom and there was a gun on the dresser, which is interesting. Abusers often leave those firearms as kind of that quiet threat, but they exist Right. And he grabbed that firearm not to go in the bathroom and shoot him, not to put it, you know, underneath the pillow. So when he came back she could shoot him. She got it because she wanted to leave that house and in the past when she tried to leave the house, what did he do? He wouldn't let her go. This is, you see, this all the time in domestic violence. Like she can try to leave, physically or emotionally, that doesn't mean they let him go. And so in this case, she got the gun and went downstairs while he was in the bathroom and simply had it because she knew she might need a negotiating tactic to get out of the house and she didn't want to die. She didn't want to kill him, but she didn't want to die. And she goes into the kitchen to grab the car keys right, and she has the gun in one hand. She reaches for the keys, turns around and suddenly guess, who's there coming at her and she holds the gun up. And then he lunges at her and she shoots and she shoots three times and she calls the police. It's bloody. She confesses, they arrest her, they charge her, she's charged with murder.
Speaker 2:Now, in that case I was lucky. I had prosecutors who allowed me to articulate the history of abuse in a way they could understand it and you know it's difficult as a prosecutor to ever dismiss a murder case. I mean, you have a family who has suffered the death of a loved one, no matter how, whether they recognize they were abusive or not. That is a mourning process and can be very difficult for a prosecutor to dismiss and that's why often you might see these go to trial, even when it's like I don't really know, because you let the community decide. Unfortunately, there's a cost in a woman who is a victim than having to be in jail for a period of time be tried. That's incredibly traumatizing, but likewise the trial that I did in February.
Speaker 2:Taisha, who was my client, she also was trying to leave the door and in that case all the indicators that you know escalate things to homicide. She was separating. She had tried all the things. She had packed the car. Things had been cold the night before and the following morning, after he had left, he came back and she was simply checking her grades on her phone inside the bedroom and he came at her with a gun which he had never held and threatened her with before, but always carried on his person in a crossbody bag, you know, had laid on the table but had not overtly threatened her with it, which I think is strategic. He knows it's not a crime, right, right when she was actually going to leave, he came at her and raised the gun and she was able to slam the bedroom door to protect herself and he put the barrel of the gun. I think the reflex was to push it into the door and it was in between the door jamb and so it allowed her to actually grab the gun. She would never have been able to do that, like in a hand-to-hand combat, you know, going for the gun, going for the firearm. So when she was able to do that, she retreated into the bathroom, locked it, he kicked the door in, but because she had that firearm it kind of neutralized things and he backed off and she was able to get around and she went running for the front door and when she got to the front door, right, it slams behind her and he says where the FD think you're going, and at the same time he reached for the firearm and as she pulled it up it shot him.
Speaker 2:And so so many of these cases they're literally trying to leave, and in that case not only did she spend a year in jail, she spent four years with this case pending, her life absolutely destroyed.
Speaker 2:We went through an entire murder trial and luckily she was acquitted, as was the client I mentioned earlier who was trying to escape the house as well. That was dismissed prior to trial. But just going through this actual trial with Taisha was just incredibly insightful and I've started to see patterns in so many of these cases where the same limits that we have in investigating and identifying context and fear they don't understand it when they investigate homicide. And I think the thing is we have defenses, we have self-defense, but we don't teach our investigators how to investigate it. Right now, most protocols I know are like you're investigating homicide, You're not there to investigate self-defense. There aren't protocols on how to investigate self-defense. So all those same lack of training and biases and efforts at not recognizing how to interview someone who's experienced trauma and then looking like their line exists in these cases as well and unfortunately lead to a lot of injustices.
Speaker 1:And for victims of domestic violence, especially women. They are twice as likely to be convicted as men when claiming self-defense in their home, and women of color, specifically black women, who use self-defense or stand your ground type of defense are even more likely to lose a case with that type of defense.
Speaker 2:Yeah, and it circles back to kind of being isolated from other avenues of safety and help. And so we know that certain vulnerable populations, particularly women of color, for instance, I would also include in, like trafficking survivors, these types of really vulnerable populations they're the ones with the fewest options to address the abuse against them. And so when you have less options, and one of those options is to kill them to survive, that's where you see that disproportionate impact coming in and having an impact on, I guess, the back end or the front end. We see that same disparity in women of color, who experience a disproportionate amount of abuse and domestic violence, homicide as victims who are not charged, and so we just see that carry on.
Speaker 1:Well, I think the odds are stacked against women who experience domestic violence. And I read somewhere and I think it was in a study or a white paper, and I'll go back and look for it and maybe include it in the summary of this podcast, but it's a quote and it reads society prefers dead women than women who fight back, Because it's easier for society to digest the fact that a woman was killed or murdered by a domestic partner than it is for her to commit murder in self-defense.
Speaker 2:I mean, I really wish, I even felt that society even cared about the dead woman.
Speaker 1:It takes. Yeah, it's a stretch.
Speaker 2:I mean, right, that's a sad state of affairs, that that's supposed to be good, how bad it must be when she is quote, the perpetrator. And I think one of the things that multiplies on top of that is and it speaks to the quote or the statistic of women are two times more likely to be convicted in cases where they alleged self-defense is. Most perpetrators say something like self-defense. Now, if you are a perpetrator trying to escape accountability and not get convicted, you're going to articulate all the avenues to prevent yourself from being held accountable, whether that's attacking her credibility, blaming her, getting her to her hand or saying that she came at you in its mutual combat. As much as you see abusers aggressively advocate for themselves, you see victims do the opposite. And I think this is really important, because this is where everyone thinks well, why didn't she say this? Or why didn't she speak up at the scene? Why didn't she say on 911, the 911 call, I thought he was going to kill me. Why doesn't she say in the investigative interview I was so scared, I thought he was going to kill me. He's so abusive. Why don't they even recognize that? And that's their problem is they don't know they're being investigated for murder. Also, as we know, with abuse it's hard to sometimes identify. Then you add in trauma and that they have just killed someone that they may love. And that isn't usually the goal. They don't want to kill them, they want to not die themselves. And so, unfortunately, when you have a victim charged, unlike perpetrators, they don't tend to advocate for themselves and in many cases it's because they don't know they need to. And then you think of the complications of how investigators do interviews, how detectives really interrogate, particularly when they're seen as a suspect. We know they do that when they're even seen as a victim, but when they're seen as a suspect it's just devastating to their case.
Speaker 2:In the trial that I did earlier this year, I give the defense attorney a lot of credit in that they recognize there were some things they didn't understand. They were fabulous attorneys. They worked so hard on this case. There were so many hours of interviews and I remember the theme and the thing that they kept repeating to me is why doesn't she say she's scared? Why didn't she just say she was scared? All these interviews, all of these calls, all of these opportunities that she had? Why didn't she look at the detective and say I was so scared I thought I was going to die. And it's so interesting because I did hear her say that in the interviews, not always in those words but in everything as she was trying to articulate it to the officers. And it's interesting because at some point she actually goes to acknowledge how scared she was and she's interrupted by the detective and is like, oh, is it OK if we search her home and they have her in a soft interview room which is made for victims who have experienced trauma to feel comfortable sharing their story. But they really weaponized that against her and they lower any thoughts she may have had that she's in trouble. And they do all the interviews where she's trying to answer their questions but yet they're constantly interrupting her because they're not looking for evidence that she was scared.
Speaker 2:They're not looking for evidence of fear. They are asking your traditional questions when was your body? These things that someone who has experienced thinking they're going to die and experienced trauma can't answer If it's not about your survival. You are not necessarily recording it. You're not thinking, wait, which hand? And then this that there, what angle of the bed was at? You're not thinking about those things. So when you're asked those by an officer, which is kind of what they're trained to identify, get them stuck in the story and then, well, three ballistics or forensics, see if that angle would have worked. They're doing their best to answer questions, but in the end it ends up being kind of a lot of guessing and filling in the blanks. But what they aren't asked about are the things that matter, is the fear, those things that allow them to survive, things associated with their safety, which are things they could articulate if someone knew how to ask about it.
Speaker 1:Are there any protocols in place in those types of investigations or interviews to have an advocate or some other person even if it is an attorney someone present with that victim who's being accused of a crime, to help them understand what is happening here, that they are actually under investigation?
Speaker 2:I wish. I'd love if someone does have that to reach out to us so we can start working on this issue with if some of this has already begun. But the answer is no, because they don't want that to exist. When you think you are investigating a crime, and I will be honest.
Speaker 2:I believe many of the detectives in law enforcement and many of the prosecutors who do these cases actually think they're doing the right thing and they don't know the mistakes that they're making, because you don't know what you don't know and so they're not going to say, hey, you should really call an attorney or hey, let me get an advocate in here. And when they do, they're tricking up. What we do know is we want suspects to talk Like the best evidence. I'm sure any detective or human will tell you if you've watched Dateline and or if you're a homicide detective is you want two things you want a confession, you want a video of it, like done easy. And often they're looking to get a confession and they know, if they say, hey, I'm trying to get a confession and if you do it, I'm going to arrest you for murder that they're going to stop talking. And defendants have rights and one of those rights is a right to be silent as well as a right to an attorney. But anyone who knows anything about investigations says you don't really want to highlight that right. Yeah, you got to read in the Miranda, yeah, you got to stop when they unequivocally say I want an attorney.
Speaker 2:But many of these victims. Many of these people don't even know they need an attorney and so, just like with investigations sexual assault or assault when women are reporting, they are looking for guidance by the people they believe are protecting them, which is often law enforcement. It's similar to sexual assault cases where she ends up getting charged with false report. So obviously, if you guys have not watched, I've started to assign it in training. So law enforcement is the wonderful documentary on Netflix, victim Suspect, and what I started to see there when women reported and they didn't understand trauma or why they didn't do certain things, is at some point these victims become a suspect, but yet they the same tactics of you're not going to highlight you should get an attorney because that's going to impair the investigation.
Speaker 2:So I know of no protocols in training. Lightly, I've been asking about is are there protocols to investigate self-defense? And so I don't see any of those things. And again, when you apply the normal lens of I think they are a criminal and I'm trying to gather evidence, ie a confession, you're not going to have anyone throw up their hands and say like, hey, before I solve this case, would you like to have an attorney, who we all know is not going to allow you to talk to me, and I see that in all these interviews you know it's like you say you're good.
Speaker 2:Oh, okay, I got this little Miranda. Let me just read it. You know I got to, I got to do that for everyone. And she tends to look towards them like, well, do I need that? Well, detective in their life is going to be like you really should, because I'm about to trick you into confessing to something. And that just doesn't happen In my experience in the cases that I've handled.
Speaker 1:I wanted to go back and ask you about a couple of other things related to claims of self-defense. So is the claim of self-defense the same or similar? To stand your ground.
Speaker 2:So, okay, you're right, they're different like types of well, they're self-defense, and then there's what is? What are the types of things that justify a use of force? And you have a use of force, and then you have deadly force, right? So there are some scenarios in which you were justified to use quote non-deadly force, like punch them back, and it's usually quite into how much force or threat is used against you. And then there are circumstances in which you were justified in using deadly force. And right, that's your. You know, did they have a gun? Did they threaten, did you fear for your life?
Speaker 2:You can kind of think of it like an officer involved shooting, where an officer might have to shoot a suspect because the suspect was shooting at them or they, they, they were going for a gun, and so they were justified in using deadly force. There is kind of this caveat of depending on the state, where property is essentially defined as almost like a human being and you're justified in using a certain amount of force, and often, when it is your own home, that can, that can go all the way up to being justified in using deadly force, even if you don't necessarily feel like your life is is is being threatened. So it's kind of ironic. I often joke that we treat property more seriously than women. I remember a case where he had kicked in the door and strangled her and they didn't charge him with the strangulation but they did charge him with a criminal mischief for damaging the door and I thought, wow, we are prioritizing property and door frames more than women and I think the self-defense law where it is around your dwelling as a good example of that.
Speaker 1:Yeah, because I've always kind of thought that stand your ground was, you know, say, if someone invades your home and you have a gun, then you're justified in defending, in standing your ground and defending your property, and I think that that's been the case in America for many centuries. But I thought that those types of laws applied to men because men typically own the property. Is that correct?
Speaker 2:So the law Historically historically yeah.
Speaker 2:I mean, I think that ownership is is a theme that goes all the way through all of our laws, including self-defense and particularly domestic violence, where women and their children, by extension, are the property of a man and with it it's interesting I had. This is why I love talking with you, because there's always synapses that connect. I hadn't really thought of. But you know, we know, most domestic violence, homicides and most abuse occurs where Like in the home.
Speaker 2:In the home, yeah, so many of the laws that differentiate, like ownership of a house, so like burglary, if someone breaks into your house, that definition of owner really inhibits and creates a barrier for women because if he has ever been been on the lease, if he has any property in that house, even if the perpetrator is not even allowed to be there say, there's a protective order, the number of times right, he'll break into the house. She calls the police, they come and they're like, well, he's on the lease, like he's allowed to do that. I see that all the time. And so this this is interesting because if a woman in her own home feels like she's going to be killed just by technicality because he's quote on the lease or lives there, she can't use that same self-defense law that if a stranger broken in, she'd be able to use Right. It's like it creates a standard and that's a really interesting nuance I hadn't thought about.
Speaker 1:Well, it is a double standard, and we're using, you know, these, these defenses are being used inappropriately when it comes to domestic violence, because it isn't until the latter part of the 20th century that women actually could own property separate from their spouse or their husband. Right, and so stand your ground, or even self-defense if somebody were to break into the home or if he were to come back into the home where you are now residing, even if he's under a protective order. It's just not going to fly in a court of law, right, and so, again, the odds are stacked against you and there aren't any defense strategies, or many defense strategies, when the situation is domestic violence and she had to defend herself.
Speaker 2:Well, and that's where you know, I think, one of the conversations you know often, in order to change laws, we have to change understanding, and that requires conversations like this, and and that is starting to see these actions not as quote, defensive, but more survival. You have started to talk about when women fight back during the strangulation, right, when they scratch, when they bite, Often when they pull at the hands on their own neck which results in a little injury on her neck is not calling them defensive injuries like we traditionally would, but calling them survival injuries. Right, these are survival behaviors and it's different than like two dudes getting a fight and we both, you know, use our fists and and there you go. These are a different type of quote. I guess violence maybe is the word, and this is where we, we look at violence and don't understand the different motivations for why people use violence or the different types. We just go like, oh, physical act, there you go.
Speaker 2:What we do know is that the use of violence by men versus women is entirely different. There are very distinctive differences in the motivations for why women use violence, in the intent and, probably most importantly, the impact of that use of violence, and that's why context matters. We know that women's use of force, use of quote violence, is usually self-defense. We also know there's a lot of differences, because when you do use violence as a woman against a man, the impact is very different than mostly when men use it against women. If my husband uses a violent act against me, it's going to instill fear that controls my behavior. It's a course of control tactic. It's going to change my behavior going forward.
Speaker 2:I remember a victim of strangulation said once he had strangled me. It was like having a gun held him ahead for the rest of my life. Right, he didn't have to do it again. Whereas it's often much more situational when women use it against a man, like maybe he stops in that moment, but it's not going to have this long lasting impact. And that's where, when we only look in the immediate, like incident of that act and we don't understand context, we start to lose control of knowing how to investigate it.
Speaker 2:And the other thing that we know is that when women use violence in a relationship, that usually ends when the relationship ends. And we know that's very different, particularly in domestic violence with male offenders against women. We know that the most dangerous time in a relationship is when she leaves, it increases the likelihood that she's going to be killed significantly, whereas a woman right, if he leaves the relationship, that violence doesn't usually extend beyond that, it doesn't escalate to homicide. And so, understanding that different genders and also different people I'm not saying it can't go cross over into different genders and types of relationship, but they're done for different reasons and they have different impacts, and that needs to be considered, not just because of gender, but also because of the vulnerabilities of different populations, who may or may not feel as comfortable reporting crimes, for instance. And so I think having that conversation about gender is important, as is the conversation about race and other vulnerable populations, because they end up being the most vulnerable populations to be convicted.
Speaker 1:Those are really important points to keep in mind, and I want to go back into the courtroom per se for a moment and talk about what's available to women who have either fatally or non-fatally injured someone in self-defense. What types of other strategies can they use to be successful and treated fairly in the courtroom? And have you ever worked with a client who accepted a blind plea?
Speaker 2:That's a lot to unpack, so let me make that organized. So one I was listening to the wonderful podcast if our listeners haven't already listened to it that you did a couple months ago with the wonderful project, sorry, and you can probably name it better than I did, but the program at Tulane University, at the law school oh, the Women's.
Speaker 1:Prison Project yes.
Speaker 2:Yes, you know, and it's interesting I kind of approached this topic backwards we have some wonderful organizations and resources out there, what was formerly called the Better Women's Justice Project, programs like at Tulane, that look at clemency and look at women who have already been convicted and who are in prison, like what do we do about that? And that's an area I'm familiar with. It's something you know. When I talk about taking the journey of the survivor, once I was able to train the Pernin and Pearl Board and the clemency board. To me that was a real moment because it was coming full circle where I wasn't just training the Pearl Board about perpetrators who strangle and why they should stay incarcerated, but also because that Pearl Board is also often the clemency board, is teaching them that when these cases you know, a criminalized survivor comes up for parole or there is a claim of clemency, to consider the environment and the context and the often injustice and to release these people.
Speaker 1:Right, and actually read that file of the statements and stuff that are in there about what this person is capable of or understand it, right?
Speaker 2:You know, I think that there's some really wonderful work being done on that end, but what I would love to do is not have the women in prison to begin with, to not have. These women have spent, you know, two decades of their lives and so I think there's some really good people doing work on that, on that. I don't know, you've got back in front end, the bad end. But what I have found is because I have kind of unique access to the other side, the investigators, the prosecutors, and with the work I traditionally do I'm not just speaking, you know, I'm not speaking at defense conferences, I'm not, you know, traditionally doing. That is that I have access to an audience where, if they understood the same things that are being the same arguments being made, the same information being shared on the clemency, and if they understood it up front, we could prevent it to begin with. And you know, there's too many women in prison even for those programs to be able to get released and it's a lot I mean incredible amount of time and energy and, frankly, trauma for the practitioners in the women in prison. But main, if we can just teach them to do it right the first time, not only are we going to improve investigations of domestic violence and stalking and everything else and homicide prevention. We're also going to be able to prevent this other thing that is happening. So it's not just like oh, how many things do we have to learn? Literally it's the same thing. If you learn lethality, if you understand abuse, if you understand the dynamics of abuse and you understand how batterers work and how victims respond to trauma, it tells all the problems across the board.
Speaker 2:So what I have found, however, is if they do get arrested, you know, I do see a lot of prosecutors putting more effort into this, which is wonderful. It's kind of screening it on the front end. So I love to hear that and I love anyone who's doing that to reach out and share how that's working, but kind of the interim thing. So it's like if I can't get the prosecutor and investigator to know yet and I don't want to have to have them in prison, where I find the entry point is defense attorneys and that's kind of who has reached out to me on these cases is back when I was a prosecutor, they thought maybe I was a little bit loony-tuned and going a little too far on these domestic violence cases, but over the course of time. What they've realized is they also are representing women who are charged and if, whatever conversation I had five years ago or repeated over and over, they didn't liken me as a prosecutor, somehow stuck with them and they noticed it when they reviewed a case like oh my gosh, this is kind of what she said.
Speaker 2:The number of defense attorneys reaching out to me really over the last 18 months has really kind of been a breath of fresh air where I've learned, oh gosh, if we teach public defenders or defense attorneys yeah, I may not have prevented all of them yet, but we could keep them maybe from being convicted. And that's what happened in that first case Jasmine who had been strangled and then took the gun so that when he tried to not let her leave she could use it. One who got the keys and then shot him. It didn't go to trial that defense attorney. They reached out to me and I was able to explain it and articulate it and work with a prosecutor and they dismissed it. So that's mostly what has happened.
Speaker 2:When people reach out, we work together and I'm so grateful because, again, as we've talked about in other podcasts, I was very black and white before. You know victim, defendant, victim, bad, no gray in between, but right, the nuances and the powers in that gray area. And so I have those same defense attorneys have reached out. So I think if we have conversations at defense attorney organizations, if we educate judges, if we do these kind of interim measures, that acts as another safeguard and right. There's never enough layers to have filters. So for now, that is the best advice I can give is making sure that we bring defense attorneys in on this conversation to. I don't know, it doesn't have to be me, please don't like. I prefer it not to be me, but we have so many incredible advocates and I mean you look at something like Genesis, women's Shelter and all of the incredible experts and advocates and in all of our communities they would be an incredible resource to our investigators and prosecutors if we understood why it would be so important to bring them in and listen to them and help them guide these types of investigations and or assessments of cases.
Speaker 2:And to your point is you know where I see society not be able to shift or practitioners not be able to shift is just like the victim may not know to advocate for herself within the context of an interview right before you know it, she's put in the hands of a defense attorney who maybe doesn't understand it. So when the state offers this plea deal that's not murder, for instance it seems like a real good idea, and so they're going to follow the advice of their attorney and if their attorney is like I mean, this is a good deal, we should take it. This will keep you from being imprisoned for whatever, and so a lot of these women end up pleading to it. It's kind of like you also see kind of quote false confessions though I use that term oddly they're really confessing to the thing that we label it as, and so I think what we end up seeing is a lot of women who are survivors. Not only do they get charged because they can't say I was scared and in articulate the defense, when they don't have a defense attorney or a prosecutor who's also looking to provide that guidance. They get kind of talked into these, please, because you know, what's better than life in prison is not life in prison. So if there's no one helping you unpack your abuse, much less the legal system like we have a real problem.
Speaker 2:I remember on this case we did earlier this year one of the first things I did. I said has anyone explained to you what the self defense law is? And she was like no. So I literally got out the law and I was like this is what the law says, right, and these are the things that I'm trying to pull information to present. And I was like oh, and so you know, I see those please. And then, of course, what happens is everyone relies on that play and outcome is like see, she did it, and so no one thinks we have a problem because you have a lot of these women.
Speaker 2:I don't, I don't know the data. I'm kind of curious about it now is how many of those women in prison, right, who we know are already two times more likely to go to prison than the man, how many of them actually pledged their charges? And I'm here to guess that a lot of them did. I don't see a lot of these cases tried. If I see self defense cases, it's often like the senior grant Duritz Geissie on town, as you mentioned earlier, and so I think that that reinforces the false narrative that already exists and silence this population and this issue. So we don't even know it's a problem we need to deal with, so we're unlikely to address or invest resources or time or shift our approach when we don't even know it's a problem to begin with, which seems to be what I specialize in?
Speaker 1:Yeah, absolutely, and I think people don't know it's us. If we shift our approach, it has to be shifted state by state right, because the laws would vary by state.
Speaker 2:Right. And so when, when you, when we talk about putting it in legislation, absolutely. But that's why I prefer to begin with these kinds of conversations, because when, when people are talking about it and they understand it better, maybe we don't need a law. I do think I don't know the exact verbiage, I don't have a standardized one but I've certainly started to think about how could we amend the current self-defense laws so that it considers context. You know, in domestic violence we have started to add legislation and laws that allow for context to be more admissible, a history of domestic violence to be admissible when you're prosecuting an abuser. So I think something similar needs to come into play, not only in the self-defense laws but, frankly, in the investigations, because, again, if they're not investigating self-defense, you're still going to get arrested.
Speaker 2:You might have a more plausible quote. You know legal defense in court, but I'd much prefer again for it not to have to be in legislation. But I had started to kind of rumble around in my head like how would we change the self-defense laws? But I think having these conversations is that first step. You want people to like, oh, I did do that. Oh, okay, how do I do that differently? And then come to look for people who have expertise in this, to kind of expand the current definition as it already is written in laws.
Speaker 2:I don't have to wait two years. You know I don't have to wait five legislative sessions. I want to be able to start to put things in action and once we put them into action we see what works and what needs to actually be changed through legislation.
Speaker 1:I agree with that and way back in the beginning of this conversation about an hour ago, I was kind of thinking along those same lines of gosh is there even time to drag in the context of every personal relationship when you're in one of these trials, because there's just so many of them and there's so many details to be considered? But clearly it is. There needs to be the time and the context needs to be provided, because somebody's life obviously depends on the outcome of that conversation and that evidence.
Speaker 2:And I have some tangible things. So, before you try to track me down and call me for help on these cases, here is the approach that I usually use to unpack them and it's the same approach I used I use when you have a staged homicide stage to look like a suicide, but it's really an IPV homicide and that is looking outside the incident. And so I like to use things that I already know exist in our evidence base. So here are the things that I would do if, whether you're an investigator or prosecutor, a defense attorney or a mother of someone who might be charged or is charged with one of these crimes and that is, we must establish there is an abusive relationship, and we have tools to do that. We know the power and control wheel is a wonderful resource. You can go to the National Domestic Violence Hotline. You can Google power and control wheel. It will identify and help a victim unpack and identify the abuse outside the physical violence. It's very easy to say and I see these in the investigations well, had he physically been violent? Well, a lot of the times they have. In my case earlier this year, there wasn't a lot of physical violence, but you know what there was a lot of is all the other types of abuse. So, using the power and control wheel, using in particular the post separation power and control wheel, right, those tactics shifts. And then the other component is I look up the danger assessment, it's free, it's online Any of these lethality indicators we know what lethality assessments do is they identify the risk the survivor is in in this escalating towards homicide.
Speaker 2:We know abusers don't just out of usually nowhere, kill. They are trying to regain control. When they lose control, they escalate and when they can no longer gain or regain control, they terminate and that's killing. And that's usually what we see, leading up to a victim having to use deadly force or any force in these cases. And so once I've established it's abusive, by pulling out these different dynamics, the you know, the spiritual abuse, the, the isolation tactics, the ways they use the children, the animals, economic abuse that establishes the relationship itself is abusive.
Speaker 2:Then I look to things like the danger assessment, well, the Audi assessment, to say, okay, was this abuse heading towards deadly force, whether it's lethal or near lethal violence? And that's where things like has he strangled you, is she pregnant and has he, does he have access to a firearm, these indicators that we know literally predict domestic violence, homicide, and I use that to say, look, it was escalating. You know, and I would say the number one red flag you can look at is was she? Was she trying to leave, or did he have a perception or believe, or was she cheating or did he think she was cheating? Those, I would say, are the two huge red flags that usually result in escalation. So those are already established tools. Every advocate at your domestic violence shelters will know how to use them. So start there and then I organize it out here.
Speaker 2:The different types of abuse here the love Audi, and that is kind of the formula I have started to use to navigate these cases. And then, obviously, understanding trauma, fear, doing a trauma informed interview. I don't see that that done a lot. And these are women who have experienced horrible trauma in so many different directions that it can be hard for them to articulate or even know what it is they need to articulate. So helping them understand what abuse is so they can identify it, can be an overwhelming process for even them.
Speaker 2:I know in the preparation for Tyesha's trial I don't know that I've ever seen or experienced or worked with someone as traumatized as she was. We could barely get through a sentence without dry heaving in hyperventilation throughout that trial and even preparation period. The amount of I mean I had the soft blanket, we had essential oils, we were doing grounding techniques. I mean I was literally cross-examining witnesses while I was like patting and had essential oils and like it was a lot, and you know that's why we need support people as well. So when you mentioned, do they bring in advocates the interviews, I wish they did, because we have people who can do that. So that's kind of the formula that I would encourage people to use. And if there are defense attorneys or prosecutors listening right, go pull those resources, educate yourself on them there's tons of trainings on them and start to apply that formula to these cases because they can be difficult to assess when you're looking at your traditional like blood versus not blood.
Speaker 1:Excellent advice, as always. Kelsey, thank you for talking with me today. Thank you very much. Attention Spanish-speaking listeners. Listen to the end of this podcast for information on how to reach a Spanish-speaking representative of Genesis.
Speaker 1:If you or someone you know is in an abusive relationship, you can get help or give help at genesisshelterorg or by calling or texting our 24-7 crisis hotline team at 214-946-HELP 214-946-4357. Bilingual services at Genesis include text phone call, clinical counseling, legal services, advocacy and more. Call or text us for more information. Donations to support women and children escaping domestic violence are always needed. Learn more at genesisshelterorg. Thanks for joining us and reminding you always that ending domestic violence begins when we believe her Genesis.
Speaker 3:el podcast anuncia servicios bilingües disponibles en genesis women's shelter y support. Si usted o una conocida este en una relación abusiva, puede recibir ayuda o dar ayuda a genesisshelterorg, o por llamar o mandar mensaje de texto a nuestra línea de crisis de 24 horas al 214-946-4357. Servicios bilingües de genesis incluyen mensajes de texto, llamadas, consejería, servicios legales, asesoría y más. Llámenos o mándenos un text para más información. Siempre se necesitan donaciones para apoyar a las mujeres o a los niños escapando de la violencia doméstica. Aprende más a nuestra página de internet en genesisshelterorg. Gracias por unirse con nosotros. Recuerden que el terminar la violencia doméstica empiece cuando creemos a la víctima.