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Auditing How Domestic Violence Cases are Handled by the Honolulu Police Department and Prosecuting Attorney Requires Patience
By Edwin Young

INTRODUCTION

According to the Department of Justice’s Office of Violence Against Women (OVW), domestic violence can happen to anyone regardless of race, age, sexual orientation, religion, or gender. Domestic violence affects people of all socioeconomic backgrounds and education levels. Domestic violence occurs in both opposite-sex and same-sex relationships and can happen to intimate partners who are married, living together, or dating. OVW states domestic violence is a widespread community problem that compromises the safety of thousands of families and can have tragic, destructive, and sometimes fatal consequences.
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The National District Attorneys Association (NDAA), representing America’s local prosecutors, reaffirmed that domestic violence is a serious and pervasive criminal and public health issue with devastating consequences for both the victims and society. The NDAA called for aggressive prosecution of all domestic violence cases whether they were charged as misdemeanors or felonies to prevent the escalation of violence.

Domestic violence not only affects those who are abused, but also has a substantial effect on family members, friends, coworkers, other witnesses, and the community at large. Children, who grow up witnessing domestic violence, are among those seriously affected by this crime. Frequent exposure to violence in the home not only predisposes children to numerous social and psychological problems, but also teaches them that violence is a normal way of life, therefore, increasing their risk of becoming society’s next generation of victims and abusers.

Between 2008 and 2012, the Hawai'i Department of the Attorney General reported 38.7% of murders committed in the state were domestic violence related and made up a significant portion of violent crime.


HAWAII ACTIONS TO REDUCE DOMESTIC VIOLENCE FAILED

The Hawaii Revised Statutes prescribed penalties for domestic violence incidents as follows:

  • First Offense is a misdemeanor: abuse of a family or household member and refusal to comply with a lawful order of a police officer are misdemeanors. The sentence for the first offense is a minimum jail sentence of 48 hours.
  • Second Offense subject to jail: For a second offense within one year of the first conviction, the person is termed a repeat offender and will serve a minimum jail sentence of 30 days.
  • Third Offense is a felony: For a third or any subsequent offense that occurs within two years of a second or subsequent conviction, the offense is a Class C felony. A Class C felony also applies to physical abuse of the family or household member by strangulation.

In 2014, the Hawaii Revised Statutes were amended to classify abuse in the presence of a child under 14 years old as a felony. The law did not result in significantly reducing domestic violence cases. Instead, the amendment increased police and prosecuting attorney workload by 79% (from 263 total cases in CY 2013 to 471 cases in CY 2016). Less than 14% of the felony domestic violence incidents were accepted for prosecution. As a result, most domestic violence victims did not have their day in court.

This occurred for several reasons: (1) domestic violence is not clearly defined and the laws are difficult to prosecute; (2) victims are unwilling to testify or were reluctant to appear in court; and (3) the police and prosecuting attorney lifecycle for domestic violence incidents frequently resulted in reclassifications and decisions that reduced the possibility of prosecuting domestic violence offenders.

We found the police and prosecuting attorney offices had a plethora of data and information systems that allowed them to track, monitor, and manage domestic violence cases. The entities, however, lacked common definitions, processes, procedures, and reports that facilitated sharing data and therefore could not successfully monitor and process most domestic violence cases. The lack of formal prosecuting attorney administrative processes and procedures, reliance on informal guides, and the judicial and trial processes compounded the difficulties of successfully prosecuting domestic violence cases.
   

DOMESTIC VIOLENCE TERMS ARE NOT CLEARLY DEFINED

Domestic violence is a generic term that includes a multitude of potential felonies and misdemeanors1. The process of investigating and prosecuting such cases is so complex that the final charges may change over the lifecycle of developing a case and bringing the defendant to trial. For example, a felony may be downgraded to a misdemeanor based on the evidence accumulated, or as a result of plea bargaining.

Inconsistent definitions for domestic violence complicate the handling of domestic violence cases. For example, domestic violence is a designation given to certain crimes where the victim and suspect share a specific relationship such as a current or prior spouse; a current or prior dating relationship; current or prior cohabitation; children in common; parents, children, or blood relatives; or persons jointly residing or formerly residing in the same dwelling unit.

Domestic violence may also include an assortment of categories as shown below.

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Lacking common definitions and categories, we found miscommunications between police and prosecuting attorneys and problems tracking and monitoring domestic violence cases from occurrence to final disposition.


ROLES, RESPONSIBILITIES AND PROCESSES DO NOT FACILITATE SUCCESSFUL PROSECUTION OF CASES

In Honolulu, the Honolulu Police Department (HPD) responds to domestic violence incidents, investigates and classifies incident reports, and refers felonies and misdemeanor cases to the Department of the Prosecuting Attorney. In FY 2016, the HPD had 2,694 full time equivalents and a budget of $262 million. The HPD Criminal Investigative Division (CID) had 14 officers and detectives to investigate domestic violence cases, felonies, misdemeanors, murder, robbery, sexual assault, and other family violence cases.

The flowchart below illustrates some of the complexities in the processes.

Domestic Violence Incident: Generic Workflow and Process

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Source: Office of the City Auditor and Honolulu Police Department


In FY 2016, the Department of the Prosecuting Attorney, had 303 full-time equivalents; a budget of $21.5 million; and represented the people in criminal proceedings in district, circuit, and family courts. Within the Prosecuting Division, there were 6 attorneys assigned to domestic violence felony cases and 4 attorneys assigned to misdemeanor domestic violence cases.

The police look for “probable cause” to justify continuing an investigation. After the police complete its investigations, the domestic violence felony cases are referred to the prosecuting attorneys who have several options, including accepting, reclassifying, or declining to accept for prosecution the police domestic violence cases.

In contrast to the police, prosecutors look for “conviction beyond a reasonable doubt” before accepting a case and taking the case to trial. If further police investigation is needed or the case is not accepted, the prosecuting attorneys will classify the case as “pending follow-up”; may decline the police referral; or may decline a case due to insufficient evidence to substantiate the charge.

The lack of common purposes and definitions affected communications. For example, the terms “charged, conferred, and referred” have different meanings for the police and the prosecuting attorney. In addition, the prosecuting attorney does not allow victims to “drop” cases. Under its “no drop” policy, the prosecuting attorney will pursue charges if the case can be proven beyond a reasonable doubt even if the victim asks for the incident to be dropped. The different meanings impeded monitoring and tracking cases.

For example, our data showed the police domestic violence workload for abuse in the presence of a child less than 14 years old increased from 0 cases in CY 2013 to 462 cases in CY 2016. During the same period, the number of cases referred to the prosecuting attorney increased from 0 cases in CY 2013 to 288 cases in CY 2016. Despite the workload increases, the results were not significant. More specifically, over 53% of the domestic violence felony cases were downgraded or reclassified as misdemeanors and less than 14% of the felony domestic violence cases were accepted and charged as felonies by the prosecuting attorneys between CY 2014 to CY 2016.


THE JUDICIAL SYSTEM IS MISUSED TO AVOID PROSECUTION

The independent State of Hawai‘i judicial system consists of the state Supreme Court, the Intermediate Court of Appeals, Circuit Courts, District Courts, Family Courts, and four other types of courts. Domestic violence cases are tried under the Family Court system which includes family district courts for misdemeanor cases and family circuit courts for felony cases. The family circuit courts use juries to try felony domestic violence cases. Misdemeanor domestic violence defendants may be tried without a jury or, upon request, by jury. Most misdemeanor domestic violence cases are tried in one of three court rooms in downtown Honolulu.

The overall judicial system is very complex and can result in unexpected outcomes for prosecutors. For example, if the judge finds no probable cause that the defendant committed the offense, the prosecution ends. If the judge finds probable cause, the defendant is arraigned and enters a plea in Family Court. If the defendant waives a jury trial or the charge is a petty misdemeanor, the case is tried in Family District Court. If the suspect demands a jury trial, the arraignment, plea, and trial is held in Family Circuit Court. If the case is a felony, the defendant is also arraigned and enters a plea in Family Circuit Court.

Public defenders or defendants may ask for a jury trial and use the request to forestall the court deliberations, avoid being prosecuted, or to have more time to prepare their defense.

Hawaii’s Speedy Trial rule (Rule 48 of the Hawaii Rules of Penal Procedures) allow the defendant to request dismissal of a domestic violence case if the trial is not started within 6 months from the date of arrest, re-arrest, refiling of a charge, or mistrial. If the case does not commence within 180 days, the case may be dismissed. If the domestic violence victim shows up in court, the defendant may request a continuance to delay the court trial. Victims are often reluctant to confront their abuser and, after a few continuances, may fail to show up in court. By using these delay tactics, defendants have successfully had their cases dismissed. In the latest data available, 186 cases (over 40%) of the domestic violence misdemeanor trials and cases were dismissed under Rule 48.


RECOMMENDATIONS

We made recommendations to ensure that domestic violence cases are handled, processed, and investigated in an economical, efficient, and effective manner. We recommended that the police and prosecutors reduce their workload, develop complementary processes, share collected data, and use consistent definitions and terms. We also recommended that the police and prosecutors allow read access to their respective information systems so that non-sensitive data can be shared and that the police centralize temporary restraining orders. The report is found at http://www.honolulu.gov/rep/site/oca/oca_docs/DV_Final_Report_060817.pdf.


ABOUT THE AUTHOR

Edwin Young has a bachelor degree from the University of Hawaii, a masters in finance from the University of Utah, and a masters in information systems analysis from the University of Southern California. His certifications include CIA, CFE, CGFM, and CRMA, and citations in several Who’s Who publications.