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  • Failure to Protect
  • Volume 12 | Fall 2008

case updates

The following are summaries of reported decisions involving domestic violence that we hope will be useful to practitioners. They are organized by topic. If you know of recent reported decisions that you would like to be included in future eNewsletters please send them to Rebecca Henry at Rebecca.Henry@americanbar.org.



People v. Sandoval

Holding: The California Appellate court affirmed the trial court’s decision to exclude expert testimony on marital relations and sexual behavior because the offered testimony would not have given the jury any additional understanding of the main issues at trial: “make-up” consensual sex or the defendant’s credibility.

Summary: A jury convicted Sandoval (defendant) of multiple claims including corporal injury to a spouse and spousal rape with force of his ex-wife (plaintiff; represented by the State). During the case before the trial court, the defense offered as a witness, Deborah Davis, an expert on marital relationships and sex. After cross-examination, it was determined that Ms. Davis had never qualified to testify in court on that topic and that she was not going to reach any conclusions for herself, simply aid the jury in reaching their own conclusions. Ms. Davis had never interviewed the defendant or the victim. The trial court excluded her testimony because the proffered testimony was neither beyond the jury’s own knowledge nor relevant to any defense. Sandoval argued that the trial court prejudicially erred in this exclusion.

The Court of Appeals affirmed the lower court’s decision. They rejected the defendant’s argument comparing Ms. Davis’ argument on marital relationships and sex to expert testimony on Child Sexual Abuse Accommodation Syndrome (CSAAS) testimony. Expert testimony on CSAAS is permitted where the witness has special knowledge or is related to a subject sufficiently beyond common experience. Also, expert testimony is permitted if the testimony is to “rehabilitate” the molestation victim’s credibility when the defense suggests that the child’s behavior after the incident is inconsistent with his or her accusatory testimony.

The appellate court held that Davis’ testimony wouldn’t be provided to rehabilitate the ex-wife; rather the purpose was to explain her consent and support her recanting at trial. Additionally, the suggested evidence didn’t relate to any behavior of the ex-wife before the defendant’s criminal conduct which was inconsistent with the crime. Lastly, the defense had not presented any myths or misconceptions that the jury held which would need to have been addressed. Since the expert testimony would not have helped the jury in understanding “make-up” consensual sex or determining the ex-wife’s credibility, there was no need for expert testimony.

State v. Bryan
190 P.3d 470 (Or. App. 2008)

Holding: The Oregon Court of Appeals held the defendant was properly convicted of witness tampering, although the victim was not subpoenaed to testify, because the word “witness” was not limited to a person who testified or been subpoenaed to testify, but also included a person whose testimony would be given in the future.

Summary: Edward Bryan Jr. was arrested for sexually abusing his girlfriend’s daughter. While in custody, he called his girlfriend multiple times stating that the victim was not permitted to play with his video games or receive the Christmas gifts he bought, and that the victim would end up in a foster home if she continued with her allegations. During the fourth call, the defendant spoke with the victim, who had already testified before a grand jury to the allegations of sexual abuse. The state charged Bryan with four counts of witness tampering, one for each phone call. Bryan argued that the state failed to prove the witness tampering charges by failing to prove that that the victim was a witness at the time of the first three phone calls.

The court rejected the defense’s claim and held the term “witness” was not limited to a person who testified or been subpoenaed to testify. The court noted that there was not any language in the statute which addressed a subpoena. Additionally, the court held that the definition of witness should be expanded to include a person whose testimony would be given in the future. The court held that the victim was a witness at the time of the phone calls. Bryan had placed those calls after he had been arrested and taken into custody based upon the victim’s report of sexual abuse. Lastly, the court concluded that because the victim had voluntarily agreed to testify without the need of a subpoena, the same protections should be extended as if the victim had been subpoenaed. The trial court’s decision was affirmed.

In re K.W.
--- N.C. App.---, No. COA08-535 (Sept. 16, 2008) – Unpublished Opinion

Holding: The North Carolina Court of Appeals held that evidence from a MySpace page was admissible if it assisted in impeaching the petitioner’s contradictory trial testimony.

Summary: In 2006, K.W., a 13-year old female notified her school counselor that she was being raped by her father, A.W. . The counselor called the police and K.W. provided a statement accusing her father of raping her multiple times since 2005. Youth and Family Services (YFS) became involved in the case. On the same day, A.W. signed a safety assessment plan where he agreed to stop all contact with his daughter. K.W. testified that her father moved back home one week after signing the assessment plan document. A month later, a doctor examined K.W. and concluded that her physical condition reflected child sexual abuse (and she had a hymeneal infection). YFS filed a juvenile petition alleging abuse and neglect and obtained an immediate non-secure custody order. After the hearing, the trial court entered an order adjudicating K.W. as abused and neglected. A.W. appealed the adjudication on the grounds that evidence was improperly excluded.

A.W. argued that the trial court erred in refusing to admit into evidence parts of the petitioner’s MySpace website. Rule 412, also known as the exception to the rape shield law, permitted the court to include information about a plaintiff’s prior sexual behavior only under certain circumstances. This exception would be allowed as evidence of sexual behavior of a complainant if the evidence provided that the acts charged were not committed by the defendant. The MySpace page contained suggestive photos of the petitioner which she captioned that she “may not be a virgin, but still gotta innocent face.” Additionally, the response “yes” was entered as the reply to the question if she had sex. K.W. stated that the website was hers, but a friend entered the answers. The petitioner also asserted that during the time her father was raping her, she did not have any boyfriends whom she was intimate with or had dated.
A.W. claimed this evidence should have been admissible for two purposes. One was to establish that someone else could have caused the hymeneal infection found by the examining physician. The second would be to impeach A.W.'s testimony.

The court held that the MySpace page made no reference to any specific instances of sexual behavior by K.W., or when the behavior occurred. The court rejected the child’s explanation that her friend filled in the answers on her MySpace page and found that the trial court should have deemed the page admissible to impeach her contradictory trial testimony.  Yet, the court found that the website would not have been substantive evidence of another person causing the trauma. Therefore the appellate court concluded that the error was harmless and affirmed the trial court's ruling.


Abbott v. Abbott
542 F.3d 1081 (5th Ct. 2008)

Holding: A noncustodial parent’s authority to veto his or her child’s removal from their country of residence does not equate to “rights of custody” under the Hague child abduction convention. The noncustodial parent only has to have right to access, not right to custody at the time of removal.

Summary: Timothy Abbott (petitioner) is a British citizen and Jacquelyn Abbott (respondent) is a U.S. citizen. The parties married in England, had a child and all settled in Chile to live. In 2003, while living in Chile, the couple divorced, with Jacquelyn awarded custody and Timothy awarded visitation rights. In 2004, at the request of the respondent, the Chilean court entered a fourth order prohibiting the child's removal from Chile by either the father or the mother without their mutual consent. In 2005, during visitation disputes, Jacquelyn took the child and left Chile without the consent of the father. Timothy hired a private investigator and found his son residing in Texas.

Timothy Abbott then filed a petition under the Hague Convention on the Civil Aspects of International Child Abduction for the return of his son to Chile. Timothy alleged the child’s removal was a breach of his “rights of custody” under the convention. The court held that the father only had rights to visitation and access, not custody. Although they did not condone the respondent’s behavior, the Hague convention does not provide a remedy ordering the child’s return to Chile.

This was a case of first impression in the Fifth Circuit. Other circuits were split on the matter, three (the Fourth, Ninth and Second) having determined that the orders do not create rights of custody, and one (the Eleventh) holding that they do create such rights.

In re Application of Adan
544 F.3d 542, (N.J. 2008)

Holding:  A noncustodial parent’s authority to veto his or her child’s removal from their country of residence does not equate to “rights of custody” under the Hague child abduction convention.  Ruling from the bench, the Third Circuit reversed orders for the return of a child to Argentina pursuant to the Hague convention and remanded the case to the district court with instructions that the Hague petition be immediately dismissed.

Summary: The respondent, Elena Avans, was born in Argentina, but is a naturalized U.S. citizen. She returned to Argentina and met Ariel Adan (petitioner). The parties began dating and respondent became pregnant. In 2000, both individuals began living in New Jersey, where their daughter, Arianna, was born. Later that year, the entire family returned to Argentina. 

Between 2002 and 2003, while living in Argentina, the couple separated and reunited multiple times. In 2003, Avans went to family court alleging that the petitioner was harassing her and sexually abusing their daughter, Arianna. She was issued a restraining order and a hearing set for March. However, on January 28, 2004 the mother brought the child to the United States without the consent of the father.

In 2004, Ariel Adan filed a petition under the Hague Convention on the Civil Aspects of International Child Abduction for the return of his daughter, Arianna, to Argentina. The court held that the father did have “rights of custody.”  Despite evidence supporting the claim of the father being abusive, the district court granted Adan’s petition under the Hague Convention on International Child Abduction and ordered that the child be returned to Argentina.

During the first appeal, the Third Circuit vacated the order and remanded for a fuller hearing, because there was not clear and convincing evidence regarding legal custody of the child. If the father’s rights were restricted to only visitation, those may not be enforced by seeking to have the child returned to Argentina. Additionally, the Court held that the district court did not adequately determine whether the child was subject to a grave risk of harm if returned to Argentina. Therefore the child was ordered to be returned and serve as a ward-of-the-state until a fuller hearing was held by Argentine courts.

In the second appeal, the appellate court obtained a report from the Department of Youth and Family Services stating the specific physical and psychological risks posed if Arianna returned to Argentina. The judges also performed direct questioning of the father’s attorney regarding the matter of whether a grave risk of harm existed. Based upon the evidence, the court concluded that there was sufficient evidence of a grave risk of harm in this case and denied the father’s petition.


Dobos v. Dobos
2008 Ohio 5665, 2008 Ohio App. LEXIS 4760 (Ohio Ct. App. 2008)

Holding: The Ohio Court of Appeals reversed the trial court decision denying a woman a Civil Protection Order after she and her children escaped to the United States from Hungary to avoid further domestic violence from her husband. The appellate court held that threatening phone calls from the husband in another country could potentially be sufficient to establish minimum contact, and vacated the trial court’s decision and remanded it back for an evidentiary hearing and test for jurisdiction.

Summary: In 1999, Jennifer Dobos (petitioner) and Sandor Dobos (respondent) were married in Hungary. They had two children, one born in Hungary and the other born in Ohio. In 2001, the couple moved to Ohio until 2004, when they returned to Hungary. In 2007, the petitioner returned to Ohio with her children and filed a petition for a protection order. She alleged physical and emotional abuse by her husband in front of their children.

After Jennifer sought medical treatment for her bruised, swollen, and battered body parts, she tried to get protection from her husband via Hungarian officials. Yet, without tangible proof of broken bones or puncture wounds, she was turned away because it is not against Hungarian law to have abuse absent such injuries. The petitioner returned to the respondent to accumulate the necessary passports and plane tickets to be able to return to Ohio, where she filed for a civil protection order.

A magistrate, after listening oral arguments on the jurisdictional issue but not holding an evidentiary hearing related to the domestic violence, dismissed the petitioner’s request for a CPO due to lack of personal jurisdiction. The magistrate held that Sandor did not have minimum contact with Ohio because the abuse occurred in Hungary, not Ohio. The court could not have jurisdiction over the matter simply because the petitioner fled to Ohio. Additionally, because Hungary was over 6,000 miles away, Jennifer’s claim that there was an immediate and present danger by her husband was held untrue. This decision was signed by the trial court.

On appeal, the court held that an evidentiary hearing should have been performed to determine whether long-arm jurisdiction was present and whether minimum contact necessary to satisfy due process existed. As a result, the court concluded that the magistrate failed to examine how the husband’s phone calls or her fear of him possibly coming to Ohio could reasonably put the petitioner and her children in fear of imminent harm. The appellate court felt that the threatening phone calls from Sandor were sufficient to establish minimum contact, and the location of Hungary wasn’t dispositive of the issue. Additionally, without an evidentiary hearing the court could not determine whether extending jurisdiction over the husband would comply with fair play and substantial justice.


Danny v. Laidlaw Transit Servs., Inc.
193 P.2d 128 (Wash. 2008)

Holding: The Washington State Supreme court held that employers cannot fire domestic violence victims who take time off of work to protect themselves and their children (i.e. attend criminal proceedings; move into a shelter; obtain a protection order; and obtain assistance in getting a divorce).

Summary: Laidlaw Transit Services, Inc. (defendant) hired Ramona Danny (plaintiff) in 1997. In 2002, the plaintiff was promoted to scheduling manager. While at Laidlaw, Ms. Danny and her five children experienced ongoing domestic abuse from her husband. The plaintiff had to move out of her home after one particularly violent episode, but leave her children behind. She had also reported the abuse to her project manager at her job. In 2003, Ms. Danny requested leave to move her children from the abusive situation at home. The project manager initially refused the request because plaintiff was responsible for and working on a large project with a looming deadline for the defendant’s largest subcontractor. However, her request for a two-week leave was granted after a serious domestic violence incident in which her ex-husband beat their 13-year old son, who then required hospitalization. During this time period, Ms. Danny cared for her son; attended criminal proceedings against her husband; moved into a battered woman’s housing program; obtained a protection order; and began divorce proceedings. When the petitioner returned to her job, she learned that the respondent had demoted her for her time taken. After Ms. Danny filed a discrimination claim with the Seattle Human Rights Commission in May 2005 to protest her demotion, she was fired.

The district court asked the Washington Supreme Court to issue a ruling to determine whether Washington state had clearly established a public policy prohibiting employers from firing an employee who takes leave from work to protect her and her family from domestic violence. The plaintiff argued that by acting to protect herself and children from her abuser, she performed an act of public duty and should not have been penalized. The plaintiff’s argument was that Executive Order 96-05 was Washington’s public policy statement addressing and governing issues related to domestic violence. Laidlaw argued that the executive order was not the proper source of public policy because it was not a statutory, constitutional or regulatory scheme.

The Supreme Court agreed with the plaintiff and held that employers should not be able to undermine the state’s wide-range of protections available for domestic violence victims. The court noted a need for many of the services domestic violence victims required to be performed during the daytime, during working hours. The court highlighted that as a matter of public policy, employees are allowed to obtain the services they need without fear of losing their economic independence. Furthermore, Ms. Danny’s testimony assisted in the creation of House Bill 2602, a law that gives all employees who are domestic violence, sexual assault, and stalking victims, the right to take reasonable leave from work to deal with the effects of these crimes and obtain safety.


Woods v. Shewry
Case No. 056072 (Cal. Ct. of Appeal 3d, Oct. 14, 2008)

Holding: The Court of Appeals held that California’s exclusion of men from domestic violence shelters violated men’s constitutional Equal Protection Rights. Therefore, California can no longer provide funding to women-only shelters, although the plaintiffs were not able to provide any compelling evidence that any California services discriminated against men beyond a declaration made by one of the defense’s witnesses.

Summary: California law made it illegal for the government or state agency (defendants) to discriminate on the basis of sex. Yet, the law had permitted an exception if the discrimination based upon sex would have an adverse affect on lawful programs that benefited one sex. Included in this exception was a California statute that funded domestic violence shelters, and which contained language defining domestic violence as an incident that only happens to women:

Domestic violence means the infliction or threat of physical harm against part or present adult or adolescent female intimate partners, and shall include physical, sexual, and psychological abuse against the woman…

Four men (three of whom were victims of domestic violence) and the daughter of one of the men (whose mother had abused her father) challenged several statutes which funded domestic violence shelters, on equal protection grounds. They argued that the defendants’ programs provided for assistance for women and their children, but not men and their children. They claimed that specific gender classification was unnecessary and gender-neutral alternatives were possible. However, the trial court concluded that the plaintiffs failed to prove that men and women were similarly situated to justify gender-neutral language.

The plaintiffs provided declarations from doctors and domestic violence expert testimony to prove that men were also victims of abuse and that women abuse men at the same rates that men abuse women. The defendants noted that several of the organizations cited who received state funding also provided services to men; that all recipients funded by the Office of Emergency Services provided services on a gender-neutral basis; that women needed shelter more than men; and that there were insufficient resources available for all domestic violence victims.

The appellate court reversed the trial court’s decision. They held that the gender-based classifications in the challenged statutes regarding programs for domestic violence victims violated equal protection for men. The court held that equal protection rights needed to be defined in term of individual rights and not men’s rights, as a group. Since the issue was one of individual rights, then the discrepancy in the number of male victims compared to female was insignificant.

Additionally, the court held the standard of review as strict scrutiny. The appellate court acknowledged that the plaintiffs had not provided compelling evidence that any California services had discriminated against men. Yet, the court concluded that male victims of domestic violence were similarly situated as female victims and there was not a compelling state interest that justified the gender classification. They overturned the trial court’s and Attorney General’s decisions and invalidated the statutory exclusion of men.

However, the court also highlighted that by changing the statutes to read as gender-neutral, it was not requiring that programs offer identical services to men and women. Due to the disparity in the number of women who require services and the severity of their injuries, it could be appropriate to provide more and different services to battered women and their children versus men and their children. An example would be a program which offered shelter for women, yet only hotel vouchers for men.


Christine Sandage, et al. v. Board of Commissioners of Vanderburgh County, et al
Case No. 08-1540 (CA7, Nov. 24, 2008)

Holding: The 7th Circuit Court of Appeals affirmed the dismissal of a woman's lawsuit against Vanderburgh County officials following the death of her daughter because there isn't a federal constitutional right to be protected by the government against private violence when the government isn't complicit.

Summary: Christine Sandage sued county officials after her daughter and two other people were murdered by Travis Moore, who was on work release at the time. Moore then killed himself. Moore had been serving a four-year sentence for robbery and was in the custody of the Vanderburgh County Sheriff's Department.

The federal appellate court affirmed the District Court's dismissal of the suit because there isn't a federal constitutional right for people to be protected by the government from private violence in which the government isn't associated with or participating in the violence. The 7th Circuit cited several cases to support its ruling, including Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir. 1982), and DeShaney v. Winnebago County Dept. of Social Services, 489 U.S. 189 (1989).