Immigrant Victims

I had a case once that involved a man who had arrived in the U.S. several years before his wife.  He arrived here after swimming the Rio Grande, worked hard, got amnesty under a federal program, and eventually was awarded with naturalized citizenship.  He opened a restaurant, and the American dream became his reality.  Eventually he held his hand out across the border to his wife, and she came to join him. 

            He began to beat her almost immediately, and this evidently continued through both pregnancies and past when the youngest child entered first grade.  The children had been born in America, so they held U.S. citizenship.  The husband had gained his citizenship.  Mom was the only “illegal” in the family, and he reminded her of that each and every day. 

He held this fact over her head constantly, often threatening that he would call Immigration officials if she didn’t obey him.  She was absolutely convinced that U.S. citizenship came with the extra benefit of direct access to federal law enforcement agents who were sitting around waiting for someone like her husband to call and inform on her. 

            This was especially terrifying because their children were U.S. citizens.  She knew that deportation meant they would be left at the mercy of a man she’d come to realize was monstrous.  Part of her decision to stay for as long as she had was her belief that her husband could have her sent out of the country on a whim, and that her children would become his next victims.  For years she chose to endure his physical and sexual assaults so that her children would not have to. 

            To make matters worse, he routinely sabotaged her efforts to gain citizenship herself, either by “losing” her paperwork, making anonymous calls that she was using illegal drugs to Immigration officials who were actually trying to help her, or simply refusing to take her to scheduled English classes and appointments.  He already controlled the pocket book, her ability to communicate with her friends and family, her transportation options, and then he added the wrinkle of controlling her very ability to stay in the same country with her children.  No wonder it took her so long to ask for help. 

During one episode he slammed her hand in a car door.  That incident was the first one ever witnessed by anyone outside their family, and it was the first time the police had ever been notified.  The person who dialed 911 from a pay phone refused to leave a name and left before we got there, so there were no witnesses, but the call helped in finally allowing a police agency to get involved. 

            I remember that she was absolutely terrified of all of us.  We were large, armed men with tremendous authority over her life right then, and she must have seen us as Gestapo.  Her husband kept yelling that he was going to have her deported, that she had spent her last night on American soil.  Her lips quivered, and her eyes stayed filled but not spilling for the first two hours. 

            She believed him, of course.  She had it in her head that American citizenship came with a secret pass or power to have others jailed and deported because he’d told her so many, many times.  She firmly believed that her husband, by all rights an extraordinary spirit for all that he’d overcome and accomplished, had friends in high places that were a phone call away from tearing her from their children.  He’d begun a pattern of abuse toward the boys of late, but she’d been able to distract him from them and get him to hit her instead for some time.  She shuddered imagining what would happen to them if she weren’t there to shield them from a man she’d come to accept as an abusive monster. 

            Truth was, I felt a little stuck.  The guy didn’t have the swing he’d convinced her he had, but he would definitely be able to make a phone call to federal immigration authorities once he bonded out of jail.  If he was successful in his plans, she’d be deported and there would be no witness to confront him at trial.  The charges would have to be dropped, and he’d reign supreme and unchallenged over two little boys.  This did not feel like justice. 

            That’s when I learned about the U-visa.  U-visas are a direct extension of the federal Violence Against Women Act of 1994.  Several strategies were employed under this act including more police officer training, more shelters and long-term housing for victims of domestic violence, and more funding for batterer’s intervention programs across the country.  The U-visa has turned out to be a nifty little idea designed to keep witnesses of violent or felony crimes in this country so that they can participate in removing hardened criminals from communities without having to worry about deportation. 

            The short version of how this works is that if an undocumented immigrant witnesses a serious crime, he or she has the opportunity to petition the U.S. government for the visa, which protects them from the deportation process during the length of the investigation and through prosecution.  For assisting in removing say, a drug dealer from the streets, a gang member, or a violent or sexual predator, they are then afforded a chance at staying in this country long enough to earn naturalized citizenship. 

            This is not instant citizenship, and the whole process can still take years, but it offers a real incentive for someone who is frightened and fed up to come forward and be offered a whole basket of protections.  Witnesses to crimes are already afforded police protection and protection under state and federal law, and now they can also be protected from removal from the country.  This is obviously good for them because they don’t have to hide or cringe every time they see a cop, and it is good for law enforcement because we keep a witness that will help us restore or maintain safe streets and homes. 

            The obvious crack in this plan is that some people might manufacture a witness statement for the sole purpose of initiating a U-visa application.  The only thing I can tell you is that there will always be flaws in a government bureaucracy, but this plan and process proves valuable time and time again.  Yes, some people might try to scam the system, but it would be a risky move to make up a story about felony crimes and hope it stuck all the way through the conviction phase, because any discovery of illegitimacy would likely result in criminal charges and rapid deportation.  Also, the victim advocates who generally make the referral tend to be very discerning in filing the U-visa applications and requesting the assistance of their local law enforcement agencies in completing the documentation.  Those advocates don’t want to be seen as sending undeserving applicants our way, so they are often more strict and hesitant to file than are we. 

            The forms are a little long and tedious.  Fortunately for us, law enforcement’s portion is short and simple.  We are asked to sign a document confirming that the applicant was an important part of our investigation, and that he or she cooperated fully with that investigation.  We then usually attach our police reports related to the matter and send it off for processing.  This is a good thing because law enforcement officers tend to have too many pieces of paper on their desks anyway, so something we can sign and move out in two minutes makes us happy. 

            Make no mistake; if you are a violent criminal, a sexual predator, a thief, or a drug dealer, I want you gone.  I want you in jail for your sentence and immediately deported afterwards.  I want to know everything about you, including what friends and family you have in the area so my colleagues and I can round you up even faster if you ever sneak back in our country.  I want Immigration officials to take a wife or child batterer as seriously as a member of an organized criminal conspiracy, and I want your life to be absolutely miserable while you scurry around in my country, trying to evade detection while preying on others. 

            However, if you’re a decent human being who somehow made it here from some other country in the simple hope of creating a better life for yourself or your children, I don’t want you to have to go about your day afraid of the police.  Yes, I want you to apply for documentation and be identified (just as we are through social security, taxes, driver’s licenses, etc.).  And, yes, I want you to go through the proper, admittedly long and bureaucratic process to earn citizenship here, just as I would if I were to choose to seek citizenship in another country.  My new home country deserves that respect and show of allegiance. 

Regardless of how or when you are identified, I want the message to be loud and clear that the police should and generally do recognize the difference between the severity of an undocumented worker and a drug dealer or a child molester.  You just can’t reasonably put them in the same category.  It would be like comparing a person speeding in her car to a person who steals cars.  If you want to get anywhere with the intricate, deeply entrenched problems associated with immigration, you have to start from a foundation of common sense and respect for the diverse human condition.  When you have that, you can participate in making sound, humane decisions that have the potential to improve individual lives, families, and entire communities. 

People who are afraid and being preyed upon need police assistance.  The alternative is for them to live in a form of slavery or to raise arms themselves in a form of vigilante justice.  Many street gangs around today were formed as a result of a need for greater protection coupled with a lack of faith in local police.  Neither of the alternatives is acceptable, so some mechanism for allowing oppressed people to come forward has to be allowed.  Currently a part of that mechanism can be realized through the U-visa program and through police agencies and officers able to exercise discretion when it comes to reaching for the greater good. 

Rape In The Home

Venus yields to caresses, not compulsion.

Publilius Syrus

There is perhaps no case more difficult to prosecute than that of domestic rape.  Convincing a jury of twelve people beyond a reasonable doubt that a man raped his wife is a high mountain to climb even in this twenty-first century.  Rape within intimate partners happens, though, and I suspect it happens far more often than we know.
Consider the fact that when you are talking about a domestic violence situation, you are always factoring in a significant level of power and control.  A man who beats his wife does so in order to manipulate and terrorize her.  The same can be said of rape in any context.  A man who attacks and rapes a woman on a jogging trail or during a home invasion does so out of little if any real interest in sex, and more out of a driving desire to control, degrade, and terrorize her.  The same is true for most of the invading hoards throughout history.  Raping and pillaging are synonymous with warfare, in part because victors get the spoils, but also because the victors have waged the war so that they can control another person or group and use the resources of that other party as they see fit.  Rape, whether it be done by a bloodied soldier berserk with the fact that he lived through the battle, a stranger who grabbed a person into the darkest foliage of a city park, or a man beating his wife and then prying her thighs open to impale her is all about control and violence.
Where the waters often get muddied is in the fact that marriage is generally assumed to involve some amount of sexual activity.  Yes, women empowerment has prospered at an astounding rate within my lifetime, but I think most would agree that there is in our culture some expectation that a wife have sex with her husband once in a while.  The truth is that many men and women truly believe that wives have an obligation to lay with their husbands periodically.  

How often this occurs is often a subject of negotiation or debate.  Who remembers the 1977 Woody Allen movie, Annie Hall in which Woody Allen’s character, Alvy Singer, and his wife’s character, Annie Hall, played by Diane Keaton are shown talking to their respective therapists on a split screen?  The two characters are asked how often they have sex with their spouse.  Alvy Singer replies, “Hardly ever…maybe three times a week.”  Annie Hall replies, “Constantly.  I’d say three times a week.”  

In those two lines, a whole culture’s take on spousal obligations and expectations is summed up hilariously, but I believe it is so funny because behind those lines there is a biting hint of the darkness and frustration inherent in many marriages.  If you watch just about any situation comedy on television nowadays in which married couples playfully joust for the camera and audience, there is almost always some continuing thread of a joke in which the husband tries to cajole the wife into more playtime in bed.  

However, any amusement one might find in the wheedling maneuvers for sex in movies or television turns quickly to something more related to a horror movie when the combination of “male entitlement,” driving power and control impulses, an already violent relationship, and a strong sexual impulse collide with a woman’s lack of desire and/or attempt to thwart her husband or boyfriend’s advances.  If you throw alcohol or drugs into the mix, a heated argument that he considers over but she does not, his intent to have “make up sex” and her firm resolve that he isn’t going to touch her yet, you have the natural science equivalent of a hungry bear whose trout was just stolen.  

Some of the worst attacks of a male on his wife or girlfriend I’ve ever investigated have involved some element of sex, either because he felt denied (and thus, disrespected) or because the ensuing rape was simply an extension of the battery itself.  Ironically, it is also one of the most under-reported crimes.  Often a victim will make a statement about the fact that she was threatened and beaten, but neglect to tell the part about how he forced her legs open and speared her vagina with his penis during the attack.  Clearly she didn’t want sex right then, and obviously it was forced.  That, by definition, is rape, but the act is infrequently reported due to embarrassment, a lack of knowledge that, yes, a wife can be raped by her husband, or simply because the investigating officer failed to ask.  

It’s important that police officers and medical staff members ask about sexual assault.  If there has been a domestic violence situation, and the violence occurred out of the eyesight of other witnesses, the question of rape needs to be broached at some point. This is a conversation held with a victim that must be done skillfully, sensitively, and thoroughly, but it should be explored any time there has been violence that was un-witnessed by others.  

If rape is alleged, in a domestic setting or otherwise, certain actions need to take place.  First and foremost, the victim needs to be seen by medical professionals and a sexual assault kit needs to be collected by a certified Sexual Assault Nurse Examiner (SANE).  It’s likely in a husband and wife scenario his DNA will be found within her vagina and other parts of her body.  His natural defense is that they had sex as husband and wife and, of course his DNA is going to be in there.  What should not be there, though, are wounds to her vagina and anal cavities, other bruises consistent with grabbing and holding, patterns of injuries associated with strangulation, heavy bruising on the buttocks and thighs from hard, repeated spankings, pulled out hair, and bite marks.  

Ah, but it was just “rough sex” he’ll say; trust me, that’s what he’ll say.  Weigh this statement with your own experience.  After sex, even playful rough sex, are you spent and satisfied, or do you get it into your head that you feel like calling the police and telling them what a violent jerk your partner is?  It doesn’t make sense that a woman who is lying in a hospital bed, sore and bleeding, telling a stranger, a police officer of all people, that her husband just beat and raped her if all that was involved was “rough sex.”  It is an insult to my intelligence and to good husbands and boyfriends everywhere that some controlling jerk damages this woman’s body and soul and then blames it on having a good time.  

There is another element of rape that often occurs during a false imprisonment incident.  In this situation a woman may choose to engage in sexual activity in order to calm a potentially violent situation or in order to negotiate her release from his custody in cases when he is refusing to let her go.  

False imprisonment generally happens when a guy realizes he’s gone too far.  He slapped his girlfriend around, and he suddenly realizes she’s mad enough to call the police this time.  He has to buy back some time, enough to be able to get her to forgive him.  What does he do?  He threatens to hurt her worse if she runs away or, in some cases, physically restrains her.  

In one case a gentleman strangled his girlfriend of three years after she found he had another “ex” girlfriend’s phone number in his cell phone.  She was miffed, and she let him know.  Then she told him she was going to call the other girlfriend and let her know he was dating both of them.  Guess what?  He didn’t like that idea, so he strangled her, broke her nose, and punched her in the area of her vagina.

She reached for her cell phone to call 911, and he ripped the phone into pieces.  She tried to make for the door, and he tackled her onto the couch--where he held her for the next eleven hours.  

Eleven hours of being held by a man who had made her nose and vagina bleed, made both of her eyes swell to the point of closing shut, her throat to hurt every time she swallowed.  Eleven hours of listening to him say how sorry he was and how it would never happen again if she’d just forgive him and, “Please, baby, please let me make love to you so I can show you how much I care about you.  Please baby…”

Eventually she gave in and, hell, what would you have done if you were in that much pain, and you couldn’t get away?  Within ten minutes of having sex with the man she walked out of his apartment under the bluff that she had to get to work.  She went to her mother’s, who got her medical care and then brought her right to the police station.  

In hostage negotiator’s lingo, she had successfully negotiated her own hostage release.   She got away and was able to get medical treatment and police assistance.  Of course, she had to get raped in order to get her freedom and safety back.  

The grim reality is that successful prosecutions in cases of rape involving husbands or live-in boyfriends are rare.  Almost all elements have to be in place: Outward signs of abuse, internal signs of vaginal trauma, a highly credible victim, and a confession from the husband; an unbiased witness wouldn’t hurt, either.  Without this nearly perfect package, it’s tough to get a lot of police officers and prosecutors to support an arrest warrant and prosecution.  Additionally, many defense attorneys will work to make her look like the smuttiest, most unfaithful, gold digging wife on the planet if she ever goes up on a witness stand.  You think rape trials are tough?  Imagine having one between two people going through a divorce.  

I lean in the direction of an aggressive arrest stance if reliable evidence is discovered to support the Victim’s allegations.  There are untold possibilities, and every case is different, but one example of a case supporting an arrest for rape would be if the victim is credible, she has clear signs of injury and bruising patterns consistent with being held against her will, and the suspect won’t give a statement.  

Yes, a suspect has the right to remain silent, and the fact that a man decides against making a statement to the police does not make him guilty.  However, if the Victim seems sincerely frightened, hurt and heartbroken, her statement is credible, and he offers no reply or evidence to refute her statement, a fair and impartial look at the facts at hand may well call for his arrest.  

That doesn’t imply that prosecution will be successful.  Again, a jury of twelve must be convinced that what an officers has arrested this man for really happened, and the fact that the husband or boyfriend exercised his Fifth Amendment right so as not to incriminate himself can’t be a sore subject at trial.  He did what he felt he needed to do; so did the victim, and so did the arresting officer.  

What value then is there to make an arrest if successful prosecution is going to be a gladiatorial fight to the finish?  First and foremost, the victimized woman knows that she was believed and that there are men and women who will stand with her through the whole process.  Having police officers, generally male police officers, care about her and protect her is empowering and uplifting.  The officers aren’t hurting her or emotionally assaulting her, they aren’t trying to have sex with her, and they ask nothing of her other than honesty and to follow their safety instructions.  Imagine having been a woman who has endured routine physical, emotional and sexual abuse coming in contact with a professional man wielding tremendous authority who focuses on her needs and safety.  In many cases, it is the first time in a woman’s adult life that someone has shown her she has value and is worthy of protection.  

Additionally, a solid arrest for rape may not make it all the way to trial, but it offers good leverage during any plea bargain stage.  Notice I said “solid” arrest.  Certainly police officers could tack on additional flimsy criminal offenses in any arrest situation in an attempt to manipulate a stiffer sentence later on down the road.  However, if the arrest charges are fair, and if they truly represent what the evidence is indicating, including a charge of rape has a way of allowing prosecutors to stand firm when it comes time to negotiating plea bargains.

Finally, a law enforcement community that shows they’ll aggressively pursue this type of crime gets a well-deserved reputation for being tough on known violent offenders.  That reputation can be an instrument of crime prevention as long as that tough-mindedness doesn’t extend into abusive practices.  I once worked a bank robbery case in which three men collaborated to hold up a little branch bank.  One of the men stated later that he’d tried in vain to talk his friends out of doing the deed.  During his statement he said, “I told them, you can’t rob a bank in this city.  Hell, they put you away for just slapping your girlfriend around here.  What do you think they’re going to do if we rob a bank?”  Alas, they robbed the bank anyway despite this man’s sage advice.  And, yes, we put them away.  

One fair word of caution:  An arrest for rape in any small to medium sized community is likely going to generate media exposure, bitterness and hatred between her family and friends and his, and it is definitely going to make for a long day on the witness stand for the victim.  She’ll be grilled by defense attorneys in a way that some feel is akin to being raped all over again, this time in public.  In short, ugly things happen when a rape arrest occurs, and it is only fair to discuss these issues with the victim before any action is taken; she needs to know what she’s getting into.  By the same token, this is the time when a lot of women become stronger than they’ve ever been before.  They get to participate in stopping a rapist from ever hurting another woman.  They have the support of an entire police department and prosecutorial team, victim advocates, medical and mental health professionals and, in many cases, a new lease on life.  The achievement of greatness doesn’t come without challenge, and this is one place in which a person who has lived life as a victim can surprise herself and everyone else by rising to the occasion and fighting back.  She should know she doesn’t have to do it alone.