The state Office of the Chief Public Defender plans to again seek legislation next year that would require defense attorneys to have access to reports on defendants charged in domestic violence cases.
Right now, only prosecutors and judges have access to those reports, even if a domestic violence call resulted in a so-called dual arrest of both an abuser and a victim. In these instances, a person who was a victim of domestic violence, but also arrested, has no access to information or statements made by their abuser.
“The criminal process requires due process,” said the state’s Chief Public Defender Christine Rapillo. “If the accused is in court and everyone else in court has the report, that’s not due process. These reports are handed to prosecutors and judges. A lot of times the information in the reports is being read to the defendant in court. That’s not fair, there is no ability to respond. It’s not supposed to be an ambush; it’s supposed to be a level playing field.”
But providers of domestic violence services are concerned about an unintended consequence. They say the release of the reports to defense counsel could intimidate victims from telling their stories to court officials and embolden abusers, who would then know what their accusers told authorities.
“I think there’s a huge issue that you would be discouraging victims from using their voice to talk about the trauma they have suffered,” said Geralyn O’Neil-Wild, director of legal advocacy for the Connecticut Coalition Against Domestic Violence.
Advocates also worry that the defendant or the defendant’s family members could use portions of a report against the victim or ask the victim to recant portions as a criminal case moves forward, Meghan Scanlon, CEO of CCADV, said.
“There is a power and control dynamic happening that doesn’t go away because they are arrested,” Scanlon said.
The reports are crafted by judicial branch family services staff after a defendant has been arrested on domestic violence charges but before the accused appears in court for arraignment. They include an assessment of the defendant’s likelihood of future violence and review of what programs may be appropriate to help reduce or stop the abuse, according to the judicial branch website. The family services division also provides pre-trial supervision to defendants to make sure they are complying with any conditions ordered by the court, the website said.
A court victim advocate who is working with the victim may provide input for the assessment and victims are asked what level of protective order they feel they will need to remain safe, O’Neil-Wild said.
“The victim may share information about a history of abuse in the relationship with advocates and then choose to share that with Family Services,” O’Neil-Wild said.
Domestic violence cases are the only type of case where evidence brought before a judge is allowed to be withheld from the defense, Rapillo said. Public defenders have long been concerned that defendants cannot adequately defend themselves from charges without access to the reports, Rapillo said.
That holds true of women who are victims of abuse but also arrested after a domestic violence incident, Rapillo said. “That would mean they also get no access to their own report, even though they are victims,” Rapillo said. “I believe in this case, neither party gets access to their own report.”
During the 2021 legislative session Rapillo asked legislators to include the distribution of the reports to defense attorneys in proposed domestic violence legislation. But the language was never included in a package of domestic violence reforms that is now law.
If there is sensitive information that could create a safety issue for the victim, the report, or portions of the report, could be placed under a protective order by a judge, much like a sealing order, Rapillo said. “Maybe the order could be that the defense attorney can’t show the report to their client,” she said. “There are ways to keep people safe without denying due process in family violence cases.”
CCADV is concerned that providing the reports to defendants will have a chilling effect on victims who will fear relaying what happened during an incident or in the relationship. “They won’t be willing to share that information,” Scanlon said. “And it’s not just that, it’s their safety and the immediate risk factors in some of these individual cases.”