Page 2
When defendants are taped calling their victims from jail and threatening to harm them if they go forward, the forfeiture by wrongdoing is readily apparent. But often the defendant engages in post-arrest abuse or intimidation without stating an explicit intent to keep his victim from testifying. His purpose must be inferred from his actions, such as an overwhelming number of phone calls made from jail to the victim in which he sweet-talks her about wanting to be together again.
Most often, whether or not the abuser has post-charge contact with the victim, the years of violence have left her too traumatized or frightened or overwhelmed by the effects of battering to testify. Moreover, a battered woman's understanding of what constitutes a threat may make no sense to an outside observer. As the California Court of Appeals observed:
"Battered women…may perceive danger and imminence differently from men…A subtle gesture or a new method of abuse, insignificant to another person, may create a reasonable fear in a battered woman."
— People v. Romero, 26 Cal. App. 4th 315, 26 Cal. App. 315, 13 Cal Rptr.2d 332, 336 n. 6 (Cal. Ct. App. 1992) at n. 6. (quoting Crocker, The Meaning of Equality for Battered Women Who Kill Men in Self Defense 8 Harvard Women's L.J. 121 (1985).)
For example, a woman trying to break with her abuser tells him to have no contact with her and obtains an order of protection. A few days later a florist delivers to her workplace a bouquet of roses with a loving card from her abuser. An outsider sees a simple gift of flowers, but in fact this is stalking. The woman rightly understands this as a message from the abuser that she is wrong to think she can escape him and that going forward with her case is a very dangerous idea.
See Andrew King-Reis, Forfeiture by Wrongdoing: A Panacea for Victimless Domestic Violence Prosecutions, 39 Creighton Law Review 441 (2006).
