For two years, Annamaria's estranged husband, Jorge, has been telephoning, emailing and texting her threatening to harm her and their son. He has told her that she is still his wife and he continually accuses her of having affairs with friends, colleagues, and strangers she meets in bars, all of which is untrue. There are no court orders in place as she has been afraid to take any action

Question

However, in one recent incident, her employer contacted the police and had Jorge arrested when he threatened a security guard who refused to let him in to see her at work. She begged her boss to not press charges because it would put her at risk. After Jorge was released, he accosted her in a supermarket parking lot and yelled and waved a gun at her and their son as they sat terrified in her locked car. Later that evening he tried to break into her apartment and she called the police. When she failed to appear at his arraignment or probable cause hearing the charges were dismissed.

A week later, Annamaria called 911 when he broke down the front door of her apartment and physically assaulted her in front of their son and then headed for the boy. When the police finally arrived, they again arrested him. She had a bloody nose, a black eye, and bruises on her arms and throat. The police took pictures and Annamaria was taken to the hospital where she was treated and released. Charges were filed but Annamaria told the prosecutor that she was too terrified to testify against Jorge. Both Annamaria and Jorge have contacted attorneys for advice. Jorge has told his attorney "if she thinks she is going to get away with this and embarrass me, she's crazy" and "She won't live to get a divorce or see me in prison." He says that he recently bought a gun and he laughs when he says he is "deadly serious" about "getting both her and the kid." What offenses might Jorge be charged with? How should each attorney respond? How is custody likely to be determined given the facts in this case?

Answer 1

a) What offenses might Jorge be charges with? Depending on the state's criminal code, he might be prosecuted for several offenses including but not necessarily limited to stalking, cyberstalking, assault, battery, aggravated child abuse, domestic abuse. The prosecutor has sufficient evidence for an "evidence-based" prosecution.
b) How should Annamaria's attorney respond? The number one priority should be Annamaria's safety. She should be provided with a safety plan to prepare with assistance if necessary. She is clearly at risk and although any action on her part may exacerbate the situation, inaction will continue to place her at risk. She might be encouraged to support the prosecutor as he or she conducts an evidence-based prosecution. She might also be encouraged to seek a comprehensive protective order for both her son and herself. Given that she is not legally separated from her husband she might be encouraged to pursue a divorce and obtain sole legal custody of the child, support, and property division, if appropriate. Some victims of abuse may choose to file civil actions against their abusers for battery, destruction of property, and intentional infliction of emotional distress. Note however that if the divorce action is based on cruel and abusive treatment, matters related to the abuse will probably need to be litigated in the context of the divorce action. It needs to continually be kept in mind that a victim of abuse is never at greater risk than when she finally stands up for herself and acts and so again, safety must be the number one priority. She needs to be fully prepared for his potential response when he is served with any legal action.

c) How should Jorge's attorney respond? Like it or not, everyone is entitled to representation, even batterers. However few lawyers are trained to work with either batterers or victims and it is permissible to decline to represent a client who poses a threat to others including potentially members of the family law team. Clearly an effort should be made to dissuade the client from carrying out any violent or otherwise criminal actions. The attorney's duty to report the client's threats will vary by jurisdiction. In some, the duty to report has already been triggered by the client's threat and clear potential to carry out the threat. In some jurisdictions the potential victim(s) are to be warned. In some jurisdictions, the attorney will be mandated to report the abuse he or she suspects is occurring and/or is threatened. In the absence of a state rule, the attorney is well advised to act in a manner consistent with the American Bar Association Rules of Professional Conduct and disclose only the information necessary to prevent death or substantial bodily harm.
d) How is custody likely to be determined given the facts in this case? A documented history of abuse is a factor considered in custody determinations in every state. In some there is a rebuttable presumption against awarding custody to a parent who has a documented history of abusing a child. In the extreme, the state may seek to terminate the abuser's parental rights but this would be done in a separate proceeding. A conviction for abuse is evidence of unfitness. In this case, custody is highly likely to be awarded to Annamaria. The student may mention that in a very small minority of states, a parent may be denied custody for permitting a child to witness domestic abuse.