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Domestic Violence Survivors Justice Act Passes

Domestic Violence Survivors Justice Act Passes

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New York Governor Andrew Cuomo signed a new law that will allow for reduced sentences for victims of domestic violence who committed a crime while defending themselves from their abusers. The Domestic Violence Survivors Justice Act will give judges alternative sentencing guidelines for those who committed an offense where domestic violence was a significant contributing factor. 

In justifying the law, the New York State Senate cited the high number of women in prison who have experienced violence and the fact that, while the nation has recognized domestic violence as an epidemic, the state’s laws have not been reformed to protect survivors who act to protect themselves. Current New York law can be harsh to survivors and judges are afforded almost no discretion to consider the impact of domestic violence. A domestic abuse survivor who fought back would be charged and sentenced similarly to the abuser.

Domestic Violence Survivors Justice Act

The new law would allow judges to sentence survivors to alternative sentencing including shorter sentences or community-based programs. This would not only apply to domestic survivors moving forward but those victims who are currently in prison would be able to petition for resentencing.

Previously, the state had attempted sentencing reform in 1995 to address the same problem. Known as Jenna’s Law, the Sentencing Reform Act of 1995 gave judges the ability to give survivors indeterminate sentences. The thinking was that judges would use this exception to mete out reduced sentences for survivors. This was not the case, however. The New York Senate points out that the exception was only used once in 2007 and the person actually received a harsher sentence than is normally allowed.

While the law applies to both men and women survivors, it was noted that alternative sentencing is “particularly appropriate” for women survivors since they more often than men have low recidivism rates and no criminal history. The text of the bill points out that between 1985 and 2003, there were 38 women convicted of murder and released. Those women experienced a 0% recidivism rate with none returning to prison. The Senate also noted that community-based programs reduce the likelihood of recidivism and cost the state about a quarter of what it costs to imprison someone, $11,000 to $43,000.

New Sentencing Guidelines

Courts will have to make a determination that abuse was a significant contributing factor to the crime. During sentencing, the court can consider oral and written arguments, witness testimony, and relevant evidence including reliable hearsay. If the court determines that abuse was a significant contributing factor, the judge can impose alternative sentencing.

The judge has the power to impose a sentence of one year or less or probation but can alternatively follow newly prescribed determinate prison terms. Most felonies, other than Murder in the First Degree and Aggravated Murder, that were committed under the duress of abuse, including Murder in the Second Degree, Manslaughter, Assault in the First Degree, and Strangulation, would have the mandatory minimum sentences reduced to one year. A class B felony, for instance, would have a minimum sentence of one year instead of six and a maximum sentence of 5 years instead of 25 years. Class A felonies such as Murder in the First Degree will have a sentencing range of 5 to 15 years instead of 15 years to life imprisonment.

People who are already imprisoned may also make a motion for resentencing if their victimization led to their crime. For instance, if an abused woman murdered her husband in a premeditated fashion and is in prison for life, that woman may be able to apply to have her sentence reduced. That application must have at least two pieces of corroborating evidence that the prisoner was subjected to substantial domestic violence. One of those pieces of evidence must be a either a court record, social services record, hospital record, sworn statement, police record, domestic incident report, or order of protection.

It is encouraging to see the state of New York take a huge step in judicial empathy for domestic violence victims. Certainly, we do not want citizens to take the law into their own hands but the law should not be so rigid as to ignore sympathetic circumstances.

About The Author
Rochelle S Berliner
Rochelle Berliner grew up in Queens, NY and attended New York Law School graduating in June 1991. Immediately after law school, she started working at the New York County District Attorney’s Office, where she stayed for approximately 14 years. She spent her first two years in the Appeals Bureau and then transferred to the Office of the Special Narcotics Prosecutor, where she remained until May 2 ...read more

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