Boulder DA discusses recent decision to hold named domestic violence victim in contempt for refusing to testify

Jun. 13—Prosecutors last month had the named victim in a domestic violence case jailed overnight for contempt of court after she refused to testify in a case, something the Boulder County District Attorney's Office said is a rare step but one that is sometimes necessary in extreme cases.

The assault case, which involved allegations of strangulation, was set for trial on May 19 when the named victim in the case asserted her Fifth Amendment right to refuse to testify in the case.

After prosecutors granted her immunity, the woman, who did have a court appointed attorney, again refused to testify, leading prosecutors to ask Boulder District Judge Thomas Mulvahill to hold her in contempt of court.

Defense attorneys objected, but the request was granted. The woman was held in the Boulder County Jail overnight, but the next morning again refused to testify, at which point prosecutors dropped the case and the woman was released.

The Daily Camera is not naming the woman because she was the named victim in a domestic violence case and is also not naming the defendant because the charges against him were dropped.

The Boulder public defender's office, which represented the defendant, did not comment on the case. But Maureen Cain with the Colorado State Public Defender's Office issued a statement on the use of contempt of court against a named victim to invoke testimony.

"The issue is really that the government feels that they should be able to control victims," Cain said in a statement. "(Domestic violence) victims should be given care, support and safety. Prosecution is not always the answer for victims and it is quite presumptuous for the government to try to control victims.

"Perhaps if prosecutors changes their view of what makes victims safe we might actually start to address with honesty the DV problems in this state and country."

But Boulder County District Attorney Michael Dougherty said the decision to pursue contempt of court against a named victim and ask for jail time is not common, and something that has not happened in Boulder since 2018 and something he has only seen a "handful" of times in his career.

"It's rarely done, and its an incredibly important decision, and in this case we decided it was appropriate after weighing the risk to the community and the victim if we did not pursue the case," Dougherty said. "It's a step that we rarely take because we fully understand the consequences, and we would only do it in the most serious of cases and when absolutely necessary."

Deputy District Attorney Anne Kelly, who is on the office's newly created domestic violence response team, said a federal study found 80% to 85% of domestic violence victims either later recant or minimize their statements or refuse to participate in prosecution. So there have to be a number of other factors present for prosecutors to take the step of pursuing jail time.

"This is one of the most difficult things we do on domestic violence cases, and we decide to do it so rarely," Kelly said. "When we decide whether or not to hold that person in contempt, it's only in the most serious and cases that we evaluate to be the highest in lethality risk."

First, Kelly said prosecutors must look at specific red flags like strangulation as a method and prior cases, both of which were present in this case. Kelly said women who are strangled are seven times more likely to become homicide victims at a later time.

"The risk of reoffending is really what were looking at when we decide to force the issue," Kelly said.

Prosecutors noted that there was also some evidence and concern that the defendant, who was out on bond and allowed to have some contact with the named victim in the case at her request, may have influenced her decision to testify.

Kelly also noted that in some cases, there is enough other evidence to move forward with prosecution even without the named victim. She said that was not possible in this case.

So after the woman refused to take the stand even after a night in jail, Kelly said prosecutors in this instance did not believe the case was one they could present to a jury.

"As much as I very much wanted to see what happened, it would have been so difficult that I think it would have been unethical," Kelly said.

But Kelly said as difficult as the decision was, she felt it was the right one given the facts of the case.

"We rarely, rarely ever do this, but we had such great concern about reoffending that we felt it was in the community's best interest and the victim's best interest to hold him accountable, and we felt like we really didn't have much of a choice," Kelly said.

Because of the complicated dynamics between domestic violence victims and perpetrators, Kelly said sometimes prosecutors need to think of the community at large in addition to just the wishes of the named victim.

Kelly pointed to a recent case in which a man was accused of domestic violence in Boulder County, but the named victim declined to testify. The defendant in that case is now accused of murdering the same woman after they moved to Thailand.

"The respect for a victim's wishes is at the forefront, but in domestic violence cases the analysis is much more complicated than that," Kelly said.

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If you are a victim of domestic violence, you can all the National Domestic Violence Hotline at 1-800-799-SAFE (7233) or visit www.thehotline.org.