Using A “Lethality - Danger” Assessment In The Defense Of Colorado Domestic Violence Charges

By H. Michael Steinberg Colorado Criminal Defense Lawyer

"Prediction is very hard to do - especially if it is about the future" - Yogi Berra

“Lethality - Danger” Assessment Defending Colorado Domestic Violence cases often requires thinking outside the box. Persuading a District Attorney or sentencing Judge that your client, a person accused of acts of domestic violence, actually poses no risk to the alleged victim, means providing information that fully flushes out just exactly who, in human terms, your client is.

The experienced Colorado criminal defense lawyer may use forensic psychological evaluations as a tool to provide as much information as possible to the District Attorney and sentencing Judge to demostrate the low risk potential of the accused.

Over the years, Colorado judges have consistently maintained that an objective assessment of the potential for domestic violence to occur in a given relationship is of value in the prosecution of Colorado domestic violence cases. To a judge at sentencing, having an informed evaluation of the assessment of risk of potential future violence is invaluable.

The Growth Of Domestic Violence Risk Assessments Is Valuable In The Defense Of Accusations Of Domestic Violence

Over the last decade, there has been much research into psychological "risk assessments" in the context of domestic violence cases. This growing scientific base of information is focused on diagnostic tools that aid in a more complete understanding of the risk predictors for domestic or "intimate partner" violence. The term "intimate partner" is used because it is narrow enough to include traditional intimate relationships, yet broad enough to include relationships beyond cohabitation or legal marriage.

The idea behind using risk assessment tools in Colorado domestic violence cases is to assess the ACTUAL RISK, if any, that the accused poses to the alleged victim in the case at hand. Colorado criminal defense lawyers can use this information base to establish that the Defendant poses little or no risk to the alleged victim or the community.

The focus of this article, the first of two articles, is an examination of the tools available to evaluate the accused. The second article will focus on a different set of tools used to evaluate the alleged victim.

Domestic violence risk assessment is simply a method for identifying potential problems and formulating options and resources available to solve these problems within the criminal justice system.

Far From An Exact Science - But Useful To Defending Domestic Violence Cases - One Size Does Not Fit All

Admittedly, risk assessment "tools" are far from being an exact science. However, one thing is certain, the more information that can be provided about an alleged domestic violence offender and the alleged victim, the more accurate the "read" of the case by the stakeholders in the system. The goal is for judges, prosecutors and defense attorneys to utilize this information in order to obtain a more just result.

The Classic Management Strategies For Controlling Domestic Violence

Classic post-conviction risk management strategies in Colorado domestic violence cases have focused primarily on the protection of the alleged victim.

They include:

  • Monitoring the Offender, (Monitoring Changes in Risk),
  • Treatment of the Offender,
  • Supervision of the Offender, (Restricting the Accused's Rights or Freedoms to Decrease the Possibility of Further Violent Behavior), and
  • Victim Safety Planning.

As noted, these "victim-focused" measures are the tools of post-conviction protection for the victim. The tools of the future, as explored below, focus more on the accused domestic violence perpetrator.

This article addresses the use of alleged perpetrator-based tools that focus on an accurate and objective evaluation of the target of the criminal case, the person charged with domestic violence crimes.

Risk Assessment Tools and the Colorado Criminal Justice System - Static and Dynamic

Perpetrator risk assessment tools, as used in the Colorado criminal justice system, focus on psychological and psycho-social risk factors that are believed to be associated with dangerousness and recidivism (repeating the same kind of crime).

There are two basic types of risk factors in domestic violence case: static and dynamic.

Static risk factors are fixed and unchangeable , (examples include age, gender, childhood and criminal history.)

Dynamic risk factors are the kind of factors that "fluctuate over time and reflect internal states or temporary circumstances of the individual, such as beliefs and cognitions, everyday associations, and feelings of hostility."

Since dynamic risk factors are ever-changing, they are more difficult to quantify. Dynamic risk factors are also commonly known to the stakeholders in the criminal justice system as "criminogenic needs."

A Brief Diversion To A More Traditional Risk Assessment - The Level of Service Inventory (LSI)

The Level of Service Inventory (LSI) is one of the most common classification tools used with adult offenders. The LSI is still used in Colorado criminal cases to determine terms and conditions of probation, community corrections sentences, prison and parole plans for offenders convicted of domestic violence.

The LSI is one of the most researched correctional risk-needs assessments, and is well accepted and respected. The latest version of the LSI is called the LSI-R, and it is widely used because it is considered to be "theoretically informed, empirically supported, actuarial-based, and standardized measure of criminogenic risk and needs."

The LSI-R is administered through a structured interview - documentation and information is collected from family members, employers, case files, drug tests, and other relevant sources.

The LSI-R includes 54 items that measure ten components of risk and need.

The measured components include:

  • Criminal history,
  • Education and employment,
  • Financial,
  • Family and marital relationships,
  • Residential accommodations,
  • Leisure and recreation activities,
  • Companions,
  • Alcohol and drug problems,
  • Emotional and personal, and
  • Attitudes and orientations.
Other Domestic Violence Evaluation Tools - The SARA Domestic Violence Evaluation Tool and the DVRNA Domestic Violence Evaluation Tool

Prior to the development of the DVRNA, discussed below, there was the Spousal Assault Risk Assessment (SARA). The SARA was the primary risk assessment tool used by approved treatment providers in Colorado. The SARA is comprised of mostly static factors. Static factors, while valid and somewhat reliable, are not a good measure of the level or intensity of the treatment needed for the alleged offender. Furthermore, the SARA is not an ideal tool because it cannot assess changes in risk during treatment.

The Domestic Violence Risks and Needs Assessment (DVRNA- further discussed below) is a more modern and helpful tool because is comprised of both static and dynamic factors. The DVRNA can be used not only for the initial identification of offender risk, it can also be used to reassess an alleged offender's increase or decrease in risk during treatment.

More Accuracy - Offender Based Risk Assessments - The Domestic Violence Risk and Needs Assessment (DVRNA)

The DVRNA was developed following the detailed review of the five other instruments.

The Domestic Violence Risk and Needs Assessment (DVRNA), was created to identify the risk level of alleged domestic violence offenders. The DVRNA was developed to be a multi-disciplinary tool for identifying the risk and needs level of the individual offender.

The assessment tool creates at least three different risk categories, and is intended to use actual offender risk to match the offender's risk with the intensity of treatment. It was developed by the Treatment Review Committee of the Colorado Domestic Violence Offender Management Board (DVOMB).

Using The DVRNA On Behalf Of The Defendant

The DVRNA can be used not only by the State in prosecuting Colorado domestic violence cases, it can also be used by Colorado's criminal defense bar to establish the lack of propensity to commit acts of domestic violence as to the accused. The DVRNA consolidates risk factors into a single measure, and has the capacity to provide a single method of determining the likelihood of ongoing or repeat violence.

As mentioned above, DVRNA uses mostly dynamic risk factors. The DVRNA was created based on research outlining empirically valid risk factors most commonly related to DV re-offending, DV lethality, and general criminal recidivism.

Judges, district attorneys, and treatment providers are tasked with creating treatment options for offenders that are not "one-size-fits-all" which, historically, has been the only option available in the Colorado criminal justice system.

The Colorado criminal courts are eager to employ tools that can differentiate between higher and lower risk domestic violence offenders. Offenders who present the highest risk are those targeted for the greatest number of interventions. For the Courts to administer any form of justice, the intensity of treatment must be matched to the offender's risk level.

The goal of the criminal defense lawyer is to have the accused evaluated accurately. There is synchronicity in these goals that can work to the tactical benefit of the Defendant.

An understanding of the dynamic factors behind a Defendant's criminogenic needs that decrease that Defendant's level of risk helps the district attorney and the judge to recognize that low-risk offenders should be treated differently (in terms of intensity and frequency of intervention) than high risk offenders. The carefully evaluated Defendant can utilize danger assessment tests to match the intensity level of treatment (using risk principles) thus the Defendant can reach a better result than some of the more ambiguous tests applied in the recent past.

The Risk Factors Used To Evaluate The Potential For Domestic Violence

The risk factors that have been identified from the research in this area are made up of 14 empirically-based domains. The DVRNA model is based on what is called the "risk, needs and responsivity" principles, shown to be effective in reducing domestic violence based recidivism. These principles are explained below:

The Risk Principle : The level of service must be matched to the offender's risk of re-offending.

The Needs Principle: Assesses criminogenic needs (the dynamic risk factors associated with criminal behavior) and target those needs in domestic violence treatment.

The Responsivity Principle : Maximizes the offender's learning by providing cognitive behavioral treatment and tailoring the intervention to the learning style, motivation, abilities and strengths of the offender.

The DVRNA takes numerous risk factors that have been identified through empirical research as increasing the risk of violence, or escalating its seriousness, and consolidates these factors into a single measure - thus providing a method of determining the likelihood (probability) of ongoing or repeat violence. Based on a Defendant's score on the DVRNA, that person placed into one of three categories of intensity of treatment.

The Initial Evaluation: Identifying Risks and Needs

After an offender is sentenced, treatment providers conduct an initial evaluation. The evaluation gathers data on the offender that determines the assigned level of risk and recommended treatment plan.

Colorado Domestic Violence Evaluations to determine the level and nature of risk, (including possible lethality) for future domestic violence include an assessment of such things as:

  • Substance abuse issues,
  • Mental health issues,
  • External sources of information such as police report, public victim impact statement,
  • Criminal history,
  • An interview with the offender to explore relationship history, psycho-social history, motivation, accountability and responsivity factors,
  • Offender responsivity, accountability, and amenability to treatment.
Three Levels of Treatment Intensity

The presence of risk factors determine whether an offender will receive low-intensity (level A), moderate-intensity (level B), or high-intensity (level C) treatment.

Each risk factor domain is scored as "one" if the risk factor is present, with 14 as the maximum score on the DVRNA.

For example, low-intensity treatment content is largely educational, whereas high-intensity treatment is geared toward crisis intervention and the stabilization of the offender. Offenders are evaluated based on objective measures of risk and needs, including responsivity to treatment.

Placement into risk level depends on an offender's overall score on the DVRNA. There are three levels of domestic violence treatment needs under the DVRNA:

Level A (low intensity) treatment is for offenders who have a DVRNA raw score of zero or one with no significant or critical risk factors. At the time of their initial assessment , level A offenders have not shown a pattern of ongoing abusive behavior.

Level B (moderate intensity) treatment is for offenders who have a raw score two to four on the DVRNA or at least one significant risk factor and are required to participate in weekly group clinical sessions as well as additional clinical intervention a least once a month. These offenders have an identified pattern of ongoing abusive behavior. They may have some criminal history in addition to substance abuse and/or mental health issues.

Level C (high intensity) treatment is for offenders who have a DVRNA raw score of five or higher, or at least one critical risk factor, and are considered high risk for re-offending. Level C offenders may be chronically unemployed, likely to have criminal histories, and/or generally have little in the way of a healthy social support system.

Risk levels increase or decrease for some Defendants during the domestic violence treatment process based on their progress in treatment and the dynamic risk factors applicable to their case.

The DVRNA presents a useful framework for assessing risk. These risk factors can work for, or against, the Defendant.

DVRNA Risk Factor Domains Revisited

LSI Chart

The Ultimate Goals Of A Colorado Criminal Defense Lawyer In Domestic Violence Cases

The Best Result - Dismissal Of The Case

Dismissal is the first goal of any criminal defense lawyer. If the prosecutor can be persuaded through an analysis of the facts and the investigation that the case should be dismissed "in the interests of justice" that is clearly the best result.

The Second Best Result - Diversion (True Diversion)

Diversion is when the prosecutor withholds the filing of charges and the Defendant agrees to complete certain terms of the diversion agreement (and subsequently does successfully complete the terms of the diversion agreement) the result is that charges are never filed and no formal prosecution takes place.

The Third Best Result - The Deferred Judgement And Sentence

In a Deferred Judgement and Sentence (DJ and S) the parties, including the judge, agree that

the Defendant will plead guilty to a charge (which can be negotiable) and then, if that person successfully completes the deferred judgement program, the formal charges are dismissed.

If the individual does not satisfactorily complete the deferred judgement, a conviction for the charge is then entered following a hearing (where the violation of the deferred judgement must be proven) and the individual is then sentenced.

Domestic Violence Assessments - Summary And Conclusion

In the past, risk assessment consisted of mainly professional (or clinical) judgment concerning an individual's risk to commit a crime measured by the intuition or the "gut feelings" of the professional involved. These opinions were subjective, not standardized, they were biased, not objective risk measures.

Today, violence risk assessments are a tool that forensic psychologists and other professionals can utilize to make the criminal justice system more just and reasoned. Whether it is a sentencing judge, probation or parole officers, or the criminal defense lawyer using these new tools, the end result is more accuracy and usually better results for all involved.

The creation of the DVRNA was the first validated instrument to differentiate domestic violence offender treatment according to offender risk. Domestic violence cases are unique in many ways. They usually involve intense emotional involvement between victims and the offenders. These assessments are a still a work in progress, but it is a watershed in terms of objectively assessing risk and need levels and classifying offenders into differentiated treatment levels.

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