A Judge’s Guide

interference 73 are also popular tools used by batterers to achieve victim compliance. IPV
perpetrators may also threaten harm to the children if the victim does not assist him in
committing crimes, thus making her a co-defendant by duress. 74
Victim advocates and lawyers lament that some judges view even blatant witness tampering
with children as “squabbles” that do not warrant court intervention. 75 This attitude reflects
what Attorney Julia Raney identifies as “fundamental disbelief” on the part of law enforcement
and judges regarding many batterers’ willingness to use the children as leverage in raising the
stakes of obstruction with domestic violence victims. 76 To remedy this trend, I propose that a
batterer’s witness tampering, obstruction, and/or retaliation against a child result in enhanced
criminal penalties. 77
Certainly, intimidation of child witnesses is also common in child sexual assault, abuse,
and neglect cases. Although that separate genre is beyond the scope of this article, it is worth
noting that the defendant’s tactics are similar and equally effective at inducing both compliance
and long-term trauma. 78
In reading hundreds of witness tampering cases involving batterers’
direct harm of children as the ultimate means of influencing the abused parent, it is shocking
72 See, e.g., State v. Bartilson, 382 N.W.3d 479 (Iowa App. 1985) (batterer told his wife that he would not return
their child to her unless she dropped her assault charge against him); State v. Blaylock, 2004 Tex. App. LEXIS
9440, *4 (Tex. App. 2004) (batterer took victim’s infant child and told her that he would not return the child until
she dropped her charges against him): ); See generally Shelly, Holcomb, Notes and Comments: Senate Bill 140:
How Much Did It Change Texas Family Code Section 153.004, 9 Tex. Wesleyan L. Rev. 121, 125-26 (2002).
73 See, e.g., State v. Roberts, 556 A.2d 302 (N.H. 1989) (batterer told his estranged wife that she would not get her
runaway daughter back unless she refused to testify in pending sexual assault charges against him brought by
another person).
74 Under common law, a prima facie defense of duress requires that the defendant prove she had a reasonable belief
of serious bodily injury or imminent death if she failed to comply with the batterer's demands to commit the crime.
She must further show that the abuser's threat was the cause of her unlawful conduct. See Cynthia Lee and Angela
Harris, CRIMINAL LAW, CASES AND MATERIALS 808-09 (2005) (describing duress defense). Here, a duress
defense should be considered if the IPV victim is charged with perjury, accepting a bribe, or other crimes
committed at the direction of the batterer; See generally Heather R. Skinazi, Not Just a “Conjured Afterthought”—
Using Duress as a Defense for Battered Women Who “Fail to Protect,” 85 CALIF.L.REV. 993 (1997) (discussing
duress as a defense in “failure to protect” cases).
75 Raney Talk, supra note ___ (noting that especially in civil divorce, custody, and visitation matters, judges and
law enforcement mischaracterize witness tampering as “squabbles”): see also, Author’s Experience (observing
widespread denial and minimization of batterers’ abuse of children in the context of witness tampering).
76 Id. (describing batterers as using children as tools to force victim recantation); see also, State v. Parent, 836
S.2d 494, 5000 (La. App. 2002) (batterer described in detail how he would kill the victim’s son if she testified
against him.)
77 e.g., The TEX. PENAL CODE § 36.06 Obstruction or Retaliation should be amended to include an added
section: (d) An offense under this section is a felony of the third degree unless the victim of the offense was child,
in which event the offense is a felony of the second degree.
78 See William W. Harris, Alicia F. Lieberman, and Steven Marans, In the Best Interests of Society, 48 J. of CHILD
PSYCHOLOGY AND PSYCHIATRY 392 (2007) (reporting that [C]hildren’s responses to trauma can render
them simultaneously over-reactive, helpless and immobilized – whether as victims of abuse [or] witnesses to
domestic and community violence. . . with the potential for long-lasting changes in brain anatomy and
physiology.”) (hereinafter In the Best Interests of Society); Nat Stern and Karen Oehme, Increasing Safety for
Battered Women and Their Children: Creating a Privilege for Supervised Visitation Intake Records, 41 U. Rich.
Law Rev. 499, 515-16 (2007) (discussing the similar manner in which the perpetrator exerts control over a victim,
resulting in comparable damaging effects).
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