A Judge’s Guide

Because Hoppe reported that Daoust had not hit her, it was considered novel that the expert
testimony on Battered Woman Syndrome (BWS) was admissible, which is surprising given that
Daoust had repeatedly raped Hoppe. The court was likely persuaded by evidence of Daoust’s
constant threats to kill Hoppe and her daughter, his extreme verbal abuse, tight control of her
money and all activities, and his frequent raping of Hoppe. After the trial court convicted
Daoust of second degree child abuse, he appealed, alleging that the evidence of BWS was
improperly admitted. The Court of Appeals determined that the BWS was relevant and
necessary to understand Hoppe’s early lies about Daoust’s not harming her daughter. Evidence
of Daoust’s prior abuse of Hoppe’s daughter was also deemed admissible since it was probative
of the relationship dynamics, consistent with BWS. 218
Particularly in cases with unsympathetic defendants, an expert may be the battered
defendant’s only hope to explain her state of mind and lack of resources. In In Re Glenn G., 219
the mother was accused of failing to protect the children from sexual abuse by their father,
which sometimes occurred in her presence. The court found that not only must the mother be
permitted to offer BWS as her defense but also that the charges against her would be dismissed
as she had no capability to protect her children from the abuse. 220 While it is beyond the scope
of this Article to address this issue comprehensively, lawyers representing battered women on
failure to protect charges must carefully strategize the psycho-social minefields inherent in such
cases. 221 Finally, given that most child protection staff, jurors, judges and lawyers will not
understand such thinking, counsel may want to consider using an expert in cases where the
battered mother is being charged with not adequately protecting her children from the abuser.
XI. RESPONDING TO CHILDREN AT THE CRIME SCENE
A. Law Enforcement Response to Children at the Crime Scene
1. Every police incident report must document both those children living in the home
and those present at the crime scene. In reviewing hundreds of domestic violence incident
reports in the early 1990’s, we discovered that rarely were children mentioned unless they had
been so badly beaten that they had visible injuries. In an effort to collect data on this cohort of
children, it was necessary to add two boxes to incident report forms: one box to note the names
and ages of children living in the home and the second to list those present at the crime scene.
This distinction was necessary as there could be five children living in the home, but only two
present at the crime scene because the others had been sent to a neighbor when the violence
erupted or they happened to be away from home on that date. Based on the assumption that the
incident to which the police are responding is not the first, every effort must be made to offer
services to all children traumatized from witnessing the abuse and/or being the target.
218 Id.
219 657 N.Y.S.2d 464 (Fam. Ct. 1992).
220 See id. at 470.
221 For additional resources and technical assistance, counsel may contact the National Council of Juvenile and
Family Court Judges’ Resource Center on Domestic Violence and Child Protection at www.ncjfcj.org or 1-800-52-
PEACE.
259