Category Archives: Family Law
As you all know, I love Homeland. One of the reasons I love it is because I’m intrigued by Brody’s Stockholm syndrome. Imaging my surprise when I was perusing the Nevada Supreme Court’s resource manual on Domestic Violence, and found this language, comparing prisoners of war with victims of domestic violence:
Psychologist Alfred D. Biderman studied prisoners of war and the brainwashing tactics
used by the Nazis in World War II and the Chinese in the Korean conflict.5 Biderman
depicted in his Chart of Coercion, which was published by Amnesty International in 1973,
the behavior of the captor in conditioning the prisoner. When with others, the captor
exerts a rigid control over his behavior; however, when with the victim, he uses selectively
abusive behavior which demonstrates “an established set of control skills” intended to
produce the completely compliant and dependent victim. The coercive techniques used
on P.O.W.s included: sleep deprivation, torture, bondage, rape and other threats and
violent actions of all types.
Domestic violence reveals many of the same techniques as the captor’s coercion of the
prisoner. A particular problem in domestic violence, as with highly trained combat solders,
is that many battered women are actually strong individuals who will not give in. The
stereotype that battered women are weak, pathetic, and easily manipulated is not borne
out by the evidence. The FBI reports that a woman is beaten every ten seconds, but a
better way to understand the actual dynamics of domestic violence is to realize that a
woman resists battery every ten seconds.
The article then proceeded to the Stockholm Syndrome:
The Stockholm Syndrome
Battering has been likened to the Stockholm Syndrome, the phenomenon of bonding with
one’s captor. In their study of “hostage” relationships, Dee L.R. Graham and Edna
Rawlings found parallels between persons in hostage situations and those in battering
relationships.8 Graham and Rawlings studied several groups and determined that bonding
occurred in many “hostage” groups, including: prostitutes, cult members, concentration
camp prisoners, incest victims, emotionally and physically abused children, and battered
women. Graham and Rawlings concluded from analyzing the background of the domestic
violence victim that it was similar to the background of the flight attendant on a plane that
is hijacked. ..
Graham and Rawlings believe that the following process takes place in an abusive or
hostage situation: “An abuser traumatizes a victim, who cannot escape, by threatening her
physical and psychological survival. As a result of being traumatized, the victim needs
nurturing and protection. Being isolated from others, the victim must turn to the abuser for
this needed nurturing and protection, if she turns to anyone.” When the abuser shows
kindness, hope is created and the victim feels optimistic, denies her rage, and bonds to this
positive aspect of the abuser. The victim takes on the perspective and perceptions of the
abuser. “Because there is so much at stake, namely her survival, the victim is hyper vigilant
to the abuser’s needs, feelings and perspectives. Her own needs must take second place
to the abuser’s.” If the victim’s needs and feelings were to surface, the terror would
overwhelm her. Therefore, she sees the abuser as the “good” person and police or others
who would help her as the “bad” people. This helps to explain why it can be so difficult
to get a battered spouse to aid the police or the prosecution.
In Homeland, Carrie runs around saying “Twenty years ago I missed something. I can’t miss it again.” I had these words echoing in my head the other day. I missed it, the police missed it, the DA missed it. This thought kept nagging me on this, nagging me again and again because I was prosecuting a restraining order for mom and her kid. Because if she leaves you, take her kid away, right? Even if you’re not on the birth certificate. We had an arrest for that one, arrested with bullets in his pocket. I knew would be dropped by the D.A. because it’s just some ammo in the pocket, right? It was dropped. Absolutely useless. And in Nevada custody cases, your proof needs to be “clear and convincing” or else it goes joint legal joint physical. That means the perp can put a gun to the head, a knife to the throat, and as long as it’s done in secret and doesn’t leave a mark, the police won’t interfere and the perp can still take the kids. I’m trying to be gender neutral here because I have cases where the man was the victim. Shoved right down the stairs, breaking bones.
But for the purposes of my narrative, trust me, this guy was a bad guy. But it’s not what you know, it’s what you can prove. And in custody cases involving domestic violence, you have to overcome the presumption that your client pushed the nuclear war button. So the proof needs to be independent of the client, and her panic that the ammo clip she found in her car was a death threat. I’m not giving all the facts here, but we had enough “facts” to be suggestive and creepy, but not probative. Probative means tending to prove or disprove. Like finding your brake lines sliced, knowing it’s your estranged spouse who’d rather pick up insurance proceeds than foot the bill for a divorce, but not having a way to prove the spouse did it. These things really do happen and I’m a paid hand, paid to handle it.
This guy had a twenty year old charge for trying to shoot somebody. It was brought as a felony assault charge, then pled to a misdemeanor discharging a firearm where a person might be charge. (Right, Vegas prosecutors. If you read this, I’m talking to you.) Anybody who knows anything about the rules of evidence knows that ten years is the max to bring it into evidence. But man, it kept creeping me out.
We had narrative, suggestions and threats, but not proof.
So, I kept digging, digging. Buried deep in twenty-year old Court minutes, I found this: the victim was pregnant with the perp’s child. Bingo – attempted murder of a spouse with a gun.
Homeland is exciting. Real life is boring. In Nevada, we have an operating equation for the federal fireams ban, which runs like this:
Domestic Violence Conviction (DOMBAT colloquially)= Lifelong ban on firearms and ammo per federal law.
No DOMBAT = Carry as many guns and ammo as you can carry, including McDonald’s Playland. Gets pretty rough in there, right?
I ended up perusing the Gun Control Act. Mostly ATF stuff that made me yawn. Finally, I found it: A qualifying misdemeanor crime of domestic violence. ..any crime against an intimate partner involving the use of force or a firearm for the lifelong ban to apply, with conditions set forth that were met in this case (representation, plea, etc.) And, conversely, just because it’s not called a dombat doesn’t mean that the federal firearms ban automatically applies. But it’s lifelong. So when this guy was arrested with the bullets in his pocket trying to take the kid from the babysitters (I was just trying to see my kid), everybody missed a federal offense because of some lazy prosecutors. I suspect they didn’t want mandatory prosecution, which is what domestic violence charges require.
I missed it. The local DA missed it. The police missed it. But when I walked in front of the Judge, the Judge didn’t miss it. Because the conviction established that he was subject to a lifelong ban on firearms, we got the conviction into evidence. We also got his MO, common plans, and established motive. We established that the Defendant used coded “messages” to my client as death threats. We were even able to get him dispossessed of his weapons.
It’s just a start, and they aren’t safe yet. There’s far more work to be done. But the important thing that was able to be breached was the “boys will be boys” approach to guns in Nevada and the literal interpretation of the Gun Control Act that was never meant to be applied that way. My client perceived these as coded threats, in the special language of abuser and victim, like prisoners of war. A spoon is just a spoon, unless you know it’s been used in terrible ways. Prosecuting these cases requires a gestalt flip. By getting the Court to understand her fear through objective evidence, we were able to get our applicant judicial protection. I’m not a psychologist, but I hope I did something right in there.
Today, it’s been over a year, and I think I can finally post this post. On April 1, 2012 my uncle Frank Ohlinger was flying his Cessna on a police mission in Palau. According to last communications on his return, his GPS went out and they made an emergency water landing.
First, my Uncle: A wandering engineer, he would send updates and messages on his travels, signed “from the edge of the world.” Several year ago he relocated permanently to Palau, invested in several local businesses like the coconut plant, and made Micronesia his home. It is a small place, with barely 14,000 people, a country barely bigger than my small town of Boulder City. But it is a diving paradise, a world heritage site and marine reserve, one of the last places on earth to see an endangered dugong. (A dugong looks much like manatee a manatee, in pictures.)
The day before he disappeared a pirate ship, sailing under a Chinese flag, was spotted poaching giant clams. A firefight ensued, with Frank and two Palauan gendarmes providing air support. Now this day, my Uncle and the two policemen reconnoitered the burnt wreckage. On their return, the GPS failed in a low cloud bank. Night descended. All the people on the islands turned their lights on to try to guide them in. They even drove their cars to the top of hills for light beacons.
The last communication from Frank was that they were going to attempt an emergency water landing. Then silence. The US Coast Guard turned out for three days and even Paul Allen’s ship the Octopus searched, but the Pacific Ocean is a big place and no traces – plane parts, debris, or the people on board – have ever been found. After three days, the Coast Guard left. Then the Octopus, fading away into the distance. My understanding is the islanders keep looking.
It is a special mixture of hope and grief, not quite hope and not quite full commitment to the sadness. You tell yourself that they will find him. Because planes and people don’t simply disappear.
But they do.
That is how I became personally acquainted with Death in Absentia.
Of course, the Family began calling immediately. Lawyers experience a special feeling of helplessness when they get to say something to their loved ones like “We’re going to need a lawyer in Palau.” We did have a few firefights among ourselves.
Normally, when a person passes overseas, the legal steps are to get a local certificate of death, and to take that to the consulate which will issue a “certificate of death abroad.” That certificate allows the family to initiate the probate and estate processes.
When a person goes missing, that can’t happen. The Consulate does not have the authority to declare a death certificate, only to domesticate a foreign one. Since Uncle Frank was a resident of Palau, the family had to initiate a guardianship process in Palau. The first time I did a guardianship here in the States, I learned there are two parts: guardian of the person and guardian of the estate – I.e. the finances. Many guardians are both, sometimes the roles are split between different people – I’ve since even seen an entire guardianship committee set up to care for an ailing parent.
Here the requirement is only a guardian of the estate, because you have no person. Once the guardianship is issued comes the waiting.
The key question everyone wants answered, once they accept their loved one will not come back, is how long? The common law varies. Traditional English common law is seven years, and it took Natalee Holloway’s parents six years to have her declared legally deceased in Alabama where she lived. Here in Nevada it is three years. Some times, if there is overwhelming evidence of calamity, death certificates are issued immediately – such as after the terrorist attacks of 9/11.
Because we don’t have a plane, or an accident site, for us – both my family and the survivors of the policemen – there is only waiting, and some false hope remaining. We wait as long as the Court says we have to wait. We simply continue to wait.