Does surveilling alleged domestic abusers violate their rights?


Edna Erez and Peter Ibarra are professors of criminology, law and justice at the University of Illinois at Chicago.

In the United States, about one in three women in intimate relationships experiences abuse, including rape, battery, intimidation and stalking. But those who report domestic violence to authorities or attempt to leave their abusers are at risk of experiencing harassment and separation assault, which can sometimes be deadly. They are also vulnerable to being coaxed by an alleged abuser into backpedaling their story. These are forms of witness tampering that interfere with a victim’s ability to testify.

In response to lethal cases of separation assault, a growing number of state legislatures have passed or are considering passing legislation that mandates or permits the electronic monitoring of domestic violence defendants — most recently with GPS tracking ankle monitors — to ensure they comply with judges’ stay away, protection or restraining orders. While most defendants comply with such orders, a minority of alleged abusers with a long history of violence regard them as a mere “piece of paper.” Requiring GPS monitoring is hence a way of giving the orders teeth.

To place a defendant on electronic monitoring, courts generally require either a history of abuse, a record of violating restraining orders or a police report that raises serious alarms with prosecutors or judges about the alleged victim’s safety, such as if a defendant threatened a victim in the presence of an arresting officer. But given the perils of surveillance and the loss of privacy that such individuals face, should defendants who are accused of a crime, but have yet to be convicted of one, be placed under electronic monitoring?

At a minimum, a domestic violence defendant placed on GPS monitoring is forced to avoid certain “exclusion zones” — typically areas where the victim is routinely present, such as the home or workplace. But there can also be lifestyle restrictions, such as the imposition of a curfew or prohibitions on the use of alcohol. Some jurisdictions seize firearms owned by the defendant for the duration of an abuse case. There can even be unannounced home visits, during which defendants’ personal property is subject to warrantless searches.

For survivors of domestic violence, such restrictions may not only enhance their quality of life but also save their lives. Current or former partners can be tireless in their efforts to batter, stalk, ambush, control and menace their victims. In extreme cases, they may end up killing them. Over half of homicides of women in the United States are perpetrated by their intimate partner.

When their alleged abusers are placed on ankle monitors, survivors of abuse can have some assurance that “this time he is staying away.” They can reimagine their lives, furnish dependent children with a secure home and revive dormant social and family ties that had atrophied during abusive relationships. Importantly, they may be more willing to tell their story on the witness stand. Historically, a substantial majority of domestic violence charges are dropped or dismissed because victims are reluctant, ambivalent or fearful about testifying against their alleged abuser, who can harass or intimidate them into not appearing at trial or into recanting their stories. As the staff members of programs who help such women told us, some victims whose abusers were placed on ankle monitors felt empowered and willing to testify.

While most defendants resent the devices, particularly those in jurisdictions that put them under onerous restrictions, some defendants perceive benefits in being monitored, as the tracking devices provide them with a constant alibi, shielding them from the prospect of a vengeful ex-partner’s false accusations. Indeed, some defense attorneys we interviewed urged their clients to volunteer for monitoring — they viewed it as leaving a paper trail that would only help them win their case. After all, electronic monitoring is a temporary measure, usually limited to a case’s adjudication period, which lasts from arrest to disposition, an average of three months. Under some circumstances, the condition can even be lifted through a motion filed by the defendant or others, including the victim.

Still, given the restraints on defendants’ liberties, it is essential that courts are cautious about who is placed in their program’s ranks and are flexible in managing defendants. Restrictions that could potentially affect defendants’ ability to conduct their affairs — including earning a living — ought to be minimally intrusive without compromising the alleged victim’s safety. Programs vary in their willingness to accommodate defendants’ personal circumstances — an area where improvement may be required. For instance, programs could allow defendants to leave for work early so that they do not have to break their curfews or they could draw smaller exclusion zones so that defendants do not have to take an additional bus line to avoid them. Some agencies even make defendants pay for the cost of daily GPS monitoring. This should not be a condition of enrollment, as the fees may be a financial burden on the defendant or his dependents.

In itself, this sort of monitoring is no panacea for domestic violence. Nor is it foolproof or problem free. It does, however, level a playing field that is often stacked against victims. It can afford victims and their families peace of mind, freedom from abuse and harassment, and importantly, the fairer legal process they deserve.

This was produced by The WorldPost, a partnership of the Berggruen Institute and The Washington Post.