Leigh Goodmark

Leigh Goodmark

OKLAHOMA CITY — As they shared graphic stories of sexual and physical abuse, advocates for survivors of domestic violence on Wednesday urged state lawmakers to pass new legislation that stops criminalizing survivors.

One top prosecutor, meanwhile, said there already are mechanisms in place for defendants and their lawyers to present evidence of domestic abuse to Oklahoma courts before sentencing. However, he acknowledged that district attorneys find themselves in a unique position. Oklahomans passed a constitutional amendment in recent years that elevates victims’ rights to the same level as defendants’, and the victims’ wishes now often hold considerable sway in the outcomes.

Leigh Goodmark, director of the gender violence clinic at the University of Maryland, said over the past 40 years anti-violence advocates have touted legislative victories and increased enforcement of laws criminalizing gender-based violence and the longer penalties as proof of society’s dedication to ensure those who commit violence will be held accountable. But one of the most serious consequences of those policies has been the increased rates of arrest, prosecution, conviction and incarceration of victims of violence, the same people the laws were supposed to protect, Goodmark said.

Goodmark’s clinic represents people who have been convicted of crimes related to their victimization, or people they call “criminalized survivors.”

She said in Oklahoma, women are being held accountable for crimes committed by others, including being prosecuted for failure to protect, because they fought back in self-defense or because they committed crimes in fear of their partners.

Nationally, she said there’s been a 20% increase in life sentences handed to women and a 43% increase in sentences of life without parole between 2008 and 2020. The vast majority of those sentences involved “criminalized survivors,” she said.

She said Oklahoma’s mandatory minimum sentencing provisions have given prosecutors enormous leverage in plea bargaining such cases, and when a woman takes a plea, judges are barred from considering any mitigating information about abuse as part of sentencing.

Goodmark said across the country there’s a conversation taking place about whether such crimes should be prosecuted differently than other types. Illinois and New York, for instance, have passed laws that enable courts to depart from mandatory minimum sentences in cases where there’s evidence of domestic violence and or where violence is linked to the crime.

She urged Oklahoma lawmakers to consider similar criminal justice reforms.

Kyle Cabelka, district attorney for Comanche and Cotton counties, said prosecutors have a unique role, particularly when handling cases involving criminalized survivors. They have a job to represent the victim, but also consider the history and background of the defendant.

“It is a difficult decision that we make every day, and we gladly make it,” Cabelka said.

However, he said Oklahomans passed Marsy’s Law, a constitutional amendment that requires victims’ rights to be held to the same standard as defendants’. He said prosecutors have to be staunch advocates for victims, and outcomes in his office are completely driven by what the victim wants.

He said he doesn’t know how many mothers or victims of domestic abuse that his office prosecutes.

Cabelka said there’s a mechanism in the law whereby if a defendant has been abused, they can use that as a defense when charged with enabling sexual or physical child abuse. He acknowledged that it can be difficult to provide enough corroborating evidence to convince a judge, jury, prosecutor, law enforcement or even family that someone is being abused.

He said about a year ago, he filed a charge against a woman whose daughter was sexually abused for about 14 years by her stepfather. It only ended when her abuser killed himself. He charged the mother with enabling the abuse.

The mother contended she, too, was abused, but had no corroborating evidence to support that. Cabelka said he believed her account, and based on a recommendation from the victim, he reduced the charges dramatically. The woman received a deferred sentence.

“It allowed me, you know, the leeway that I have as a prosecutor to consider it (and) still hold her accountable,” he said.

About three years ago, Cabelka’s office charged a pregnant mother who used methamphetamine for roughly three months of her pregnancy. She ended up delivering early. The infant died, and the mother was charged with manslaughter.

In the years since, the woman has changed her life. She provided information showing that she had been a victim of domestic abuse and her abuser got her addicted and she used methamphetamine as a mechanism to cope. Earlier this week, Cabelka said he gave her probation.

“I give these two stories just to remind the committee that from a prosecutor standpoint, we’re not trying to send everybody to prison,” he said. “We do consider mitigation, but there are mechanisms in place currently that domestic abuse victims (and) victims of trauma can be heard.”

District attorneys are “kind of in a quandary,” said state Rep. Rande Worthen, R-Lawton, a former district attorney.

“I don’t think a lot of times the prosecutor intends to put everybody in prison … but it’s incumbent on those defense attorneys to get that information from the victims and try to provide that to the DAs,” he said.

Brenda Golden, a Muscogee citizen and attorney, told lawmakers that she once stabbed an ex-partner in the leg during a fight. Had he reported the stabbing, she could have been charged with attempted murder and been imprisoned, she said, adding that she feels lucky he never reported it and she was never charged.

But typically, when women fight back, they’re given three times the sentence compared with others, and 2 in 5 Native American women experience violence in their lifetime, Golden said.

In Oklahoma, Native women are imprisoned three times more often than white women and have a higher imprisonment rate than any other race or ethnicity in the female incarceration category, Golden said.

Jasmine Sankofa, an attorney with FWD.us, a national bipartisan advocacy group that focuses on reducing prison populations, said 1 in 6 incarcerated women in Oklahoma is serving a child abuse or neglect sentence, making it the most common conviction for women.

She said for three decades Oklahoma imprisoned more women per capita than any other state. Following a series of criminal justice reform efforts, Oklahoma now imprisons the second most. Only Idaho incarcerates more, she said.

Nearly 66% of the women behind bars reported being in an abusive relationship within a year before incarceration, Sankofa said.

“Efforts to cope with trauma or defend themselves against abuse serve as a pathway to prison for women in Oklahoma,” Sankofa said.

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Stecklein covers the Oklahoma Statehouse for CNHI's newspapers and websites. She can be reached at jstecklein@cnhinews.com.

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