By: Remy Bogna
February 3, 2020
In mid-2019, New York Governor Cuomo signed the Domestic Violence Survivors Justice Act (“DVSJA”) into law. In theory, through this bill domestic violence victims convicted of certain crimes may receive sentencing relief either prospectively via a post-conviction sentencing hearing, or retrospectively if they were convicted and sentenced prior to the DVSJA being signed into law.1N.Y. Penal Law § 60.12 (Consol. 2019).
The bill is part of a national trend: California’s new “Sin by Silence” laws allow expert testimony to be introduced in domestic violence contexts where it was previously barred, and Illinois added a consideration of whether the defendant had been a victim of domestic violence to its list of mitigating factors in sentencing.2Cal. Penal Code § 4801 (West 2018) (relating to parole); Cal. Penal Code § 1473.5 (West 2013) (relating to domestic violence writ of habeas corpus); 730 Ill. Comp. Stat. Ann. 5/5-5-3.1(15) (West 2020) (adding evidence that defendant was a victim of domestic violence as one of many enumerated potential mitigating factors). The DVSJA passed through both the state Senate and Assembly without significant opposition,3In both the state Senate and Assembly 54 members voted aye and 7 members voted nay. and Governor Cuomo’s office billed the law as containing “meaningful sentence reductions” for survivors of domestic violence. Though it has popular, bipartisan appeal, the DVSJA lacks bite sufficient to make it truly “meaningful” as a reform measure.
Why Reform Was Needed
Unique challenges exist when defending “battered women”—women who experienced systematic violence committed by an intimate partner. Oftentimes, trials of battered women involve one of two criminal charges: violence against their abuser committed in self-defense, or various criminal acts committed under compulsion from their abuser. While both allegations are covered under the DVSJA,4N.Y. Penal Law § 60.12(1) (Consol. 2019). this discussion focuses specifically on women who have killed their partner following sustained periods of domestic violence.
There are many affirmative defenses available for criminal defendants, but this list quickly narrows when battered women are put on trial for killing their abusers. Almost all women in these situations admit to having killed their partner, and typically there is no question that they did so intentionally – leaving them with few options other than to rely on a self-defense argument at trial.5Marcia Canavan, Woman’s Law 478 (2000).
To succeed on a self-defense claim in New York, a defendant must prove that they reasonably believed that the force used was a necessary, reasonable response to the use of, or imminent use of, unlawful physical force against them.6N.Y. Penal Law § 35.15(1) (Consol. 2004). This statutory definition is fairly typical, yet it poses significant barriers for battered women defendants. The imminence requirement fails to account for subjective fear faced by survivors, and survivors’ personal experiences with trauma do not track well with a jury’s estimation of the reasonableness of their actions, nor the proportionality of their response to threat.7See generally Elizabeth M. Schneider, Battered Women and Feminist Lawmaking 112-148 (2000).
In theory, this absence of a viable defense is partially filled by the DVSJA. The DVSJA is meant to provide relief in cases that lack convincing evidence to support a finding of self-defense, yet the defendants are not entirely deserving of the sentence they would otherwise receive with their criminal conviction. However, it is dangerous to paint the law’s passing as a successful solution. In reality, the DVSJA offers only theoretical relief due to the lack of meaningful guidance with respect to judicial discretion.
Nicole Addimando- A Case in Point
The issue with the DVSJA is perfectly encapsulated by a case currently pending in Poughkeepsie, New York. Sometime between sunset on September 27, 2017 and the early morning hours the following day, Nicole Addimando shot and killed Christopher Grover, her longtime boyfriend and father of her two young children. When her case went to trial, both the prosecution and Ms. Addimando’s defense team presented experts, both of whom agreed that she had been significantly abused for a long period of time. Even so, argument ensued over whether Mr. Grover had been her abuser and whether that abuse, if it existed, could serve as justification for killing Mr. Grover.
This case typifies common issues in defending battered women. The violence began with outside intervention, in this case, a call from Child Protective Services; the deceased was shot while laying down, a situation that fits poorly with most jurisdictions’ conception of self-defense; and a defendant whose abuse is disputed at every turn and blamed on another, unnamed individual.
Following three weeks of testimony and more than three days of jury deliberation, Ms. Addimando was convicted of second-degree murder and second-degree criminal possession of a firearm on April 12, 2019. Without the DVSJA, her murder conviction ensures that she would face anywhere between 15 and 25 years to life in prison.8N.Y. Penal Law § 70.00(3)(a)(i) (Consol. 2019). Should the trial court judge find her eligible for sentencing relief under the DVSJA, her sentence could potentially be reduced to anywhere between a 5 and 15 year determinate sentence.9N.Y. Penal Law § 60.12(3) (Consol. 2019).
Conclusion: How the DVSJA Has Failed Us
Nicole Addimando’s next court date is set for February.* By then both the prosecution and her defense team will have submitted their arguments against and for using the DVSJA to mitigate her sentence, and the judge should be ready to make their decision. Should the judge decide not to mitigate her sentence, it will leave supporters of the DVSJA in doubt of its efficacy: if it doesn’t apply to Ms. Addimando, who would it apply to? And even if her sentence is reduced, another question stands: why make the process so arduous and long for criminal defendants who are, arguably, the ideal candidates for mitigation?
Irrespective of how the judge rules, Ms. Addimando’s case is a useful lens for evaluating the strength of the DVSJA. The bill had broad appeal to the legislature because it is largely toothless. Although it gives trial court judges the ability to consider domestic abuse in sentencing, it by no means guarantees relief and leaves ample room for prosecutors to dispute the fact of abuse at both trial and sentencing. From a defense standpoint, the biggest benefit of the bill isn’t reliability in sentence mitigation, but rather the fact that the bill created space for mitigation completely separate from using self-defense to affirmatively deny or reduce culpability at trial.
The danger in such a toothless bill is that it placates constituents into thinking that legitimate, progressive steps have been taken, thereby placing the issue of seeking justice for domestic violence survivors to the side.
Two days after this article was published on Quorum, Judge McLoughlin denied Nicole Addimando sentencing relief under the Domestic Violence Survivors Justice Act (DVSJA). In his decision, Judge McLoughlin reasoned that Ms. Addimando was not forced to kill her abuser because she could have left well before September 27th, or earlier that night, or even moments before pulling the trigger. In Judge McLoughlin’s eyes, Ms. Addimando “did not choose these options,” thus she was fully culpable for her actions.
No matter how progressive the DVSJA could be, Judge McLoughlin’s decision makes it clear that this change in our legal framework is not sufficient to change the problems domestic violence survivors face in sentencing. In framing this shooting as a decision to stay and pull the trigger rather than to leave, Judge McLoughlin failed to recognize the subjective experience faced by a survivor of intimate partner terrorism. Instead of taking advantage of the lenient treatment created by the DVSJA specifically for situations like this, he treated the decision of whether the DVSJA should apply to Ms. Addimando just as he would evaluate a traditional self-defense claim. Without giving trial court judges like Judge McLoughlin more guidance on how, when, and why the DVSJA should be applied, there will be no systemic change.
On February 11, 2020, roughly ten months after a jury found her guilty of second-degree murder, Judge McLoughlin read Nicole Addimando’s sentence: 19 years-to-life. In doing so, he repeated once again that Ms. Addimando wasn’t forced to kill Mr. Grover, then asserted that no punishment “would be more severe than explaining to your children someday what happened and why.”
Remy Bogna, J.D. Class of 2020, N.Y.U. School of Law.
Suggested Citation: Remy Bogna, Domestic Violence Survivor’s Justice Act: Potential Mitigation, Not Guaranteed Fix, N.Y.U. J. Legis & Pub. Pol’y Quorum (2020).
- 1N.Y. Penal Law § 60.12 (Consol. 2019).
- 2Cal. Penal Code § 4801 (West 2018) (relating to parole); Cal. Penal Code § 1473.5 (West 2013) (relating to domestic violence writ of habeas corpus); 730 Ill. Comp. Stat. Ann. 5/5-5-3.1(15) (West 2020) (adding evidence that defendant was a victim of domestic violence as one of many enumerated potential mitigating factors).
- 3In both the state Senate and Assembly 54 members voted aye and 7 members voted nay.
- 4N.Y. Penal Law § 60.12(1) (Consol. 2019).
- 5Marcia Canavan, Woman’s Law 478 (2000).
- 6N.Y. Penal Law § 35.15(1) (Consol. 2004).
- 7See generally Elizabeth M. Schneider, Battered Women and Feminist Lawmaking 112-148 (2000).
- 8N.Y. Penal Law § 70.00(3)(a)(i) (Consol. 2019).
- 9N.Y. Penal Law § 60.12(3) (Consol. 2019).