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29 Berkeley J. Gender L. & Just. 72 (2014)
De Facto Witness Tampering

handle is hein.journals/berkwolj29 and id is 86 raw text is: De Facto Witness Tampering Sarah M. Buelt ABSTRACT De facto witness tampering matters because it fuels increased victim despair and danger, and its omission from discourse animates much regressive case law. Although present statutes address the most virulent and direct manifestations of witness tampering (WT), they miss the nuanced and less overt, but still dangerous, conduct that achieves the same unlawful ends. Many perpetrators of intimate partner violence (IPV) and human trafficking (HT) are exceptionally resourceful in their efforts to prevent victims from testifying against them, thus necessitating the expansion of remedial statutory schemes to recognize defacto witness tampering. After briefly examining the doctrinal and normative aspects of de facto witness tampering, the Article describes the concept in practice, including tipping point tampering-such as victim grooming, financial sabotage, and cyberharassment. The integration of human rights doctrine must be part of instrumental reform as criminalization of de facto WT comports with internationally recognized norms of state obligations to victims of gendered violence. Because IP V-HT offenders are not likely to admit their intent to silence witnesses, it is necessary to promulgate a presumptive intent standard that focuses on the resulting harm. To that end, I propose a rebuttable presumption of intent to silence a victim when a court finds that a person committed an IPV- HT act as part of a pattern of coercive control. The Rule of Law maxim must mean that the state is obligated to protect the civil and human rights of abuse survivors and this requires criminalizing the full scope of WT conduct. t B.A., Harvard Extension School; J.D., Harvard Law School; Clinical Professor of Law, Arizona State University Sandra Day O'Connor College of Law; former domestic violence and juvenile prosecutor and advocate since 1977. For helpful comments, discussion, and advice I thank Michael Berch, Monalou Callery, Mike Denton, Margaret Drew, Zanita Fenton, Jack Getman, Kelly Gier, Eugene Hyman, Melissa Hamilton, George Schatzky, Ilene Seidman, Norm Stamper, and Deborah Tuerkheimer. I also thank faculty colloquium participants at the University of Maryland School of Law, the Arizona State University Sandra Day O'Connor College of Law, and the University of Texas School of Law readers for early suggestions. For research assistance I thank law students Tahda Ahtone, Tara Cahn, Krystle Fernandez, Adriana Ovalle, and Amber Qualls, and librarians Beth DeFelice and David Gay. Thanks, also, to Kai Haswell of the Berkeley Journal of Gender, Law & Justice for his editing assistance. This Article was supported by the Arizona State University Sandra Day O'Connor College of Law Dean's Summer Research Stipend Program. BERKELEY JOURNAL OF GENDER, LAW & JUSTICE 72