Abuse victims can sit in jail for not appearing in court

Chad Frey
The Kansan

Lawanna Belgard, of Newton, didn't want to spend a week in the Harvey County Detention Facility in November. 

Belgard doesn't believe she belonged there. Belgard was arrested on a warrant, booked and detained for not responding to a subpoena in Harvey County District Court.

As a material witness in an abuse case, she did not want to see her abuser again. 

"Someone I was in love with beat me up and almost killed me," Belgard said. "I had to go to the hospital. The police got involved and a case got filed."

Belgard was subpoenaed for court, and she didn't want to go. She says she told prosecutors she didn't want to be in court.

"I had not seen my abuser since all that had happened," Belgard said. "I was going through a really rough time because of that. I did not feel comfortable (going to court). He acted like he understood but really didn't. He expected me to be there. I did not show up."

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Jail Bars

A subpoena is a legal document issued by the court at the request of someone in the case. A subpoena compels a person to produce documents or give evidence at a hearing or trial.

Her not showing up is an issue for the prosecution, which had issued the subpoena.

Lori Burns, a victims advocate with the county attorney's office, wouldn't discuss individual cases, but discussed what the county attorney's office does require of abuse victims. 

"That is the way we prove our charges, is through the oral testimony," Burns said. "We have to subpoena people the prosecutor deems as necessary so that we can go forward with our charges."

It runs much deeper than that, however.

There is a constitutional issue — namely the Sixth Amendment, which allows the accused to face their accuser. 

"The rights of the accused are greatly protected by both the US and state constitutions and those protections greatly reduce, and actually almost always eliminate, the options for victims who do not want to appear in court," said Brandon L. Jones, president of the Kansas County and District Attorney's Association.

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Jones pointed to the 2004 case Crawford v. Washington, a U.S. Supreme Court decision that upheld and strengthened the Sixth Amendment right of the accused. 

"The US Supreme Court held that there are very few, and very limited, exceptions to these requirements," said Jason Lane, Harvey County prosecutor. "The law does not provide prosecutors an option to excuse an adult witness from being in the same courtroom as a defendant in a criminal action. Because of this, our office takes many steps to institute safety measures to protect the witness."

Lane said the Harvey County prosecutor's office coordinates with law enforcement for increased courtroom security; meets with witnesses prior to hearings to discuss safety measures and expectations; attempts to resolve cases prior to testimony; and limits the time a witness is present in the courtroom with a defendant.

When a subpoenaed victim does not show up for court, a judge can issue a "material witness order." That results in an arrest and detainment. Burns said some victims sit until the next hearing date.

Belgard was arrested on a material witness warrant. She spent seven days in the Harvey County Detention Facility — the same facility her abuser was detained in.

"I was in holding the whole time, but I saw my abuser three times," Belgard said. "It brings back all of that stuff. All those feelings and emotions that I have put away. It makes my heart race, even just thinking about it."

She had just gotten a new job. Luckily, her employer understood the situation and held her job for her. 

There are no state statistics on how often someone accusing another of abuse ends up in jail or does not respond to a subpoena. In Harvey County, about 10 material witness warrants have been issued in the last five years, according to the county prosecutor's office. 

"The majority of these cases did not involve domestic violence," Lane said. "When a witness is taken into custody, the Harvey County sheriff takes steps to eliminate any contact between the witness and the defendant at the detention center. The witness is provided with an attorney to advise them of the process. Our office then meets with the attorney and witness to formulate a plan to ensure their presence at the hearing and allow the witness to be released from custody."

"It is an unfortunate situation when a victim has to be jailed for failing to comply with a court issued subpoena, but without a victim’s testimony, it is extremely difficult, and often impossible, to convict the abuser and hold him/her accountable," Jones said. "The ultimate goal of a prosecutor in cases such as these is to hold the offender accountable in an effort to protect the victim and his/her safety."  

According to staff of the Kansas Coalition Against Sexual and Domestic Violence, stories like that of Belgard have a chilling effect on the abused — it makes it less likely that someone will report abuse and start a legal proceeding.

Lane would like to see a change — for there to be some workable solution for adult abuse victims who do not want to be in the same room as their abuser. 

" It is my hope that one day we will see changes that assist in protecting our victims better, while still guaranteeing constitutional rights," Lane said. 

Renee Fensky responded to a subpoena — namely because she does not want to end up in jail — and was forced to see her abuser. She is in the middle of a stalking case, something she really just wants to put behind her. 

"I want to see a change of some sort. Victims need to feel more support," Fensky said. "... I am subpoenaed, if I don't go, I can be jailed."  

She does not want to face the man who she says stalked her for two years. She says that COVID-19 precautions mean social distancing rules, and that means her victim's advocate cannot screen her from her stalker. 

"I get to watch him walk in, look at me. I can feel him looking at me. And then he says 'Hi.' He is not supposed to talk to me," Fensky said. "I have to be in that courtroom, and I have a protection from stalking order."

She also gets frustrated with the case being moved, and each time a hearing comes up she can be subpoenaed — meaning another court date. 

That means likely seeing the man who victimized her, and a day off of work. 

"Every situation is different. Unfortunately if the defense asked for a continuance and it is granted, that is how things get moved," Burns said. "I know it can be frustrating for a victim because they can get subpoenaed multiple times and that can get frustrating for the victim. But if we have to have them there for the hearing, then that is what we have to do." 

Fensky can't get over the feeling of being forced to be there — because of the subpoena that is served. And she can't imagine what it is like for others. 

"Victims that don't cooperate, they do not want to see their offender," Fensky said. "Then their case gets dropped or it's over with. ... He has just been a creep and stalked me. I can't imagine the victims that have been raped, or beaten or emotionally abused for years and then have to sit in front of them."

Fensky believes there is a solution — one discovered during COVID-19. 

Schools moved to online, and businesses across the country started meeting via internet conference calls. Fensky would like to see that technology used for court. 

"If we have the capability to do Zoom court, and lawyers don't have to be there, why can there not be a similar situation for victims," Fensky said. "If they want, or choose to not be in the same room as an offender, why can't that be?"

There are procedures for juveniles to video record testimony for abuse cases, however, those same protections do not extend to adults. According to the  Kansas Coalition Against Sexual and Domestic Violence, the Kansas Legislature discussed those same protections and rights for adults years ago, but did not pass any legislation at that time.

According to Jones, it can not be due to the Sixth Amendment

"There is no option for adult victims to use recorded or videotaped testimony in place of them actually appearing in the courtroom to testify in person," Jones said. "This is because of the 6th Amendment to the US Constitution known as the confrontation clause which includes, among other rights, that the accused shall enjoy the right to confront with witnesses against him or her."

Lane said that the Sixth Amendment, the U.S. Supreme Court decision and the sensitivity of abuse cases leave prosecutors with few options — and that prosecuting these cases can be very painful for the victims. 

"[We] understand a victim of domestic violence can suffer great trauma due to the acts of an abuser," Lane said. "We make substantial efforts to limit the victim’s exposure to more trauma during the criminal proceedings. In doing this, we also must prioritize our main duty to protect the safety of the community as a whole. Unfortunately, these interests can come into conflict with each other. In certain situations, we must make the difficult decision whether to issue a material witness warrant or not proceed with a criminal case against a person that creates a serious safety risk to the community."