New York Lawmakers Fear Court May Render Domestic Violence Survivor Law ‘Meaningless’
Nikki Addimando, convicted of second-degree murder for the death of her boyfriend, whom she said abused her, petitioned to have her sentence reduced under the 2019 law. But a judge ruled against her. If that ruling is affirmed, state legislators say, it will be ‘insurmountably difficult’ for survivors to ever benefit from the law.
Legislators in New York are urging the courts to apply a 2019 law, meant to provide sentencing relief to some domestic violence survivors, in the case of a woman convicted of killing her boyfriend, who she said repeatedly abused and assaulted her.
Fourteen legislators, all of whom sponsored or supported the Domestic Violence Survivors Justice Act, have submitted an amicus brief in Nikki Addimando’s appeal, stating that her case “presents the first opportunity for the Appellate Division to consider the application of the DVSJA to a victim of domestic violence.”
Under the act, a person who is convicted in criminal court can petition the judge for a hearing to consider whether abuse played a significant role in their participation in the crime. If the judge determines abuse was a significant factor, the judge can issue a shorter sentence than the one recommended by state sentencing guidelines.
Addimando, who was convicted in April 2019 of second-degree murder for the death of Christopher Grover, filed a motion in September of that year for consideration under the act. At trial, she had testified for three days about Grover’s violence, including sexual assault, beatings, burnings, posting videos of her abuse to a porn site, and repeated death threats. Multiple witnesses testified about seeing her injuries, including black eyes, bruises, and burn marks.
At her DVSJA hearing, Addimando’s lawyers submitted medical records that had been excluded at trial, as well as hours of testimony from two therapists and a psychiatric expert. Nonetheless, Dutchess County Court Judge Edward McLoughlin ruled against her in February, saying that Addimando’s history of abuse was “undetermined and inconsistent” and that “the nature of the alleged abusive relationship … is undetermined.” He stated that she had “a tremendous amount of advice, assistance, support and opportunities to escape her abusive situation” and suggested that she could have left Grover earlier in the relationship. At sentencing, he reiterated this belief before sentencing her to 19 years to life.
In their amicus brief, the legislators, who include lead sponsors Assemblymember Jeffrion Aubry and Senator Roxanne Persaud, wrote that the judge’s reasoning is a reversion to “outdated ideas of domestic violence and discredited theories in which victims of abuse are faulted for not leaving their abusers or fighting back to protect themselves.”
They went on to warn that “if the trial court’s decision not to apply the DVSJA is upheld, the DVSJA will be rendered effectively meaningless. Indeed, if the trial court’s rationale is affirmed, it may become almost insurmountably difficult for most survivors of domestic violence to gain the intended benefit of the Act.” Domestic violence advocacy organizations and the New York City Bar Association submitted additional amicus briefs on Addimando’s behalf.
“The whole point of the legislation was to cover cases such as this,” said Senator Brad Hoylman, who co-sponsored the act and signed the amicus brief. “As a legislator, you have to ask yourself why isn’t this law being applied in circumstances like this?”
Nearly 12 percent (or 11,200 women) of women in state prisons have been convicted of murder, according to the Bureau of Justice Statistics; the government does not have data on how many of those women had previously been abused by the person they killed. Snapshot studies suggest that stories like Addimando’s are not uncommon. A 2012 report from the Bureau of Justice Assistance, part of the Department of Justice, found that 77 percent of women in jails experienced partner violence and 86 percent had experienced sexual violence prior to incarceration.
A Yale study of violence in abusive relationships found that the most common reason women used violence was to protect themselves (or their children) from physical harm while previous studies had shown that men were more likely to do so to maintain or regain control of a relationship. Of the 95 women surveyed, 61 percent had been injured by their partner within the previous six months and 75 percent stated that they had used violence in self-defense.
Few other states have legislation allowing judges to consider abuse when meting out prison sentences for abuse survivors. In California, Assembly Bill 593, passed in 2012, allows incarcerated abuse survivors to challenge their incarceration if their original trial had limited or no expert testimony about abuse. The law is limited to those convicted before Aug. 29, 1996, an attempt to correct the lack of understanding present in many courtrooms during earlier time periods. The law does not include a tracking mechanism and it is unclear how many incarcerated survivors have petitioned the courts under this law—and how many have been granted a new trial.
A 2015 Illinois law includes abuse in a list of potential mitigating factors that judges should consider before issuing a sentence. However, the legislation does not include a tracking mechanism, so no one knows how many survivors have applied for resentencing—and how many have been resentenced.
Rachel White-Domain, an attorney at the Illinois Prison Project, knows of only two survivors who have been resentenced and released. “Despite good intentions, the law failed to provide an effective avenue for release for incarcerated survivors,” she told The Appeal.
In Oklahoma, which has long held the country’s highest rate of women’s incarceration and one of the highest rates of domestic violence homicides, a similar bill died in the House Judiciary Committee last year.
Courts in New York have been slow to allow resentencing for abuse survivors under the new state law. According to local attorneys and advocates, two people have been resentenced thus far: On Aug. 26, Mulumba Kazigo, who spent 14 years in prison for killing his abusive father, became the second abuse survivor to be resentenced under the act. A state Supreme Court justice vacated his 20-year sentence, resentencing him to five years, enabling his immediate release.
Hoylman acknowledges that the slowdown and shutdown of courts because of the COVID-19 pandemic may have affected the numbers of those resentenced so far. But he still lamented the dearth of cases in which the law has been applied. “We did pass the bill in 2019,” he said. “I would have expected more progress at this point.”