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 de facto 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 IPV-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.
Sarah M. Buel,
De Facto Witness Tampering,
29 Berkeley J. Gender L. & Just.