The Prosecution of Noor Salman, Pulse Shooter’s Widow, Highlights the Criminalization of Domestic Abuse Survivors

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From The Intercept:

The first time Noor Salman told her aunt about the abuse she’d suffered at the hands of her husband was also the first time she found herself free of him. It was June 2016, just five days after her husband, Omar Mateen, had walked into Pulse nightclub in Orlando and opened fire, killing 49 people and injuring many others before he died in a shootout with police. Salman and her aunt, Susan Adieh, had driven the 13 hours from Port St. Lucie, Florida, where Salman was kept under lock and key by her in-laws in the shooting’s aftermath, to Adieh’s hometown of Batesville, Mississippi. When they arrived in Batesville, Salman recalled all the times that he had punched her, called her names, and sexually assaulted her during their marriage.

“Just like a maid in the house — that’s what her life was with him. And sex when he needed it out of her,” Adieh told The Intercept. “I went crazy when she told me all this.”

Now, nearly two years later, Salman is on trial for the only charges being brought in relation to the Pulse massacre. She has been charged with aiding and abetting her husband’s support of a foreign terrorist organization, as well as with obstruction of justice. Jury deliberations in her case began Wednesday.

While questions remain about the facts of the case, the abuse Salman endured is indisputable — and it highlights the widespread phenomenon of domestic abuse victims being prosecuted and incarcerated for acts committed by their abusers, or for crimes they were forced into. Both prosecutors and Orlando community members understandably want to seek justice for Pulse victims. But Salman’s family and advocates for defendants in situations like hers say that few are stopping to ask the question: Why is a domestic abuse victim being tried for crimes that her abuser committed?

Gail Smith, the director of the Women in Prison Project, a subdivision of the Correctional Association of New York, says that Salman is far from the only abuse victim she has seen prosecuted when the perpetrator of the crime has died or isn’t available. “The prosecution will find somebody to punish,” Smith told The Intercept. Abuse victims often end up being that “somebody.”

IN COURTS AROUND the country, abuse survivors like Salman regularly face criminal charges. While Salman’s case is unique in its focus on an alleged act of terrorism, as opposed to felony murder or other charges, the underlying phenomenon of abuse-to-criminalization is remarkably commonplace. Almost 80 percent of women who are currently in federal and state prisons were victims of physical or sexual abuse before their incarceration. And the Correctional Association of New York, which has been monitoring New York prisons since 1846, estimates that around 75 percent of incarcerated women have experienced severe abuse at the hands of an intimate partner during adulthood.

There’s no good way to measure how many of those women end up in prison as a result of charges directly related to that abuse, but many advocates who work with criminalized abuse survivors argue that it’s the majority. The difficulty in tracking such cases stems from a host of factors, including that not all victims of abuse realize they’ve experienced it until years later, meaning it isn’t reflected in court filings or other official documentation.

There are a number of different scenarios that wind up with abuse survivors on the defense side of a courtroom. Perhaps the most obvious examples concern people who are prosecuted for retaliating against their abusers in acts of self-defense. In another high-profile Florida case, Marissa Alexander was convicted in 2012 of aggravated assault for firing a warning shot at her husband, whom she said in court had been abusive. But there are other situations that lead to charges against abuse victims: Many women are charged with failure to protect their children from their abusive partners, or for failure to report the criminal activity of their abusers to authorities. Others, like Salman, are charged with aiding and abetting their abusers in crimes they didn’t commit themselves. In many of these latter cases, victims face prosecution for felony murder if they were present when abusive partners killed their children, family members, acquaintances, or strangers. The charges are often brought even when the perpetrator of the violence is dead.

Colby Lenz works with the California Coalition for Women Prisoners and Survived and Punished, two legal and legislative advocacy groups for criminalized abuse survivors. One of the women Lenz works with was trying to escape her abusive husband with their son when the husband killed the son. She received a life sentence without parole for a felony murder charge.

“You hear a story like hers, and you’re like, ‘Oh my God … how could this be real?’” says Lenz. “And then you hear a hundred more stories that are just as absurd, that are so, so similar.”

Smith, who has been working with incarcerated women for over 30 years, described the case of a young mother who was forced to accompany her abusive partner to an armed robbery he had planned and serve as a lookout. When he died in a subsequent shootout with the police, she was was charged with felony murder for his death.

“He controlled her completely, and he forced her to accompany him,” Smith told The Intercept. “She was a hostage, basically. She did not have a choice about this. That’s an example of how a prosecutorial mindset can punish someone who has essentially done what she had to do in order to not die at the hands of her abuser.”

Advocates say that prosecutorial discretion allows negative public attitudes toward domestic violence victims to enter the courtroom. When presenting arguments to a judge or jury, prosecutors often engage in victim-blaming and cast doubt on abuse allegations, for instance, asking victims why they never told family members or filed for a protective order.

One attorney who worked as a public defender in Florida for over 25 years told The Intercept that when there are prior reports of violence and medical records that support a victim-defendant’s claims of abuse, the litigation is easier, and a prosecutor sometimes drops the case or settles it quickly. (The attorney declined to be named in order to protect her clients.) Other times, when there isn’t much concrete documentation of the abuse itself — no reports of injuries or protective orders — a defendant’s victim status becomes contested and litigation can go on for years.

However, even in cases in which there is documentation, cultural and public misconceptions about domestic violence can result in a conviction, or at least a very drawn-out case. “I worked with one woman who had just gotten out of the hospital due to severe abuse and subsequently, used a knife to defend herself in a moment of abuse, killing her husband in the process,” says the former public defender. “We used self-defense and battered women’s syndrome [as legal tactics], and the case ended up being dropped by the state, but not until after several trials.”

THE CENTRAL DISPUTE in Noor Salman’s case is whether she actually knew about Omar Mateen’s plans to carry out the attack on Pulse. U.S. attorneys have charged Salman with aiding and abetting her husband in material support of a foreign terrorist organization (in this case, the Islamic State), as well as with obstruction of justice, for allegedly trying to mislead the FBI in statements she had given them in the hours after the attack. The FBI agent who had initially questioned Salman said in court that during the interrogation, she seemed too calm and uninterested in what her husband had just done. Prosecutors have described Salman’s actions as “cold,” and one of them said during opening statements earlier this month that Salman had given Mateen “a green light” to commit the massacre.

To counter this narrative, Salman’s defense lawyers have argued that she had been unaware of Mateen’s plans and was herself a victim of his violent tendencies inside their home. “Omar Mateen is a monster. Noor Salman is a mother, not a monster. Her only sin is she married a monster,” one of Salman’s defense attorneys, Linda Moreno, told jurors during opening statements. Her defense team submitted testimony from a nurse on Salman’s behalf, which read: “Her behavior was entirely consistent with severely abused women who are completely controlled by a highly abusive male partner.” Salman’s attorneys also emphasize that the FBI had questioned Salman for 17 consecutive hours after the massacre without a lawyer present and without reading her Miranda rights.

During the long interrogation session, prosecutors said Salman had made a variety of contradictory statements, including some that suggest she had known of Mateen’s plans to attack Pulse in advance. However, research has shown that the trauma of domestic violence can lead to memory lapses, emotional numbness, and difficulty concentrating, among other effects.

Regardless of whether the jury concludes Salman had been aware of her husband’s plans, Mateen’s history of abuse is well-established. Mateen’s first wife, Sitora Yusufiy, described to The Intercept in excruciating detail the abuse she had faced at the hands of Mateen two years before he met Salman.

According to Yusufiy, he had controlled every aspect of her life. Just a few months into their short marriage, Mateen started hitting her and restricting her communication with her family. The only person he would allow her to contact on a daily basis was her cousin; even then, he’d start hitting her while she was on the phone so that the conversations didn’t go on for too long. As the abuse got worse, he restricted her outside communication even further to make sure she wouldn’t be able to tell anyone about it.

“As time went on, I was really feeling trapped — and I was trapped,” said Yusufiy. “I was literally being kept hostage.”

Once, when Yusufiy was on the phone with her mother, Mateen sat in the same room and watched her to ensure she didn’t say too much. When her mother asked if her husband had hit her, she started crying. “Omar saw me crying. He came over and slapped me so hard, the phone fell out of my hand and broke, and I hit my head against the headboard,” she said.

“He would do a lot of things behind my back that I had no clue about, that he wouldn’t ever tell me, and I wouldn’t question it because he would abuse the crap out of me if I did,” Yusufiy told The Intercept. “He would definitely go out [and cheat] and tell me that it was his best friend, or his group of cops that he was friends with.” With the help of her family, Yusufiy left Mateen nine years ago. But she was forced to confront again the trauma of her past abuse in the aftermath of the shooting and the media scrutiny it drew.

Court filings, conversations with Salman’s relatives, and Salman’s own public statements about her marriage to Mateen indicate she suffered from the same kind of physical and psychological abuse that Yusufiy did. According to court filings, Mateen beat Salman while she was pregnant with their son, forced her to have sex against her wishes, and tried to choke her. Mateen also tightly controlled Salman’s daily activities and threatened to kill her, among other psychological abuses. In a domestic violence “danger assessment” submitted to the court, Salman marked that she believed he was actually capable of killing her. According to Adieh, Salman’s aunt, he had threatened to take away their child or kill her family members if she spoke about the abuse to others.

Yet early media coverage of Salman’s trial, when it discussed her abuse at all, tended to frame it as a hurdle to seeking justice in the case. For instance, the New York Times said in one article that the abuse would be “a challenge for prosecutors” because Salman’s attorneys were “likely to portray her as a victim of an abusive husband who kept her in the dark about his deadly plot.” A reporter for the Orlando CBS-affiliate WKMG wrote, “One question prosecutors may try to address is, does Salman’s fear as a victim of domestic violence give her a pass to alert authorities to Mateen’s behavior and plans to harm others?”

Advocates found this framing absurd: Anne Patterson, division director of STEPS to End Family Violence, a New York City-based organization that provides legal services, referrals, and counseling to battered women defendants, said prosecutors are supposed to pursue justice and public safety. “Referring to who she is, and her survivorship, as a prosecutorial challenge? That doesn’t seem to be connected to the pursuit of justice or public safety,” Patterson said. “It feels to me like that’s only the pursuit of victory, of a prosecutorial win.”

Many mass shooters have later been revealed to have had a history of abusing their intimate partners, but the media often covers this correlation as though the partners should have been able to stop their heinous acts. Yusufiy, Mateen’s ex-wife, said she has received her share of victim-blaming, too, for not pressing charges against Mateen during their marriage. “People have said if I had pressed charges, he would have never been allowed to own a gun,” she said. “So I have to live with that.”

ADVOCATES SAY THAT prosecutors could change the way that courts handle abuse victims in these cases, because they have the ability to intervene early and bring lesser charges, or none at all. According to Patterson, it would be particularly beneficial to survivors if prosecutors conducted more careful assessments during arraignment to determine the role abuse may have played in the defendant’s case. In lieu of prosecutorial reforms, however, criminal defense attorneys have to use creative legal strategies to make a strong case for survivor-defendants.

When defendants are being charged for violently retaliating against their abusers, defense attorneys have had some success by invoking self-defense or “stand your ground” laws, alongside testimony on battering and its effects, to illustrate that their defendants had a reasonable fear for their lives. Sue Osthoff, director and co-founder of the Philadelphia-based National Clearinghouse for the Defense of Battered Women, said that the battered women’s testimony has seen increasing acceptance in courtrooms since its first use in the late 1970s.

Experts also point to the “duress defense” as a possibility. In a recent New York Times op-ed about Salman’s trial, Georgetown law professor Deborah Epstein and victim advocate Kit Gruelle explained that “although rarely used, this defense excuses a person from criminal responsibility for actions if she had a well-grounded fear of incurring serious bodily injury for refusing to act and if she had no plausible hope of escaping the threat.”

Advocates have urged lawmakers to help address the harm that domestic violence inflicts before abuse victims encounter the criminal justice system. “If we had better, affordable legal resources that were also better trained in the issues surrounding domestic violence and so on, then our jails and prisons would be less packed with survivors,” said Lenz, of Survived and Punished.

In many of these prosecutions — especially in cases when victims are charged with crimes they didn’t even commit — victim-defendants themselves are in fact at the receiving end of the same kind of violence their abusers wrought on the world outside of their relationship.

“I have tremendous compassion for people who want there to be some accountability for the pain that they’ve experienced following the Pulse massacre,” said Patterson, from STEPS. “But they’re going about it all wrong, and it’s completely ignoring the fact that the pain that this man inflicted on this nightclub was pain that his partner has been enduring for, I imagine, the length of their relationship.”

Though Salman herself is not accused of any violence, protesters gathered outside of the courthouse in Florida during jury selection earlier this month to demand that Salman receive the death penalty for her husband’s crimes. (“FRY HER TILL SHE HAS NO PULSE,” one sign reportedly read.) When Salman was arrested in January 2017, Orlando Police Chief John W. Mina said, “Today, there is some relief in knowing that someone will be held accountable for that horrific crime.” Salman has been in custody — and unable to see her 5-year-old son — since that time.

“To make decisions about prosecution and sentencing without a deep understanding of how domestic violence works, the dynamics of that violence, is fundamentally unfair to survivors,” says Smith, of the Women in Prison Project. “We have a punitive legal system when it comes to criminal cases. It’s not so much about long-term justice for the community and reducing harm and addressing harm — it’s about punishment.”