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Criminal Litigation

Prosecuting Domestic Violence Cases

By Farrah Champagne – September 17, 2015


Last night I heard the screaming
Loud voices behind the wall
Another sleepless night for me
It won’t do no good to call
The police,
Always come late
If they come at all


And when they arrive
They say they can’t interfere
With domestic affairs
Between a man and his wife
And as they walk out the door
The tears well up in her eyes.


Last night I heard the screaming
Then a silence that chilled my soul
I prayed that I was dreaming
When I saw the ambulance in the road
And the policeman said
“I’m here to keep the peace
Will the crowd disperse
I think we all could use some sleep”


—Tracy Chapman, “Behind the Wall,” on Tracy Chapman (SBK April Music Inc./Purple Rabbit Music 1983).


Domestic violence is a serious crime, and it should be recognized as such by judges, law enforcement, and prosecutors. The best way to attack this problem is through the criminal justice system. If we as a society treat domestic violence the same way we treat any other violent crime against a stranger, the problem will likely decrease. According to attorneys who prosecute domestic violence, “there’s one thing that batterers take seriously: a brush with the law.” See “Giving Batterers Their Due: Two Vital Bills Aimed at Curbing Domestic Violence Could Get Lost in Shuffle,” L.A. Times, Aug. 27, 1992, at B6.


This article argues that the most effective method of domestic violence reduction is mandatory arrest and no-drop prosecution policies.


The History of Domestic Violence
The Supreme Court of Mississippi, in 1824, acknowledged that a husband had the right to use physical means to chastise his wife.The holding in the case started a countrywide acceptance of physical chastisement from husband to wife. See Mary E. Asmus Tineke, “Prosecuting Domestic Abuse Cases in Duluth: Developing Effective Prosecution Strategies from Understanding the Dynamics of Abusive Relationships,” 15 Hamline L. Rev. 115, 116 (1991) (citing R. Emerson Dobash & Russell Dobash, Violence Against Wives: A Case Against Patriarchy 62 (1979)). A husband was permitted by law to hit his wife “without subjecting himself to vexatious prosecutions for assault and battery, resulting in the discredit and shame of all parties concerned.” Thurman v. City of Torrington, 595 F. Supp. 1521, 1528 (D. Conn. 1984). The evolution of “permissible wife-beating” defined the type of chastisement permitted, the severity of chastisement permitted, and the timing of the chastisement permitted. See Asmus Tineke, supra, at 116.


As the years passed and women’s rights advocates became more prominent, the notion of permissible physical chastisement from husband to wife became an “increasingly outdated misconception.” Craig v. Boren, 429 U.S. 190, 198 (1976). The premises of the right of chastisement were looked upon as “archaic and overbroad,” and courts rejected it as unconstitutional. Thurman, 595 F. Supp. at 1528 (citing Crawford v. Cushman, 531 F.2d 1114 (2d Cir. 1976)). The court in Thurman stated that a husband had no right to abuse or endanger a woman merely because she was his wife. These ideals were part of a culture that mirrored the reluctance of the courts when faced with opportunities to intervene in domestic violence incidents.Not only were courts reluctant to interfere; law enforcement officials were also hesitant to intervene between a husband and wife in conflict. The trend continues today, and pressure needs to be placed on judges, legislators, police, and prosecutors to modify the way domestic violence incidents are handled. In addition, officials need to receive proper education so they will have a better understanding of the dynamics of intra-family violence.


Many jurisdictions still do not treat domestic violence as a serious crime, and very few cases are tried even after the police have become involved in a violent family situation. Oftentimes the legal system fails to assist victims of domestic violence until they are seriously injured or have been killed. Ann Jones states the problem accurately:


Today in the eyes of the law, any assault is both a criminal offense and a personal tort, or wrong; any assault may be the basis for a criminal prosecution or a civil action, or both. If you attack me in the street, the state can put you on trial and send you to jail for assault and battery, and I can sue you for damages. But in a great many jurisdictions, even today, a domestic assault is not regarded as a real assault—that is, not really criminal. When police refuse to arrest, prosecutors to prosecute, and judges to sentence a man because the victim he assaulted is (or was) his wife or girlfriend, the state redefines this criminal assault against a woman as a special category of violence immune from criminal law. The state magically transforms a crime into a non-crime.


Malinda L. Seymore, “Against the Peace and Dignity of the State: Spousal Violence and Spousal Privilege,” 2 Tex. Wesleyan L. Rev. 239, 278 (1995) (citing Ann Jones, Next Time, She’ll Be Dead: Battering and How to Stop It, 51–52 (1994)).


It is time that the criminal justice system recognize that domestic violence is a serious problem and take serious measures to address the issue.


Why Victims Recant and Refuse to Cooperate
“The mystery in this case, as in all battered woman cases, is why [she] remained with [him] despite repeated abuse.” Dunn v. Roberts, 963 F.2d 308, 313 (10th Cir. 1992).


Battered women are often unaware of the realities of the criminal justice system. They do not understand the process, they are often unprepared for the amount of time it takes to see a case through to resolution, and they often do not get the opportunity to provide much input during the plea negotiations or sentencing hearings. See Angela Corsilles, Note, “No-Drop Policies in the Prosecution of Domestic Violence Cases: Guarantee to Action or Dangerous Solution?,” 63 Fordham L. Rev. 853, 870 (1994). As a result, they become uncooperative with prosecutors when it comes time to hold their abusers accountable.


Victims are often financially dependent on their abusers. “The most compelling reason for an abused woman to remain in the home subject to more abuse is her financial dependency.” Id. Abusers use power and control to isolate their victims. They isolate them from family and friends, and use economic means to control them. Women with children are particularly vulnerable to financial dependency. Obtaining child custody, child support, and family maintenance can assist victims in escaping abuse and becoming economically self-sufficient.


Victims often yield to their abusers’ need for power and control.Abusers use power and control to maintain a level of fear in their relationships. They fill their victims with fear and anxiety in order to maintain a stronghold over their lives. See Asmus Tineke, supra, at 130. One arrested abuser explained his strategy for maintaining power and control over his victim:


When I think about how it all happened it seems almost as if I planned it. Right from the beginning I started choosing her friends, then her clothes, even her job. It’s like in boot camp training, you know, tear them down then build them back up but build them back up as Marines. Well, she was friendly, outgoing, the life of the party, when I met her. But I just slowly took all that away from her until she only had me. By the time I hit her I knew she wouldn’t leave me. But I kept insisting that all the things I was doing—smashing things, threatening her, grabbing her, even locking her in the bedroom—were her fault. She was pushing me, making me jealous, defying me. When I was arrested she was actually more afraid about what would happen than me. I was mad, I was pissed as hell—but she was scared.


Id. at 131.


Many victims will even testify on behalf of their abusers.The willingness of a victim to assist her batterer often leads to victim blaming.The victim’s family members will shame her for the relationship; the police will report her unsavory behaviors; the judge may dismiss the case entirely because of her ambivalence; and the jury may view her as the one who provoked the abuse.A prosecutor must work to create solutions to these complex problems while seeking justice for the victim and the community.


Victims fear retaliation. Some women refuse to cooperate with the prosecution of their abusers because they believe that prosecution does not provide a reliable means of protection from their batterer. The statement below is from a victim of domestic violence as it concerned her willingness to cooperate.


Tina: I was afraid every second. If I refused to testify he would maybe not blame me for getting arrested. If I testified and he didn’t get convicted he’d have more power over me than ever before. If I testified and he didn’t get jail time I’d be in the same boat. It seemed like there were about eight scenarios that would go against me and only one that would work out.


Id. at 130.


Prosecutors view women who wish to drop charges against their abusers as “reluctant” witnesses. Id. These women are in extraordinary situations, however, which require them to consider their safety and the safety of their children when making decisions about whether to cooperate with the prosecution of their abuser. If victims believe that dropping charges will make them safer, they will drop the charges and sometimes become uncooperative with prosecutors.


Mandatory Statewide Policies


Mandatory arrest policies. Mandatory arrest policies represent significant progress in a state’s recognition that domestic violence is a crime that must be taken seriously. Mandatory arrest policies require a police officer to arrest a person who is the suspect of domestic violence abuse, regardless of whether the victim consents or objects. At least 15 states and Washington, D.C., have either mandatory or limited-discretion arrest policies for domestic violence. See Marion Wanless, Note, “Mandatory Arrest: A Step Toward Eradicating Domestic Violence, But Is It Enough?,” 1996 U. Ill. L. Rev. 533, 534 (1996). Most states allow an officer to arrest a person without a warrant if there is probable cause to believe that an act of domestic violence has occurred. Some wonder, however, whether the mandatory policies are effective, especially when the officer has no ability to exercise his or her discretion in the matter. See Linda G. Mills, “Killing Her Softly: Intimate Abuse and the Violence of State Intervention,” 113 Harv. L. Rev. 550, 558 (1999).


Mandatory arrest laws require police to arrest someone at the scene of a domestic violence incident whether the officer believes arrest is appropriate or not.These mandatory policies are necessary because leaving the decision to police officers about whether to arrest someone at the scene of a domestic violence incident often results in no arrest at all. Sometimes an officer will incorrectly determine that there was a mutually combative situation and leave the victim with the abuser. This level of discretion can result in further harm and possibly in the death of the victim. Mandatory arrest deescalates violent situations and creates a level of accountability for abusive people.


No-drop prosecution policies. No-drop prosecution policies require the state prosecutor to go forward with the prosecution of a domestic violence perpetrator regardless of whether the victim wants to continue with the process or not.Prosecutors will often submit police officer testimony and excited utterances made by the victim during or shortly after the attack. In addition, prosecutors may subpoena reluctant victims or even imprison them if they refuse to testify.No-drop policies serve as a reliable form of protection for victims of domestic violence. Batterers use power and control in their abusive relationships, and the victims are often unable to escape. Thus, prosecution of domestic violence perpetrators protects not only victims of domestic violence but also society. Although prosecuting abusers may not always seem to be the safest solution for victims, it sends a clear message to the perpetrators that crime will not be tolerated.


Prosecutors who employ no-drop policies sometimes strongly encourage victims to comply with the prosecution of their abusers. Society ultimately benefits from the sacrifices made by the victims, because when victims participate in the prosecution of their abusers, gender-based violence is minimized and victims become empowered. This is not to say that prosecutors should forge ahead without considering the desires of the victims. Prosecutors should consult with the victim, learn about the actors in the case, and discover any concerns that the victim may have that may either prevent her from leaving the relationship or from assisting in the prosecution. Jennice Vilhauer, “Understanding the Victim: A Guide to Aid in the Prosecution of Domestic Violence,” 27 Fordham Urb. L.J. 953, 956 (2000). Prosecutors can then provide the victim with education and options, which will empower her and encourage greater cooperation.This assistance from prosecutors will help the victim to feel protected rather than feeling as though the state is exercising the form of power and control that her abuser was exercising. See Erin L. Han, “Mandatory Arrest and No-Drop Policies: Victim Empowerment in Domestic Violence Cases,” B.C. Third World L.J. at 128 (2003).


Although some prosecutors have jailed victims who refuse to testify, this measure should be used rarely and only in the most serious of circumstances.If this avenue of punishment is applied unnecessarily, society is not helped; it is harmed. When one of society’s most vulnerable citizens is treated more harshly by the state than by her abusers, fear and mistrust of the system ensue.Policies that are extremely harsh and coercive do not empower the victim.Instead, the victim is re-victimized and disempowered. Id. at 184. It has been argued that when women take control of their relationships and decide independently whether to include the criminal justice system, they are successful at stopping the abuse and can resume healthy relationships with their former abuser. Donna Coker, “Crime Control and Feminist Law Reform in Domestic Violence Law: A Critical Review,” 4 Buff. Crim. L. Rev. 801, 826 (2001). As Donna Coker states:


[p]rosecution (or other state intervention) is no guarantee that the violence will stop. A woman who opposes prosecution is taking a calculated risk, as is the woman who actively pursues prosecution. Neither she, nor the judge or the prosecutor, can know with certainty which action will result in less violence. The problem is not that the batterer’s coercion is not real, but rather that it is not always clear that the criminal justice system offers a better alternative.


Victims of domestic violence who decide to go forward with the prosecution of their abuser are often empowered and supported. Testifying against her abuser can shift the balance of power in the relationship and possibly decrease future violence. Vilhauer, supra, at 961.


Conclusion
Domestic violence perpetrators use power and control to coerce their victims into compliance. When an outbreak of family violence occurs, the victims often call the police for emergency intervention. Once the abuse has stopped, however, and the batterer has apologized profusely, given gifts, and promised to change, many victims of domestic violence reunite with their batterers and refuse to cooperate with prosecutors. This lack of cooperation causes challenges for prosecutors who want to provide safety for the victim and bring the perpetrator to justice. If prosecutors simply bend to the wishes of the victims who want to drop the charges, batterers will be permitted to exercise power and control through the justice system. Mandatory arrest and no-drop policies have been employed in many jurisdictions and have created positive changes for victims, for communities, and sometimes even for abusers. These statewide policies will help ensure that batterers recognize that intra-family violence will not be tolerated.


Keywords: criminal litigation, domestic violence, prosecution, no-drop policies, mandatory arrest


Farrah Champagne is a recent trial advocacy LLM graduate with a certification in criminal trial advocacy from the American University Washington College of Law. She is also a coeditor-in-chief of the Criminal Litigation Committee newsletter.


 
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