Angela Corsilles, "No Drop Policies in the Prosecution of Domestic Violence Cases: Guarantee to Action or Dangerous Solution?," Ford. L. Rev., December 1994, Sections I & II
I. An Overview of No Drop Policies
Th
A no drop prosecution policy may be defined both
as a statement declaring that the state will not drop a domestic violence
case due to victim nonparticipation and as a practice and protocol for enforcing
that statement.
As a statement of intent to continue prosecution in
spite of the victim's wishes, a no drop policy clarifies the nature of the
relationship between the prosecutor and the victim. [FN28]
First, the policy underscores the fact that once charges are filed,
the state, and not the victim, becomes the party. [FN29] Likewise, the policy emphasizes, somewhat redundantly, that the
prosecutor controls the direction of the prosecution; the victim cannot, for
instance, decide to drop a case. [FN30] On
another level, the policy represents official acknowledgment of the fear and
ambivalence victims often feel when asked to testify against their batterers.
[FN31] Lastly, a no drop policy
conveys an institutional commitment *859 on the part of the criminal justice system to treat domestic
violence as a serious crime. [FN32]
In practice,
a no drop policy regulates the use of prosecutorial discretion in instances
where the victim declines to participate. [FN33] The policy often comes into
play after formal charges have been filed and the victim has indicated that
she will not support the prosecution. [FN34] Under a no drop policy, prosecutors
often are directed to: 1) pursue most
cases notwithstanding the reluctance of the victim; [FN35] 2) stress prosecutorial
control of the case to the victim; [FN36] and 3) facilitate victim cooperation
with state efforts. [FN37]
Strategies
for effectuating these directives vary among jurisdictions. In terms of formality, policies range from
unwritten rules that are followed as matters of office custom, [FN38] to elaborate
written protocols *860 that specify
whether and under what circumstances prosecutors may drop a case. [FN39]
Some policies, for example, simply state that the prosecutors should
not move to dismiss charges because of a victim's reluctance to proceed. [FN40]
Other policies further specify the steps that should be taken, or conditions
that should be fulfilled, before the prosecutor can recommend dismissal. [FN41]
In conjunction with or as part of such policies, some jurisdictions
also address the issue of compelling victims to testify in court through the
use of subpoenas. [FN42] The different
approaches taken by five jurisdictions are examined below.
Under the
no drop policy in Jefferson County, Kentucky, if a victim fails to appear
in court or changes her mind, the charges will not be automatically dismissed.
[FN43] The policy recommends that
the prosecutor request a postponement and obtain a sworn statement from the
victim as to why she wants to withdraw and whether she was pressured to do
so. [FN44] Ultimately, the county's
domestic violence unit a panel made up of a chief prosecutor, paralegals,
and a victim advocate must give its consent before the prosecutor can
plea bargain or recommend dismissal of charges. [FN45]
In San Diego,
California, the City Attorney's official policy states that the prosecutor
will request an arrest warrant if a subpoenaed victim fails to show up in
court. [FN46] In practice, however,
no warrant actually issues until a specially trained domestic violence prosecutor
determines that the case cannot proceed without the victim's cooperation.
[FN47] In cases where other corroborating
evidence, such as 911 tapes, photographs, medical records, and neighbors'
or relatives' testimony, is available and deemed sufficient to prove the case,
the prosecutor will not request a warrant. [FN48]
In cases that cannot be proven *861 without the victim's cooperation,
the prosecutor's office will often request a continuance along with a bench
warrant [FN49] and, in most cases, simultaneously attempt to locate the victim.
[FN50] Alternatively, the prosecutor
may conclude that the victim is not likely to change her mind about testifying
and that the seriousness of the case does not merit her possible incarceration.
[FN51] Under these circumstances,
the prosecutor may make a motion to dismiss, subject to refiling within six
months if the victim becomes cooperative. [FN52]
Pursuant
to the no drop policy in Marion County, Indiana, a victim is informed initially
that the prosecutor's office usually follows a no drop policy and that the
prosecutor may make an exception depending on the circumstances of the case.
[FN53] The victim is subsequently
informed that if she wishes to withdraw the charges, she must first contact
either her legal advocate or a prosecutor. [FN54] Depending upon the circumstances of the case,
the victim may also be informed that certain categories of crimes or offenders
are summarily removed from consideration for dismissals. No case will be dropped, for example, if the
defendant: (1) has a prior conviction; (2) has been sent a warning letter;
(3) has another case pending for an act of violence against the same victim;
or (4) is on probation and is subject to a violation for a new offense. [FN55] Moreover, no case will be dropped before the
initial hearing. [FN56] In situations
where the victim requests a drop, the policy dictates that she must be advised
of the increased risk of being revictimized if charges are dropped. [FN57] The victim may also be asked to view a video
program about domestic violence and to attend a victims' support group meeting.
[FN58] Eventually, if the victim continues
to insist on dropping the charges, she will be allowed to sign a "drop
form." [FN59] The form will then be submitted to the court at the next
hearing, after which the judge will take it under advisement for ninety days.
If no *862 further violence occurs during this period, the prosecutor will
file a motion to dismiss subject to refiling during the statute of limitations
period. [FN60]
Prosecutors
in Duluth, Minnesota, use what is termed a "hard" no drop policy,
[FN61] in which prosecutors will almost always pursue the case regardless
of a victim's wishes. [FN62] Under
the Duluth policy, prosecutors will regularly subpoena all victims regardless
of their willingness to testify in an effort to shield the victim from the
appearance of responsibility. [FN63] Because
many cases involve hostile or reluctant victims, Duluth's City Attorney's
office has developed procedures for the examination of hostile witnesses and
alternative means to introduce evidence. [FN64] Prosecutors try to present juries with the
"whole story" of what occurred between the victim and defendant
by introducing excited utterances, present sense impressions, evidence of
other conduct, and asking leading questions of the victim. [FN65]
Lastly, the
San Francisco District Attorney's Office encourages victims to confer with
victim advocates when the victim appears reluctant to testify. [FN66] If the victim still refuses to testify after
having met with an advocate, the prosecutor may question the victim under
oath in a manner that simultaneously elicits reasons for her reluctance and
informs her (and the batterer) that she is not responsible for the case going
forward. [FN67] If the victim is found
in contempt, the prosecutor will request that the disposition address the
victim's needs, such as participation in a battered women's support group
or counseling. [FN68]
*863 B. Survey of No Drop Policies
*864 Although California lawmakers have not passed legislation specifically
advocating no drop policies, California law implicitly recognizes local use
of such policies by according special treatment to victims who refuse to testify.
Under section 1219 of California's Civil Procedure Code, judges are
prohibited from jailing a domestic violence victim on the first contempt finding
for refusal to testify. [FN75] Instead
of jail, the judge may order the victim to attend a domestic violence program
for victims, or to perform up to seventy two hours of community service.
[FN76] The judge may sentence a victim to jail only
after a second finding of contempt. [FN77]
At the federal
level, the adoption of no drop policies is encouraged by the Child Abuse,
Domestic Violence, Adoption and Family Services Act of 1992. [FN78]
Section 10415 authorizes Model State leadership grants to be given
to states that have statewide prosecution policies that include either a no
drop policy or a vertical prosecution policy. [FN79]
In some states
that do not have specific legislation relating to no drop policies, the attorney
general's office has set forth such a policy or has officially endorsed its
adoption. [FN80] In Rhode Island,
for example, the attorney general's office enforces an unwritten policy stating
*865 that charges will not be dropped until the victim has gone to court
and testifies that she is unwilling to testify. [FN81]
In Kentucky, the Attorney General's Task Force on Domestic Violence
recommends the "emergency" implementation of no drop policies at
both the state and local levels. [FN82]
II. The Impetus For A No Drop Solution
Clearly,
the interplay of these two factors serves to perpetuate the problem of aborted
prosecutions. [FN86] The nature of
the interaction between victims and prosecutors, for example, serves to reinforce
each side's beliefs and behaviors and ultimately impacts their view of the
role prosecution can play in ending the violence. [FN87] Moreover, in this atmosphere of mutual distrust, the batterer's
role in affecting the ultimate *866
outcome of his case receives limited consideration. [FN88] As one city prosecutor described this cycle
of aborted prosecutions:
[I]t was
a self fulfilling prophesy. We'd
file if she really wanted us to, but we knew that she'd want us to drop charges
later . . . we may have even told her so.
Then we sent her back home, often back to her abuser, without any support
or protection at all. Sure enough,
she wouldn't follow through and we'd think, "It's always the same with
these cases." [FN89]
Part II explores
the reasons and constraints underlying prosecutors' reluctance to pursue domestic
violence cases and the ways in which prosecutors have dissuaded victims from
seeking full criminal justice relief. This part also examines the reasons and motivations behind victims'
reluctance to cooperate.
A. Prosecutorial Noncooperation
A prosecutor's
power to forgo or to proceed with prosecution in domestic violence cases has
been described as a power that involves "great latitude and little accountability."
[FN90] Although statutes or judicial
review set some outside limits on this power, [FN91] a prosecutor's decision
to terminate prosecution is seldom challenged. [FN92]
In general, society allows prosecutors to set priorities and enforce
the law with discretion because of limited justice resources, legislative
"overcriminalization," and society's belief in individualized justice.
[FN93] In the *867 area of domestic violence cases,
however, prosecutors often choose to exercise discretion by not proceeding
or later dismissing charges. [FN94]
A complex
set of motivations and constraints underlie prosecutors' reluctance to prosecute
domestic violence cases. For the most
part, prosecutors fail to understand the harms and dynamics of woman battering.
[FN95] Some prosecutors believe, for
instance, that the violence is trivial, that victims are somehow to blame,
[FN96] and that the public order is not affected. [FN97] Still others question the wisdom of state intervention
in familial relationships. [FN98]
Some prosecutors
choose to drop cases because of expectations, often based on experience, that
the victim will ultimately change her mind about prosecution. [FN99]
Because the victim is often the only witness to the violence, such
cases can be extremely difficult to prove without the victim's testimony.
[FN100] Likewise, the general tendency
of juries to try the victim instead of the defendant in a nonstranger case
[FN101] also taints the prosecutor's view of the likelihood of conviction.
[FN102]
Organizational
goals and incentives also influence decisions to forgo or terminate prosecutions.
Trying domestic violence cases without favorable victim testimony hardly
coincides, for instance, with the bureaucratic goals of achieving higher conviction
rates [FN103] and conserving limited prosecutorial resources. [FN104] Moreover, because other justice*868 personnel, including chief prosecutors
and judges, fail to treat domestic abuse cases with the same level of seriousness
as other crimes, deputy prosecutors receive no incentive to vigorously pursue
these types of cases. [FN105]
Prosecutors
have contributed to victims' ambivalence about the criminal justice process
by behaving in ways that reflect their underlying resistance to pursue domestic
violence cases. [FN106] In contrast
with other kinds of crimes, for instance, many prosecutors abdicate control
for dismissing cases to victims. [FN107] In doing so, prosecutors not only make the
victim feel responsible for any action taken against the batterer, [FN108]
but also force the victim to constantly reaffirm what was a traumatic decision
to prosecute in the first place. [FN109]
Moreover, this arrangement virtually invites batterers to intimidate
victims into withdrawing the charges. [FN110]
Prosecutors
also influence battered women's decision to drop charges by urging reconciliation
or otherwise discouraging pursuit of *869 criminal relief. [FN111] Some
prosecutors discourage victims tacitly by questioning the victim in a manner
that conveys blame or disbelief, [FN112] or by actively outlining the disadvantages of prosecution. [FN113]
A few give victims distorted or incomplete legal information that thwart
them from seeking the state's assistance. [FN114]
Finally,
prosecutors dissuade battered women indirectly by downplaying the seriousness
of the crimes. Some prosecutors, for
instance, undercharge domestic abuse cases by filing them as misdemeanors
when circumstances warrant felony charges. [FN115]
In some jurisdictions, prosecutors delay charging or following up on
the victim. [FN116] Some prosecutors
have gone so far as to impose mandatory waiting or "cooling off "
periods. [FN117] Still, in other jurisdictions,
prosecutors attempt to mediate cases or recommend counseling. [FN118] This policy sends a *870 message to the victim that the system does not view the batterer's
conduct as a crime and that she may be partly responsible for the incident.
[FN119] Not surprisingly, many victims
become discouraged with the legal process and decide that the costs of prosecution
outweigh any potential benefits. [FN120]
B. Victim Noncooperation
Much like
other victims of violent crimes, battered women enter the justice system unaware
of the realities of the modern criminal justice process. [FN121] Like other victims, battered women are unprepared
for the number of court appearances, [FN122] the lack of input they have about
plea negotiations and sentencing, [FN123] and the amount of protection the
defendant receives for his constitutional rights. [FN124] Victims who expect that the process will be
predictable and straightforward often are left feeling dissatisfied with the
justice system. [FN125]
Unlike other
victims of violent crimes, a woman battered by a current or former intimate
partner encounters increased barriers to participation. In many instances, battered women face an increased
risk of intimidation and reprisal. [FN126] The common phenomenon of "recapture" women being assaulted
and coerced back into relationships that they had previously chosen to leave
reveals most convincingly the limited avenues of escape available to battered
women. [FN127] As a
*871 victim of violent crime who is often ignorant or distrustful of the
legal system, the battered woman also encounters victim blaming and trivializing
behaviors by justice personnel. [FN128] Moreover, if children are involved, a woman's traditional role as
caretaker exacerbates the frustrating experience of returning to court time
and time again to prevent further contact. [FN129]
Lastly, where the woman has no income independent of the batterer,
the decision to continue prosecution may result in destitution for the entire
family. [FN130]
Because of
the victim's status as a woman, she is also vulnerable to a host of uniquely
potent constraints and pressures that impact her ability to invoke and support
prosecution. [FN131] As Professor
Christine Littleton explains, the "solution" of separation the
law's most common response to conflict [FN132] presents an especially
problematic choice for women because separation conflicts with impulses to
seek connection. [FN133] Whether such
impulses are "authentic" or simply a "habit of compliance"
with societal norms, [FN134] the legal framework under which women live disregards
the lives of battered women in two ways. The law misinterprets or ignores the connection
that all women value (by attributing the violence to some failure in the victim's
psychology) and assumes that the choice between separation and continued abuse
actually exists for most women. [FN135]
*872 A battered woman's need for connection is perhaps most closely identified
with instances of reconciliation with her batterer. This, however, is not the only or even the
most usual case. [FN136] Often, a
woman's connection to her children can keep her within an abusive relationship.
[FN137] In addition, a batterer may
threaten to challenge custody, [FN138] or make the victim feel guilty about
depriving the children of their father's companionship. [FN139]
Some victims
withdraw from prosecution because they have effectively wielded the threat
of prosecution as a "power resource" in bargaining for their own
safety. [FN140] By forging an alliance
with criminal justice agents through the institution of criminal proceedings,
the victim may have finally achieved her own goal of separation from the batterer
in relative safety. [FN141] Alternatively, because the victim has attained
some measure of power through the institution of criminal proceedings, she
may feel assured in continuing the relationship. [FN142]
Finally,
some battered women drop charges of abuse when the legal process fails to
assure them that the decision to prosecute is safer than *873 staying in the violent relationship. [FN143] As one battered woman observed:
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. [FN144]
[FN28]. See Clute, supra note 20, at 45.
[FN30]. Cahn, supra note 15, at 167 68; see Goolkasian,
supra note 15, at 72 (stating that victims who express a desire to "drop
charges" are told that the "prosecutor has a duty to decide whether
the court should be asked to dismiss a complaint"); see, e.g., Salt Lake
County Attorney's Office, Salt Lake County, Utah, Domestic Violence Policy
and Protocol for the Salt Lake County Attorney's Office 1 (1993) (on file
with author) [hereinafter Salt Lake County Protocol] (stating that a "victim
cannot 'drop' charges or 'press' charges once the case is submitted to the
County Attorney's office").
[FN31]. Gwinn & O'Dell, supra note 13, at 1514;
see Florida Gender Bias Study, supra note 9, at 861; Attorney General's Task
Force on Domestic Violence Crime, Commonwealth of Kentucky, Prosecutor's Manual
on Domestic Violence Crime 13 (1991) (on file with author) [hereinafter Kentucky
Prosecutor's Manual].
[FN32]. Goolkasian, supra note 15, at 73; see Waits,
supra note 17, at 323 (stating that
no drop policies convey a strong sense of societal responsibility for deterring
the batterer).
[FN33]. See City Attorney's Office, Duluth, Minnesota,
Domestic Violence Prosecution Plan 1 (1990) (on file with author) [hereinafter
Duluth Prosecution Plan] (stating that the City Attorney's prosecution plan,
which includes a no drop policy, "provides a framework upon which to
base decisions" and "does not make up a specific set of absolute
procedures to fit the myriad possibilities [the] cases present"); see
also supra note 20.
[FN34]. Criminal domestic violence cases generally
enter the legal system through on scene arrests or victim initiated complaints.
Cahn, supra note 15, at 165; Ford & Regoli, supra note 15, at 132.
At the police officer's option, on scene arrest cases may be referred
to the prosecutor's office for formal charge screening. In cases involving victim initiated complaints,
the prosecutor's office itself screens the case before requesting an arrest
warrant or summons. Ideally, if the
prosecutor has probable cause to believe that the defendant is guilty of the
crime alleged, the prosecutor formally lodges a complaint or information at
the initial presentment. For less
serious offenses, such as low level misdemeanors, the screening and formal
charging may occur simultaneously. At
the initial presentment, the judge informs the defendant of his rights, sets
bail and other conditions for release, and assigns counsel if one is requested.
In the case of a misdemeanor, the defendant is arraigned on the complaint,
and if needed, a trial date is set. If the case involves a felony, a preliminary
hearing date will be scheduled. The accused felon will be arraigned at that
time and a trial date will be set. Some time in between arrest and trial,
the process of trial preparation and plea bargaining begins.
See LaFave & Israel, supra note 7, s 1.4, at 20 26.
[FN35]. Goolkasian, supra note 15, at 72 73; see
supra text accompanying notes 18 20.
[FN36]. Cahn, supra note 15, at 168 (stating that
the "prosecuting attorney's office explains to victims that they are
witnesses for the state and that, even if they reconcile with the defendant,
the state will not drop charges"); Telephone Interview with Sandra Panico,
Investigating Law Clerk, Citizens' Rights Division, Office of the Attorney
General, North Carolina (Aug. 17, 1994) (explaining that under an informal
no drop policy, the prosecutor communicates to the parties that "it's
the state's case").
[FN37]. See infra note 66 and accompanying text (discussing
use of victim advocate); see, e.g., Salt Lake County Protocol, supra note
30, at 1 (if the victim fails to appear or testify, an investigator or counselor
will make an appointment with the victim for the purpose of persuading her
to testify).
[FN38]. Telephone Interview with Betsy Griffing, Assistant
Attorney General, Office of the Attorney General, Montana (Aug. 5, 1994) (stating
that although there is no formal statewide policy, "as a practical matter,"
prosecutors do not drop charges based on the victim's request); Telephone
Interview with Sandra Panico, supra note 36.
[FN39]. See Goolkasian, supra note 15, at 72 73;
infra notes 53 60 and accompanying text (discussing protocol for Marion
County, Indiana).
[FN40]. Telephone Interview with Terri Clarke, Deputy
County Attorney, Maricopa County District Attorney's Office, Phoenix, Arizona
(Aug. 15, 1994) (explaining the office's informal policy that charges will
not be dropped solely because the victim requests it); Telephone Interview
with Mark Sandon, Domestic Abuse Prosecutor, Polk County, Iowa (Aug. 5, 1994)
(explaining the office's informal policy that prosecutor will not dismiss
by reason of the victim's wishes).
[FN41]. See, e.g., St. Louis County Attorney's Office,
Duluth, Minnesota, St. Louis County Attorney's Domestic Abuse Policy 6 7
(Feb. 5, 1990) (on file with author) (specifying steps and conditions prosecutors
should take when victims recant, refuse to testify, or fail to appear); infra
notes 46 60 and accompanying text (discussing protocols and procedures for
Marion County, Indiana, and San Diego, California).
[FN42]. See infra notes 46 52, 61 68, and accompanying
text.
[FN43]. See Kim Wessel, Support Is Sought for a Special
Court on Family Violence, The Courier Journal, June 9, 1993, at 1B.
[FN44]. O'Doherty, supra note 7, at 1A.
[FN45]. Id.; Wessel, supra note 43, at 1B.
[FN46]. Office of the City Attorney, City of San Diego,
Domestic Violence Prosecution Protocol 13 (April 1993) (on file with author);
Gwinn & O'Dell, supra note 13, at 1517.
[FN47]. Id.
[FN48]. Id.
[FN49]. Id.
[FN50]. Id. In
some cases, the prosecutor may ask the judge to hold the warrant and continue
the case for a week while the prosecutor attempts to notify the victim of
the pending risk of arrest. Id. at
1518. Once the victim discovers that
she may be arrested, she often agrees to appear in court. Id.
[FN51]. Id. at 1517.
[FN52]. Id.
[FN53]. Office of the Prosecuting Attorney, Marion
County, Indiana, Domestic Violence Protocol 3 (Feb. 1994) (on file with author)
[hereinafter Marion County Protocol].
[FN54]. Id. Marion
County's domestic violence unit has three legal advocates and victim assistance
volunteers who work alongside four full time deputy prosecutors.
Id. at 1. For a discussion on the role of victim advocates,
see supra note 15.
[FN55]. Marion County Protocol, supra note 53, at
3.
[FN56]. Id.
[FN57]. Id. Specifically,
the victim is told that statistics demonstrate that "it is 41% more likely
that she will be the victim of repeat violence if she drops charges [versus]
7% if she doesn't drop charges." Id.
[FN58]. Id.
[FN59]. Id.
[FN60]. Id.
[FN61]. Cahn, supra note 15, at 168.
[FN62]. See Jan Hoffman, When Men Hit Women, N.Y.
Times, Feb. 16, 1992, s 6 (Magazine),
at 26 27.
[FN63]. Duluth Prosecution Plan, supra note 33, at
2; Asmus, supra note 22, at 135 36; see also Developments, supra note 1 at
1540 41 ("[A]ppearance of compulsion shields a woman from blame and
pressure.").
[FN64]. Asmus, supra note 22, at 136.
[FN65]. Id. at 139 49 (discussing applicability
of Minnesota Rules of Evidence 803(2), 801(d)(1)(D), 404(b), and 611(c),and
Minnesota Statutes section 634.20 to domestic abuse cases); see Duluth Prosecution
Plan, supra note 33, at 3 4 (stating that the City Attorney's Office will
work with Duluth police to develop methods for gathering and preserving evidence
such as statements of victims and perpetrators at or near the time of the
incident, statements by other witnesses, physical evidence of any injuries,
and evidence regarding prior conduct or history of abuse).
[FN66]. District Attorney's Office, San Francisco,
California, Domestic Violence Prosecution Protocol 19 (Feb. 1, 1992) (on file
with author). Victim advocates educate
victims about their legal options and sometimes engage in crisis counseling.
As specified by law, communications between a victim and a domestic
violence victim advocate are confidential.
Id. at 21.
[FN67]. Id. at 19 20. Prosecutors ask questions such as: "You don't want to be here, do you?"
"Are you aware that the People of the State of California are
bringing these charges, and that the decision to prosecute the defendant is
up to the prosecutor rather than you?"
"When did you become reluctant to testify?"
"How did you receive the injuries?"
Id.
[FN68]. Id. at 20.
California law provides such sentencing alternatives for victims of
domestic abuse. See infra notes 75
77 and accompanying text.
[FN69]. See Fla. Stat. Ann. s 741.2901 (West Supp.
1994); Minn. Stat. Ann. s 611A.0311 (West 1991 & Supp. 1994); H.R.J. Res.
3, 48th Leg., 1990 Gen. Sess., 1990 Utah Laws 1543; Wis. Stat. Ann. s 968.075(7)
(Supp. 1994). Although domestic abuse statutes in other states contain "legislative
intent" provisions encouraging proactive prosecution of domestic violence
crimes, only the four states mentioned above specifically address the impact
of victim nonparticipation and discretionary dismissals in the disposition
of domestic violence cases. See, e.g., Cal. Penal Code s 273.8 (West Supp.
1994) (stating that legislature "intends to support increased efforts
by district attorneys' and city attorneys' offices to prosecute spousal abusers,"
but not mentioning issue of victim reluctance); Idaho Code s 39-6302 (Michie
1993) (finding that domestic violence can be "deterred, prevented or
reduced" through vigorous prosecution by prosecutors, but not addressing
the impact of victim nonparticipation); N.J. Code 2C:25-18 (West Supp. 1994)
(encouraging broad application of remedies in criminal courts but not addressing
impact of victim nonparticipation).
[FN70]. The legislation is entitled "A Joint
Resolution of the Legislature Urging Prosecutors to Develop and Implement
a 'No-Drop' Policy," and states:
[FN71]. Wis. Stat. Ann. s 968.075(7)(a)(2) (Supp.
1994).
[FN72]. Diversion is an alternative to formal criminal
proceedings. "Typically the
prosecutor suspends prosecution in exchange for the defendant's agreement
to make restitution for an offense or to submit to rehabilitative counseling."
Stephen A. Saltzburg & Daniel J. Capra, American Criminal Procedure: Cases and Commentary 662 (4th ed. 1992).
[FN73]. Florida laws provide that:
[FN74]. Minn. Stat. Ann. s 611A.0311(b)(5), (b)(7)
(West 1991 & Supp. 1994).
[FN75]. Cal. Civ. Proc. Code s 1219 (West Supp. 1994).
It is possible, however, that the victim may still be jailed on an
arrest warrant prior to the first contempt finding.
Gwinn & O'Dell, supra note 13, at 1518 n.43.
[FN76]. Cal. Civ. Proc. Code s 1219(c). The victim may be sentenced to attend a victims'
support group meeting. Gwinn &
O'Dell, supra note 13, at 1518 n.43.
[FN77]. Cal. Civ. Proc. Code s 1219(c).
[FN78]. Pub. L. No. 102-295, 106 Stat. 187 (1992).
[FN79]. 42 U.S.C. s 10415 (Supp. 1993). In order to be eligible for a grant, a state
must have:
(2) statewide prosecution policies th
(A) authorize
and encourage prosecutors to pursue cases where a criminal case can be proved,
including proceeding without the active involvement of the victim if necessary;
and
(B) implement
model projects that include ei
(i) a "no-drop"
prosecution policy; or
(ii) a vertical
prosecution policy ... 42 U.S.C. 10415(b) (Supp. 1993).
[FN80]. An informal telephone survey of states that
had no legislation relating to no-drop policies revealed several attorneys
general's offices that used a no-drop policy or encouraged their adoption
statewide. See, e.g., Kentucky Prosecutor's
Manual, supra note 31, at 15 (recommending emergency implementation of no-drop
policies on a statewide level); Telephone Interview with Betsy Griffing, supra
note 38 (explaining the informal policy at Montana Attorney General's Office);
Telephone Interview with Sandra Panico, supra note 36 (describing the informal
no-drop policy at the North Carolina Attorney General's Office); Telephone
Interview with David Prior, Assistant Attorney General, Criminal Division,
Rhode Island (Aug. 15, 1994) (describing the unwritten no-drop policy at the
Rhode Island Attorney General's Office); see also Telephone Interview with
William J. Zaorski, Deputy Attorney General, Division of Criminal Justice,
Department of Law & Public Safety, Office of the Attorney General, New
Jersey (Aug. 18, 1994) (stating that the Attorney General's office is currently
developing a course on proving cases without victim assistance).
Because the
office of the attorney general in most of the states surveyed exercised no
direct jurisdiction over the class of crimes often filed in domestic violence
cases, many offices perceived no need or cause for the attorney general to
implement or issue a policy statement relating to no drop policies.
[FN81]. See Telephone Interview with David Prior,
supra note 80.
[FN82]. Kentucky Prosecutor's Manual, supra note 31,
at 15.
[FN83]. See Buzawa & Buzawa, supra note 7, at
58; Minnesota Supreme Court Task Force for Gender Fairness in the Courts,
supra note 7, 882 84; Missouri Task Force Report, supra note 9, at 493.
[FN84]. Barbara Hart, Battered Women and the Criminal
Justice System, 36 Am. Behavioral Sci. 624, 626 27 (1993); McLeod, supra
note 7, at 394; Wisconsin Equal Justice Task Force, Final Report:
Gender Bias Task Force, 6 Wis. Women's L.J. 173, 183 88 (1991).
[FN85]. See Goolkasian, supra note 15, at 55; Missouri
Task Force Report, supra note 9, at 493 ("Officials working in the system
view the shortfalls in effectiveness [of the administration of domestic violence
laws] as the result of victims' perplexing and self perpetuating unwillingness
to pursue criminal prosecution and court ordered protection."); cf.
Kerry G. Wangberg, Reducing Case Attrition in Domestic Violence Cases:
A Prosecutor's Perspective, The Prosecutor, Winter 1991, at 8 ("High
case attrition rates in domestic violence can generally be classified under
the general rubric of "victim reluctance.").
[FN86]. Goolkasian, supra note 15, at 56 (stating
that battered women often are reluctant to follow through with prosecution
and that prosecutors' traditional approach to handling domestic violence cases
serves to increase, rather than minimize their reluctance); cf. Buzawa &
Buzawa, supra note 1, at xvii (discussing cycle of nonprosecution due to victims'
failure to cooperate and prosecutors' lack of support or apparent indifference).
[FN87]. Buzawa & Buzawa, supra note 1, at xvii;
Cahn, supra note 15, at 163.
[FN88]. See Sarah Eaton & Ariella Hyman, The Domestic
Violence Component of the New York Task Force Report on Women in the Courts:
An Evaluation and Assessment of New York City Courts, 19 Ford. Urban
L.J. 391, 425 26 (1992) (discussing lack of awareness among judges and prosecutors
as to why battered women wish to drop charges and, in particular, the role
batterer intimidation plays in deterring their victims); cf. Christine A.
Littleton, Women's Experience and the Problem of Transition:
Perspectives on Male Battering of Women, 23 U. Chi. Legal F. 23, 38
(1989) (noting in a discussion of battered women's syndrome that:
"[T]he law in its present cast is ... able to maintain an absolute
focus on whether the battered woman "chose" correctly between the
risk of leaving and the risk of staying and away from whether men should be
able to impose either set of risks on us."); Mahoney, supra note 1, at
53 54 (stating that legal literature often focuses on the psychology of the
victim and often ignores the "interplay of power and control, domination
and subordination in the battering relationship").
[FN89]. Goolkasian, supra note 15, at 55.
[FN90]. Cahn, supra note 15, at 162.
[FN91]. Id.; see, e.g., S.D. Codified Laws Ann. s
23A 3 22 (Supp. 1994) (requiring prosecutors to specify reasons for not
continuing prosecution); Wis. Stat. Ann. s 968.075(7) (1993) (same).
[FN92]. See Abraham S. Goldstein, The Passive Judiciary
14 (1980) (noting that judges seldom deny a prosecutor's motion to withdraw
prosecution); LaFave & Israel, supra note 7, s 13.3(c) (noting perfunctory
nature of judicial approval in state motions to terminate prosecutions).
[FN93]. LaFave & Israel, supra note 7, s 13.2(a);
Salzburg & Capra, supra note 72, at 653 54.
[FN94]. Buzawa & Buzawa, supra note 1, at xvi;
Cahn, supra note 15, at 162; McLeod, supra note 7, at 398.
[FN95]. Eaton & Hyman, supra note 88, at 481
82; Florida Gender Bias Study, supra note 9, at 861; Georgia Gender Bias Report,
supra note 20, at 552; Missouri Task Force Report, supra note 9, at 506; Utah
Task Force on Gender and Justice, supra note 6, at 211; Wisconsin Equal Justice
Task Force, supra note 84, at 186.
[FN96]. Cahn, supra note 15, at 162 63.
[FN97]. Buzawa & Buzawa, supra note 7, at 58;
see Cahn, supra note 15, at 162 (quoting a former supervisor at a prosecutor's
office who stated that " [i] nteraction between people who know each
other is really different in kind than violent behavior directed towards strangers")
(alterations in original) (citations omitted); Eaton & Hyman, supra note
88, at 456 (noting assessment by victim advocates that assistant district
attorneys do not think of domestic violence as "real" crimes, like murder or drug
trafficking).
[FN98]. Buzawa & Buzawa, supra note 7, at 58;
Schmidt & Steury, supra note 11, at 488.
[FN99]. Asmus et. al, supra note 22, at 135; Cahn,
supra note 15, at 163; Minnesota Supreme Court Task Force for Gender Fairness
in the Courts, supra note 7, at 883.
[FN100]. Cahn, supra note 15, at 163; Minnesota Supreme
Court Task Force for Gender Fairness in the Courts, supra note 7, at 884;
cf. Asmus et al., supra note 22, at 135 ("Traditionally, [the victim's
willingness to cooperate] has been viewed as central to the likelihood of
obtaining a conviction.").
[FN101]. See Asmus et al., supra note 22, at 131;
Clute, supra note 20, at 44.
[FN102]. Goolkasian, supra note 15, at 55; Asmus et
al., supra note 22, at 131.
[FN103]. See Buzawa & Buzawa, supra note 7, at
61; Schmidt & Steury, supra note 11, at 488.
[FN104]. As one prosecutor admits: "It must be acknowledged that it has been
easier to let victims 'drop charges' than to create a resource intensive system
which takes over responsibility for the criminal prosecution. Effective criminal prosecution without the
victim's involvement costs money." Gwinn
& O'Dell, supra note 13, at 1514 n.38. See also Buzawa & Buzawa, supra note 7,
at 57 (discussing the crisis of excessive caseloads and attempts by prosecutors
to informally reduce caseloads through diversion or outright dismissal).
[FN105]. See Goolkasian, supra note 15, at 55 (noting
that practices and policies within the justice system reinforce the message
that "handling domestic violence case [will] do little to advance a prosecutor's
career"); Developments, supra note 1, at 1555.
[FN106]. See Buzawa & Buzawa, supra note 7, at
58; Cahn, supra note 15, at 162.
[FN107]. Clute, supra note 20, at 44; see Georgia
Gender Bias Report, supra note 20, at 567 ("In many other nondomestic
cases involving violent injury, the State usually does not shift the burden
of deciding whether to prosecute to the victim.... However, ... the State
often shifts the burden of deciding whether or not to prosecute onto the victim
in domestic violence cases."); Minnesota Supreme Court Task Force for
Gender Fairness in the Courts, supra note 7, at 885 (noting a " de facto
delegation of the prosecutorial responsibility to enforce the domestic violence
laws to the victims of the crime").
Notably, the prosecutor's abdication of control relates only to the
decision to drop. Thus, where victims
insist on pursuing criminal relief, prosecutors retain control of the decisionmaking.
See Schmidt & Steury, supra note 11, at 499 (finding that leniency
was shown to defendants in more than half the cases through nolle prosequi,
hold open, or diversion dispositions despite victim wishes to the contrary).
[FN108]. Buzawa & Buzawa, supra note 7, at 58;
Gwinn & O'Dell, supra note 13, at 1514; cf. Minnesota Supreme Court Task
Force for Gender Fairness in the Courts, supra note 7, at 885 (stating that
it "is contrary to the principles of [the legal] system to even indirectly
hold victims of domestic violence responsible for law enforcement").
[FN109]. See Buzawa & Buzawa, supra note 7, at
61; cf. Ford & Regoli, supra note 15, at 141 ("Prosecutors test victims'
commitment to 'following through' by asking if they really want to prosecute.").
[FN110]. Gwinn & O'Dell, supra note 13, at 1514.
As the Florida Supreme Court Gender Bias Commission explained by way
of quoting one attorney's testimony:
[If] the defendant knows that the woman has the capability
of dropping the charge, he's going to beat her, he's gonna make her eat the
restraining order ... he'll make her crawl on the ground and eat cigarettes[,]
and every other kind of abuse you can imagine as long as she has the potential
to drop it, that's going to happen. Florida Gender Bias Study, supra note
9, at 861 (alterations in original) (citations omitted).
[FN111]. See Ford & Regoli, supra note 15, at
141; Georgia Gender Bias Report, supra note 20, at 566 ("Some witnesses
indicated that prosecutors frequently encourage the victim not to go forward,
but to seek counseling or mediation ...."); Utah Task Force on Gender
and Justice, supra note 6, at 211 (indicating that 27% of prosecutors report
that they "sometimes" or "often" urge reconciliation even
when the abuse is severe).
[FN112]. Ford & Regoli, supra note 15, at 130
(Women often are made to feel responsible for their own victimization through
screening questions: "Are you
still living with this man?" "Are you married to him?" "Have you filed for divorce?" "Why
do you stay with him?").
[FN113]. Ford & Regoli, supra note 15, at 141.
Some prosecutors seemingly list all the possible reasons why a victim
should not support the prosecution: "that it will cost the defendant money
that might better be spent on the family's support; that it will create more
stress and conflict in the relationship; that it will anger the defendant
to the point of his retaliating; [and] that prosecution cannot guarantee security."
Id.
[FN114]. Hearings conducted by the Utah Task Force
on Gender and Justice highlighted instances where prosecutors told victims
that: 1) protective orders are not
available if the offense occurred at the couple's residence; 2) a victim may
get only one protective order during her lifetime; and 3) protective orders
are not available if the victim is already divorced and did not obtain a permanent
restraining order in her divorce decree.
Utah Task Force on Gender and Justice, supra note 6, at 211. One victim who testified recounted a story
of a prosecutor who simply told her that a restraining order was not available.
Not knowing the difference between a protective and a restraining order,
the victim was never informed of the difference or the procedures for obtaining
a restraining order in civil court. Id. See also Eaton & Hyman, supra note 88, at 427 (stating that
some battered women are dissuaded due to unclear or incorrect information).
[FN115]. See infra notes 197 99 and accompanying
text.
[FN116]. Eaton & Hyman, supra note 88, at 462
("[T]oo much time passes before ADAs make contact with battered women.");
Hart, supra note 84, at 627; Missouri Task Force Report, supra note 9, at
508.
[FN117]. See Ford & Regoli, supra note 15, at
131. Prosecutors generally delay the
charging decision in the hope that the victim will "cool down" and
withdraw charges. Prosecutors attribute
their reluctance to charge to: 1)
the minor nature of the disputes; 2) the strain on judicial resources; and
3) strain that formal proceedings place on a continuing relationship. Salzburg & Capra, supra note 72, at 663.
[FN118]. Salzburg & Capra, supra note 81, at 663;
Georgia Gender Bias Report, supra note 21, at 566; see Florida Gender Bias
Study, supra note 6, at 861 (stating that some counties have a policy of sending
domestic assault cases to mediation). Prosecutors,
for example, refer the case to a social agency or present it to a member of
the prosecutor's office for an informal hearing. Salzburg & Capra, supra
note 81, at 663. If neither party
appears at the hearing, the prosecutor assumes the dispute has been resolved
and drops the case. If only one of
the parties appears, the prosecutor schedules another meeting rather than
charge the suspect. Where both parties
appear, the dispute is usually "talked out" and no prosecution ensues.
Id.
[FN119]. See Georgia Gender Bias Report, supra note
20, at 570; cf. Florida Gender Bias Study, supra note 9, at 862 ("[In
mediation, t]he criminal aspects of the assault are brushed aside, implying
that the victim had some culpability.").
[FN120]. Hart, supra note 84, at 627; see Ford &
Regoli, supra note 15, at 130 31; cf. Cahn, supra note 15, at 163 ("Victims
learn not to rely on the criminal justice system for help.").
[FN121]. See Goolkasian, supra note 15, at 55 56;
Ford & Regoli, supra note 15, at 130; Hart, supra note 84, at 624.
[FN122]. Goolkasian, supra note 15, at 56; see Hart,
supra note 84, at 624.
[FN123]. Cf. Hart, supra note 84, at 624 (stating
that battered women want input in decisions whereas the judicial system precludes
such participation). Despite recent legislative enactments giving victims
the power to affect sentencing through victim impact statements, reports indicate
that victims remain unaware, and prosecutors neglect to advise them, of these
reforms. See generally Deborah P.
Kelly, Have Victim Reforms Gone Too Far or Not Far Enough?, 6 Crim. Just.
22, 22 (1991) (reviewing victims' rights reforms and concluding that such
rights are often underutilized).
[FN124]. Buzawa & Buzawa, supra note 1, at xvii.
[FN125]. Id.
[FN126]. A domestic abuse victim is more than twice
as likely as other victims of violent crimes to be revictimized within six
months after the assault that gave rise to the legal intervention. Hart, supra note 84, at 625. Furthermore, when she is assaulted, she is
likely to be assaulted an average of three times, compared with once for other
victims of violent crimes. Id.
[FN127]. See Littleton, supra note 88, at 36; see
also Hart, supra note 84, at 626 ("Although not all batterers engage
in escalated violence during the pendency of prosecution, as many as half
threaten retaliatory violence, and at least 30% of batterers may inflict further
assaults during the predisposition phase of prosecution.") (citations
omitted). See generally Mahoney, supra
note 1, at 65 71 (naming the phenomenon of separation assault and reviewing
cases where the victim's invocation of the criminal process resulted in violence
escalation).
[FN128]. See Eaton & Hyman, supra note 88, at
423, 482; Hart, supra note 84, at 626 27; Minnesota Supreme Court Task Force
for Gender Fairness in the Courts, supra note 7, at 885. See also supra notes 108 09, 118 20, and
accompanying text.
[FN129]. See Hart, supra note 84, at 628 (discussing
the inconvenience of attending multiple court hearings due to the difficulty
of securing reliable childcare); Mandulo, supra note 7, at 2.
[FN130]. Missouri Task Force Report, supra note 9,
at 497. In State ex rel Williams v.
Marsh, 626 S.W.2d 223, 229 (Mo. 1982), the Supreme Court of Missouri stated
that "[t]he most compelling reason for an abused woman to remain in the
home subject to more abuse is her financial dependency; this is particularly
true for the women with children."
[FN131]. Cf. Littleton, supra note 88, at 47 49
(discussing the asymmetry of power between women and men and how that asymmetry
has made women "intensely, intimately vulnerable to betrayal, abuse and
murder" in their intimate relationships with men); Ferraro & Pope,
supra note 1, at 106 (explaining the system of culture and law that reinforces
the ideology of romantic love).
[FN132]. Littleton, supra note 88, at 50 (noting that
the law's "most common response to conflict is to separate, to keep individuals
from interfering with each other's ends").
[FN133]. Id. at 43 47 (explaining that "women
may stay in relationships that are physically dangerous to them because they
value connection"); cf. Ferraro & Pope, supra note 1, at 102 (noting
that women live in a "culture of relations" where relationships
and family are important, and that the criminal justice system's usual response
is to overlay the "culture of power" on strategies for helping women).
[FN134]. Littleton, supra note 88, at 49.
[FN135]. Id. at 47 49; see supra notes 126 27 and
accompanying text (discussing repetition
and escalation of violence after victims press charges). The shortage of battered women's shelters makes
separation even more problematic. Naomi
R. Cahn, Civil Images of Battered Women: The Impact of Domestic Violence on Child Custody Decisions, 44 Vand.
L. Rev. 1041, 1051 (1991). Lack of
economic support and a place to go force many women to go back home to their
abusers. S. Rep. No. 164, 102nd Cong.,
2d Sess. 5 (1991), reprinted in 1992 U.S.C.C.A.N. 133, 137. According to statistics, their fear of destitution
is well founded. There is a high
rate of homelessness for women who leave their batterers.
As one study noted, "Over 50% of homeless women are escaping domestic
violence." Asmus et al., supra note 22, at 120. In New
York City, more than 40% of the women on the streets are thought to be victims
of domestic violence. S. Rep. No.
164, supra, reprinted in 1992 U.S.C.C.A.N. 133, 137.
[FN136]. See Hart, supra note 84, at 628 ("Although
it is commonly believed that battered women withdraw cooperation because of
decisions to reconcile with defendants, research reveals that this is not
typically the reason for the request to terminate prosecution.").
[FN137]. Littleton, supra note 88, at 54. There is an acute shortage of battered women's
shelters, few of which will accept women with children. Cahn, supra note 135, at 1051.
[FN138]. See Mahoney, supra note 1, at 44; Elizabeth
M. Schneider, Particularity and Generality: Challenges of Feminist Theory and Practice in Work on Woman Abuse,
67 N.Y.U. L. Rev. 520, 555 (1992) ("[M]any battering men fight the issuance
of restraining orders by initiating divorce and custody proceedings against
battered women."). Women have
good reason to fear men's threats. In
contested custody cases, men receive custody 60% of the time. Littleton, supra
note 88, at 54 (citing Lenore J. Weitzman, The Divorce Revolution 233 (1985)).
[FN139]. Cf. Littleton, supra note 88, at 54 ("[Batterers]
typically know how to manipulate women's fear of losing [children].");
Mahoney, supra note 1, at 44 45.
[FN140]. Ford & Regoli, supra note 15, at 142.
[FN141]. See Buzawa & Buzawa, supra note 7, at
123; Ford & Regoli, supra note 15, at 142; cf. Hilton, supra note 16,
at 5 ("[A] woman who is trying to end a violent relationship might fear
having to face the offender in court and risk him knowing of her whereabouts.").
[FN142]. Some women may request the withdrawal of
charges because the initiation of prosecution alone seems to have produced
the desired changes in the defendant's behavior.
Hart, supra note 84, at 628; see also Buzawa & Buzawa, supra note
7, at 123 (stating that victims may drop charges after they have achieved
greater power status in the relationship).
[FN143]. Cahn, supra note 15, at 163; see Hart, supra
note 84, at 626 ("Criminal justice
system personnel too often believe that battered women will be safer and less
exposed to life jeopardizing violence once they are separated from the offender.
Quite to the contrary, evidence of the gravity of violence inflicted
after separation of the couple is substantial.").
Kathleen Ferraro explains a battered woman's framework for making choices
this way:
[FN144]. Asmus et al., supra note 22, at 130.