Cheryl Hanna, "No Right to Choose: Mandated Victim Participation in Domestic Violence Prosecutions," Harv. L. Rev., June 1996, p.1860-65
B. The Move Toward More Aggressive Prosecution
Once police
started to arrest alleged batterers, advocates began to focus reform efforts
on prosecution practices. [FN38] Prosecutors
often fail to initiate charges and to follow through with criminal prosecution
in domestic violence cases. [FN39] Victim noncooperation, reluctance, or outright
refusal to proceed are often cited as the major reasons for this lack of criminal
prosecution. [FN40] Prosecutors may
also resist pursuing *1861 cases
because they believe that battering is a minor, private crime. [FN41]
Within the past ten years, domestic violence advocacy groups have urged
prosecutors to follow through with legal intervention. [FN42] Advocacy groups
and the press now publicly review and challenge domestic violence cases. [FN43]
Law reform efforts have also aided and encouraged more aggressive prosecution.
[FN44] Perhaps most importantly, more
women are becoming District Attorneys, bringing with them new perspectives
on women's issues and prompting internal change. [FN45]
Although
no nationwide survey of prosecution policies currently exists, the limited
available research suggests that most jurisdictions that give special attention
to domestic violence cases employ 'soft' no drop policies. Under soft policies, prosecutors do not force
victims to participate in the criminal process; rather, victims are provided
with support services and encouraged to continue the process. [FN57] Kathleen Waits accurately describes the idea
behind soft no drop policies. She
argues that the law's top priority should be support:
Ideally, with enough understanding and encouragement,
the battered woman will assess her situation realistically, start to unlearn
her helplessness, and will agree to help the legal system as a witness against
her husband. . . . When, despite their best efforts, legal personnel find
that the victim cannot yet take control of her life, they face difficult choices
between solutions which undermine batterer deterrence and solutions which
further victimize the victim or increase her jeopardy. [FN58]
Many domestic violence advocates emphasize the importance
of listening to women and their concerns before taking action against their
batterers. Numerous state programs employ or work closely
with victim advocates. In Alexandria,
Virginia, for example, a victim can drop charges after appearing before a
counselor or a judge to explain her refusal. [FN59] In other soft no
drop jurisdictions, a victim who fails to appear, refuses to testify, or
recants her testimony is not sanctioned or
*1864 forced to participate. [FN60] Thus,
if a woman still refuses to cooperate after counseling and support and
there is not enough evidence to proceed without her testimony [FN61] then
the prosecutor is likely to dismiss the case rather than request a warrant
and a contempt hearing, despite the no drop policy.
No drop policies are difficult to assess.
First, such policies vary greatly among jurisdictions, and innovative
programs being developed throughout the country are still in the early stages
of evaluation. [FN62] Second, it is difficult to measure the difference
between written policies and practice. Even in model jurisdictions that follow
strict guidelines mandating participation by the victim, prosecutors still
maintain broad discretion over whether to pursue cases. [FN63]
Third, there is no clear consensus on how to determine whether a policy
is successful. Conviction rates, recidivism rates, deterrence, effective communication
of strong symbolic messages, and meaningful protection of victims are all
possible criteria for measuring the success of a prosecution strategy.
Nonetheless, several observations can be made.
First, early data indicate that aggressive prosecution policies can
reduce homicides. In San Diego, homicides related to domestic violence fell from thirty
in 1985 to seven in 1994, after successful implementation of its hard no drop
program. [FN64] Additionally, evaluations suggest that jurisdictions that
commit significant resources to domestic violence improve prosecution rates,
lower recidivism rates, and communicate a stronger message that domestic violence
will not be tolerated. [FN65] For
instance, San Diego, Seattle, Indianapolis, Duluth, and Quincy, Massachusetts,
have committed significant resources and thought to their programs,
*1865 and the criminal justice community generally hails these programs
as successes. [FN66]
Early evaluations
of arrest programs were critical of the lack of criminal prosecution following
on scene arrests. See, e.g., Zorza,
supra note 26, at 71.
[FN39]. See Gail Goolkasian, Confronting Domestic
Violence 55 56 (1986); Report of the Florida Comm'n, supra note 30, at 858;
Report of the Missouri Task Force on Gender and Justice (1993), reprinted
in 58 Mo. L. Rev. 485, 507 08 (1993) [hereinafter Report of the Missouri
Task Force]; Utah Task Force on Gender and Justice, Report to the Utah Judicial
Council (1990), reprinted in 16 J. Contemp. L. 135, 211 12 (1990); Vermont
Task Force Report on Gender Bias in the Legal System: Introduction and Executive
Summary, 15 Vt. L. Rev. 395, 404 05 (1991).
[FN40]. See Eve S. Buzawa & Carl G. Buzawa, Introduction
to Domestic Violence, supra note 13, at vii, xvii ('[P]rosecutors have consciously
assumed that the motivation and commitment of victims is a legitimate case
discriminator in deciding whether to prosecute an offender.'); McLeod, supra
note 15, at 399 401; Janell Schmidt & Ellen H. Steury, Prosecutorial
Discretion in Filing Charges in Domestic Violence Cases, 27 Criminology 487,
500 (1989) ('Decisions short of formal charging were ... made in cases in
which the burden of proof could conceivably be met, but the victim expressed
a desire for the prosecutor to be lenient.'); Kerry G. Wangberg, Reducing
Case Attrition in Domestic Violence Cases: A Prosecutor's Perspective, The
Prosecutor, Winter 1991, at 8, 8 ('High case attrition rates in domestic violence
actions can generally be classified under the ... rubric of 'victim reluctance.'').
[FN41]. See Cahn & Lerman, supra note 13, at 96
(stating that in the past prosecutors failed to proceed in domestic violence
cases because they believed that the victim perpetuated the abuse or that
battering was a 'minor dispute [ ]' or 'a private family matter'); Kathleen
Waits, The Criminal Justice System's Response to Battering: Understanding
the Problem, Forging the Solutions, 60 Wash. L. Rev. 267, 299 302 (1985)
(arguing that the legal system has used many rationales for nonintervention,
including family privacy, the perception that battering is a 'victimless crime,'
the notion that 'legal institutions are ill equipped to deal with complex
social and psychological problems' raised by battering, and the erroneous
stereotype that legal intervention hurts women).
[FN42]. See Asmus, Ritmeester & Pence, supra note
5, at 115; Cahn & Lerman, supra note 13, at 95.
[FN43]. See Asmus, Ritmeester & Pence, supra note
5, at 115, 124; see also Bella English, When a Victim Recants a Story, Boston
Globe, Jan. 10, 1994, at 15, 15 (describing the domestic violence charges
against a well known local talk radio host); Philip J. LaVelle, Budget's
New Victim: Domestic Violence, San Diego Union Trib., Oct. 30, 1992, at A1;
Laura Lippman, More Action Urged on Domestic Crime, The Sun (Baltimore), May
28, 1993, at B1 (reporting on the lack of police response to domestic violence
complaints).
[FN44]. See infra p. 1862 (noting legislative reforms);
infra note 205 (discussing exceptions
to spousal privilege laws that allow prosecutors to compel victim testimony
even when the parties are married).
[FN45]. For example, the Baltimore City State's Attorney's
Domestic Violence Unit was founded by then Assistant Baltimore State's Attorney
L. Tracy Brown, former Chair of the Baltimore City Domestic Violence Task
Force. See Rebecca Kolberg, Domestic
Violence Should Be Treated as a Crime, Panel Says, UPI, Apr. 18, 1985, available
in LEXIS, Nexis Library, UPI File. Sarah Buel, a formerly battered woman who is
today one of the foremost legal experts on domestic violence, developed the
Suffolk County and Norfolk, Massachusetts domestic violence units. See Patricia Nealon, With Mass. Domestic Violence
Up, DAs Launch a Raft of New Programs, Boston Globe, Nov. 2, 1992, at 23,
24.
[FN46]. See Cahn, supra note 13, at 164. The National College of District Attorneys
now sponsors a biannual conference on domestic violence prosecution, and the
number of participants has grown dramatically over the past six years. See
Casey G. Gwinn, The Path to Effective Intervention: Trends in the Criminal
Prosecution of Domestic Violence, The Prosecutor, Sept. Oct. 1993, at 17,
18 19.
[FN47]. The jurisdictions with aggressive, vertical,
or no drop policies include Alexandria, Virginia; Baltimore, Maryland; Brooklyn,
New York; Denver, Colorado; Duluth, Minnesota; King County, Washington; Los
Angeles, California; and San Diego, California. See Cahn, supra note 13, at 168; Gwinn, supra
note 46, at 19. Such policies are
discussed in more detail below. See
infra section I.C.
[FN48]. Currently, at least four states have adopted
legislation encouraging the use of no drop policies. See Fla. Stat. Ann. s 741.2901(2) (West Supp.
1995) (requiring the adoption of 'pro prosecution' policies and permitting
the prosecuting attorney to disregard victim reluctance when deciding whether
to pursue a case); Minn. Stat. Ann. s 611A.0311(2)(5) (West Supp. 1995) (requiring
all county and city attorneys to develop prosecution plans that address methods
for gathering evidence other than the victim's in court testimony); Utah
Code Ann. s 77 36 3(1)(e) (Supp. 1994) (disallowing judicial dismissal of
a domestic violence case at a victim's request unless there is 'reasonable
cause' to think that the victim would 'benefit'); Wis. Stat. Ann. s 968.075(7)(a)(2)
(West Supp. 1995) (directing all district attorneys' offices to 'develop,
adopt and implement written policies' that are not based on the victim's consent
to prosecute a domestic abuse case). In other states, the state's attorney general's
office has officially endorsed a no drop policy. See Corsilles, supra note 14, at 864 n.80.
Some states have encouraged more aggressive prosecution of domestic
violence cases but do not specifically address the impact of victim participation
on prosecutorial decisions. See, e.g., Cal. Penal Code s 273.8 .88 (West
Supp. 1996) (allocating funds for use by district attorneys' and city attorneys'
offices under the Spousal Abuser Prosecution Program); N.J. Stat. Ann. s 2C:25
18 (West 1995) (encouraging broad application of remedies in criminal courts
for domestic violence cases).
At the federal
level, the Violence Against Women Act authorizes grants to fund state domestic
violence coalitions that further the purpose of domestic violence intervention
and prevention through activities such as 'the adoption of aggressive and
vertical prosecution policies.' 42
U.S.C. s 10410(a)(2)(E) (Supp. V 1993). Furthermore, the federal government makes available 'model State
leadership grants' to 10 states that have statewide policies that '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 ... implement model projects that include either ... a 'no drop' prosecution
policy or ... a vertical prosecution policy.' Id. s 10415(b)(3)(A) (B).
Under vertical
prosecution policies, a specialized prosecutor or prosecution unit is assigned
the case after arraignment and stays with the case through its completion.
This strategy increases the likelihood of conviction.
See, e.g., Cal. Penal Code s 273.8 (West 1996).
Vertical prosecution policies also provide for a continuing relationship
between the victim and the prosecution.
[FN49]. See Cahn, supra note 13, at 167 68; Corsilles,
supra note 14, at 858 59.
[FN50]. See Cahn, supra note 13, at 167 68; Corsilles,
supra note 14, at 858.
[FN51]. See Corsilles, supra note 14, at 878.
[FN53]. See Cahn, supra note 13, at 168.
[FN54]. See Asmus, Ritmeester & Pence, supra note
5, at 136.
[FN55]. See Jan Hoffman, When Men Hit Women, N.Y.
Times, Feb. 16, 1992, s 6 (Magazine),
at 22, 26.
[FN56]. See Gwinn & O'Dell, supra note 8, at 313;
see also supra note 8 (discussing
California law).
[FN57]. See generally Cahn, supra note 13, at 169
71 (describing the victim advocate programs that are part of model prosecution
programs); Cahn & Lerman, supra note 13, at 102 03 (same).
[FN58]. Waits, supra note 41, at 307 (footnote omitted).
[FN59]. See infra note 80.
[FN60]. For example, in Marion County, Indiana, if
the victim still wants to drop charges after being counseled and supported
throughout the process, she may sign a drop form. See Corsilles, supra note 14, at 861.
[FN61]. See infra pp. 1906 08 (discussing prosecutions that go forward
without the victim's testimony).
[FN62]. See, e.g., Cahn, supra note 13, at 176 (finding
that the critical components in successful programs are 'commitment by the
office and changes in the attitudes and actions of individual prosecutors');
David A. Ford & Mary J. Regoli, The Criminal Prosecution of Wife Assaulters:
Process, Problems, and Effects, in Legal Responses to Wife Assault, supra
note 27, at 127, 157 (finding that allowing victims to drop cases may be more
effective in reducing violence and promoting victim autonomy and empowerment
than requiring victims to proceed); Gwinn & O'Dell, supra note 8, at 300
04 (noting that the San Diego program, considered a model program nationally,
requires significant resources).
[FN63]. See Report of the Missouri Task Force, supra
note 39, at 493 (finding that administration
of the comprehensive law reform efforts in domestic violence falls short);
Corsilles, supra note 14, at 854 55 (noting that despite tremendous legislative
reform, prosecutors still undercharge, decline to file charges, and recommend
dismissal frequently).
[FN64]. See Mark Hansen, New Strategy in Battering
Cases, A.B.A. J., Aug. 1995, at 14, 14.
[FN65]. See, e.g., Asmus, Ritmeester & Pence,
supra note 5, at 150 (describing the
success of the Duluth, Minnesota model); Cahn, supra note 13, at 175 77 (reviewing
innovative programs throughout the country); Gwinn & O'Dell, supra note
8, at 304 (describing the success of the San Diego model).
[FN66]. See Gwinn, supra
note 46, at 18.
Mandating
participation in all cases would be impossible on a practical level. Prosecuting domestic violence cases requires
an enormous commitment of resources. [FN218]
By committing significant resources
*1899 to domestic violence prosecutions, however, jurisdictions can
increase their conviction rates and decrease their domestic homicide, re
arrest, and re prosecution rates. [FN219]
Ultimately, such expenditures are a good investment because they
reduce violence in the long term, thus liberating women from abuse in their
homes. This Part discusses specific
measures that law enforcement officials can adopt to maximize their efforts
while reducing the risks of mandated participation to individual women.
A. Over Reliance on Victim Testimony
It is often
assumed that the willing testimony of the victim is the only way to ensure
a conviction and that domestic violence cases are too difficult to prove
because there is only one witness to the crime. Thus, even in no drop jurisdictions, prosecutors focus most of
their energies on trying to get women to agree to testify [FN220] and thus
fail to see the less obvious kinds of evidence that exist to prove the assault.
Although reliance on testimony may be necessary in individual cases,
sole reliance on victim testimony to prove a crime reinforces the notion
that domestic violence is a private matter, affecting only the victim.
Questions of agency and blame are also more likely to influence the
outcome of the proceedings if the prosecution focuses exclusively on what
the woman has to say about what happened.
Testimony is subjective narrative; emotional factors often color
the victim's story. [FN221] In court,
the woman needs to explain her actions and decisions in the relationship
in order to prove that her story is credible.
Furthermore,
the factfinder often evaluates individual testimony based on the person's
demeanor and credibility. Both Kim
Sheppele and Carol Gilligan point to the lack of credibility that people
often ascribe to women's stories in general. [FN222] In the courtroom, judges and juries simply
do not always listen to or understand what women have to say. In the context of domestic violence, there
is still a deep reluctance to hold men accountable for violent behavior
and a tendency to minimize the harms. Thus,
stories about being battered are often disregarded as a product of the victim's
psyche, rather than seen as a retelling of the truth. Although we clearly need to have women's stories told and their
voices heard, we also need to have those stories validated and believed. Demonstrating the truth of the stories with
extrinsic evidence lends greater credibility to women's experiences.
*1900 Additionally, victims of domestic violence often understate the situation,
try to protect the batterer, or blame themselves for the violence. As a
result, they do not always tell their stories in ways that accurately describe
the violence and its effects. Often,
batterers are found not guilty or receive very light sentences because the
state is not able to prove the extent of violence through the testimony
of the victim.
Almost all
of these outcomes are a result of poor lawyering. If prosecutors rely only on victim testimony to obtain convictions,
they are not doing their jobs, and may in fact be breaching their ethical
obligations. [FN223] Often, victim
testimony, particularly if it is reluctant or protective of the batterer,
may not be enough to present a legally sufficient case. In such cases, sole reliance on victim testimony can breach the
prosecutor's duty to 'apply reasonable standards, based not on loose assumptions,
but on solid evidence balanced in a scale demanding proof beyond a reasonable
doubt to overcome the presumption of innocence.' [FN224] When prosecutors pursue cases in which the
only evidence is victim testimony, judges and juries also begin to view
the prosecutor as a private agent of the victim rather than as a state agent
whose responsibility is to bring cases in which the presumption of innocence
can be overcome. The prosecution
then risks being characterized as motivated by politics or feminism rather
than by state policy objectives. This
categorization already occurs when prosecutors are assigned to 'specialized'
units, which often are not considered 'real' criminal divisions.
Should prosecutors
press cases in which the only evidence available is the testimony of a reluctant
or hostile witness? It depends.
In many cases it is possible to rely solely on victim testimony.
An abused woman may be extremely credible despite her reluctance,
whereas the batterer may tell such an incredible story that no finder of
fact could believe him. I handled
numerous cases in which the batterer's explanation for the victim's injuries
was so outrageous that no reasonable factfinder could have found him credible. Yet in other cases, the victim's testimony will not be sufficient
to overcome the prosecution's burden of proof.
These cases run the risk of being criticized as overzealous and politicized.
Thus, prosecutors need to take into account the circumstances of
each case and not expect to rely solely on victim testimony as a matter
of course.
[FN218]. Some jurisdictions that have appropriated
monies for specialized domestic violence units have had to scale back due
to budgetary constraints. Caseloads in specialized units can be staggering. In Baltimore City, for example, three attorneys
and two paralegals handle over 8000 cases per year. See Cahn, supra note
13, at 107, 171; Salzman, supra note 214, at 362 (noting that lack of funding
creates a 'formidable barrier' to the Quincy program and to domestic violence
prosecution throughout Massachusetts); Phillip J. LaVelle, Budget's New
Victim: Domestic Violence, San Diego Union Trib., Oct. 30, 1992, at A1
(stating that as many as 2000 domestic violence cases in San Diego would
go unprosecuted due to budget cutbacks).
[FN219]. See supra pp. 1893 94.
[FN220]. See Cahn, supra note 13, at 107.
[FN221]. See Kim L. Scheppele, Just the Facts, Ma'am:
Sexualized Violence, Evidentiary Habits, and the Revision of Truth, 37 N.Y.L.
Sch. L. Rev. 123, 126 27 (1992) (arguing that, because abused women interpret
their experiences as they experience memories of the abuse, stories about
the abuse can change as women realize over time what has happened to them).
[FN222]. See Carol Gilligan, Getting Civilized, 63
Fordham L. Rev. 17, 17 (1994); Scheppele, supra note 221, at 126 27.
[FN223]. See ABA Prosecution Function Standards Standard
3 1.2(b), (c) (1993).
[FN224]. Asmus, Ritmeester & Pence, supra note
5, at 134 35 (quoting Pugach v.
Klein, 193 F. Supp 630, 634 35 (S.D.N.Y. 1961)); see also ABA Prosecution
Function Standards, supra note 223, at Standard 3 1.2(b) ('The prosecutor
is an administrator of justice, an advocate, and an officer of the court;
the prosecutor must exercise sound discretion in the performance of his
or her functions.'); id. at Standard 3 1.2(c) ('The duty of the prosecutor
is to seek justice, not merely to convict.').