Donna Willa, "Forum: Mandatory Prosecution in Domestic Violence Cases: Domestic Violence: The Case For Aggressive Prosecution," U.C.L.A. Women's L. J., Spring/Summer 1997

[Note: The numbers in the brackets refer to the original page numbers of the text.]

* Head Deputy, Family Violence Division of the Los Angeles County District Attorney's Office; J.D., Boston University School of Law, 1976.

SUMMARY:
... Prosecutors throughout the country, and especially in the State of California, have begun
taking a more aggressive stance towards domestic violence prosecutions by instituting a "no
drop" or "no dismissal" policy. ... First, domestic violence affects more than just the individual
victim; it is a public safety issue that affects all of society. ... Thus, aggressive prosecution
furthers the State's goal of protecting not only the victim, but also the children in homes where
domestic violence occurs. ... Prosecutors realize all too well that criminal intervention alone may
not be the ultimate "cure" for domestic violence any more than it is a complete solution to gang
violence, carjackings, sexual assaults, child abuse, or any other kind of anti-social violence
perpetrated by one human being against another. ... We need to be able to say that despite a
battered woman's ambivalence, we did everything within our discretion to reign in the batterer, to
protect the victim and her children, and to stop the abuser before it was too late. ... Supporters of
"no drop" domestic violence policies realize that empowering victims by giving them the
discretion to prosecute, or even to threaten to prosecute, in actuality only empowers batterers to
further manipulate and endanger their victims' lives, the children's lives, and the safety and
well-being of the entire community. ...

TEXT:
[*173]

I. Introduction

Prosecutors throughout the country, and especially in the State of California, have begun taking a
more aggressive stance towards domestic violence prosecutions by instituting a "no drop" or
"no dismissal" policy. n1 Based on my experience as a veteran prosecutor who specializes in
these cases, I firmly believe that this policy is the enlightened approach to domestic violence
prosecutions. Fundamentally, a "no drop" policy takes the decision of whether or not to prosecute the batterer off the victim's shoulders and puts it where it belongs: in the discretion of the prosecutors whose job it is to enforce society's criminal laws and hold offenders accountable for their crimes. The prosecutor's client is the State, not the victim. n2 Accordingly, prosecutorial
agencies that have opted for aggressive prosecution have concluded that their client's interest in
protecting the safety and well-being of all of its citizens overrides the individual victim's desire to
dictate whether and when criminal charges are filed.

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n1. See Bettina Boxall & Frederick M. Muir, Prosecutors Taking a Harder Line Toward Spouse
Abuse, L.A. Times, July 11, 1994, at A1 (discussing the City of Los Angeles' mandatory arrest
policies and how domestic violence cases are prosecuted in six California counties).

n2. The prosecutor's actual client is the people of the state, commonwealth, or governmental
jurisdiction by whom the prosecutor is employed. Thus, the plaintiff in a criminal case, unlike a civil case, will always be the government, commonly called "The State" or "The People."

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Aggressive prosecution is the appropriate response to domestic violence cases for several
reasons. First, domestic violence affects more than just the individual victim; it is a public safety
issue that affects all of society. Second, prosecutors cannot rely upon domestic violence victims
to appropriately vindicate [*174] the State's interests in holding batterers responsible for the
crimes they commit because victims often decline to press charges. Third, prosecutors must
intervene to protect victims and their children and to prevent batterers from further intimidating their victims and manipulating the justice system.

II. Domestic Violence is a Public SafetyIssue

Domestic violence is a societal, not merely an individual, problem; it is not just about two people in a private relationship working out their "family problems." The harm caused by this violence refuses to be neatly confined between the abuser and the victim. Rather, domestic violence impacts everyone: children, neighbors, extended family, the workplace, hospital emergency rooms, good samaritans who are killed while trying to intervene, and the death row inmates who cite it as a reason not to be killed. n3 The State has a legitimate interest in maintaining public safety, especially by ensuring that domestic violence offenders are not allowed to flourish unabated.

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n3. A large percentage of death row inmates report having domestic violence or child abuse in their backgrounds.

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Domestic violence advocates were correct in supporting laws that codified domestic violence as
both a crime against the individual and a crime against the State. When prosecutors file charges,
we enforce these laws and reinforce the fact that domestic violence is criminal conduct. In
California, the Penal Code explains why special attention should be devoted to the prosecution of
batterers: "The Legislature hereby finds that spousal abusers present a clear and present danger to the mental and physical well-being of the citizens of the State of California." n4 Besides being "an unacknowledged epidemic in our society," n5 domestic violence is the leading cause of injury to women, n6 a major factor in female homicide, n7 a contributing factor to female [*175] suicide, n8 a major risk for child abuse, n9 and a major precursor for future batterers n10 and violent youth offenders. n11 The State cannot ignore the human tragedies that are caused by domestic violence.

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n4. Cal. Penal Code 273.8 (West 1988) (amended 1994) (emphasis added).

n5. Jill Smolowe, When Violence Hits Home, Time, July 4, 1994, at 20 (quoting United States
Department of Health and Human Services Secretary Donna Shalala).

n6. See Boxall & Muir, supra note 1, at A1 (citing 1992 United States Surgeon General statistics). Domestic violence is the leading cause of injuries to women ages 15 to 44. See Michele Ingrassia & Melinda Beck, Patterns of Abuse, Newsweek, July 4, 1994, at 26, 26-28 (citing 1992 United States Surgeon General statistics).

n7. According to the Federal Bureau of Investigation's 1992 statistics, 29% of female murder
victims were killed by a spouse or boyfriend. See Boxall & Muir, supra note 1, at A1. An estimated 1,400 women are killed by domestic violence each year. See Ingrassia & Beck, supra note 6, at 26.

n8. California Comm'n on the Status of Women, State of Cal. No. 3, A Profile of California Women 11 (1993) (citing statistics from The National Clearing House for the Defense of Battered Women).

n9. See Howard Davidson, The A.B.A. Young Lawyers Division, The Impact of Domestic Violence on Children: A Report to the President of the American Bar Association, 18 (1994) .

n10. See id. at 1.

n11. "Violent youths are four times more likely than nonviolent youths to come from homes where
mothers were beaten by fathers." Violence Begins at Home, N.Y. Times, July 5, 1994, at A16.

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The primary duty of government is to protect its citizens from assault as vigorously in the home as
on the streets. The victims subject to domestic abuse are often not the only people who suffer.
Most notably, children are secondary victims of violence in the home. The link between domestic
violence and child abuse, both emotional and physical, cannot be ignored. n12 Each year,
between three and ten million children are forced to witness the emotional devastation of one parent abusing or killing the other. n13 Many are injured in the "crossfire" while trying to protect the assaulted parent, or are used as pawns or shields and are harmed by blows intended for someone else. Some are born with birth defects because their mothers were battered during pregnancy. n14 Children of domestic violence are silent victims who suffer without the options available to adults. Thus, aggressive prosecution furthers the State's goal of protecting not only the victim, but also the children in homes where domestic violence occurs.

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n12. See Susan M. Ross, Risk of Physical Abuse to Children of Spouse Abusing Parents, 20 Child Abuse & Neglect 589 (1996) (discussing a study finding that marital violence is a statistically significant predictor of physical child abuse. The greater the amount of violence against a spouse, the greater the probability of physical child abuse by the aggressive spouse).

n13. See Davidson, supra note 9, at 1 (citing Bonnie E. Carlson, Children's Observations of
Interpersonal Violence, in Battered Women and Their Families 160 (Albert R. Roberts ed., 1984); Murray A. Straus, Children As Witnesses to Marital Violence: A Risk Factor for Life Long Problems Among a Nationally Representative Sample of American Men and Women, Paper presented at the Ross Roundtable on "Children and Violence" (Sept. 1991)).

n14. Id. at 1.

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Researchers have yet to determine the extent to which aggressive prosecution actually combats
the problem of domestic violence. Although some recent studies have questioned [*176]
whether mandatory arrest of batterers is beneficial in deterring domestic violence, such studies
are misleading. n15 No studies have focused on the incremental effects that aggressive
prosecution has had on controlling, if not eliminating, recidivism. n16 Nor has current research
addressed the role of aggressive prosecution in decreasing the public's tolerance of domestic
violence. n17 Prosecutors realize all too well that criminal intervention alone may not be the
ultimate "cure" for domestic violence any more than it is a complete solution to gang violence,
carjackings, sexual assaults, child abuse, or any other kind of anti-social violence perpetrated by
one human being against another. n18 Indeed, criminal intervention does not guarantee that a
batterer will forever refrain from further violence. However, failure to try to achieve this goal is not an acceptable alternative. Research notwithstanding, aggressive prosecution of batterers is a criminal justice decision predicated on what is best for the common good, not a scientifically formulated antidote guaranteed to transform batterers into peaceful spouses or model partners.

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n15. See Richard A. Berk, What the Scientific Evidence Shows: On the Average We Can Do No Better Than Arrest, Domestic Abuse Project Res. Update, Summer 1994, at 1 (discussing recent study results ranging from "no difference" when arrested to differential effects depending on the offender's employment and marital status).

n16. See Jeffrey Fagan, U.S. Dep't of Justice, The Criminalization of Domestic Violence: Promises and Limits 31 (1995) (explaining that few empirical studies use research or evaluation designs that can detect deterrent effects of legal sanctions).

n17. See id. at 5 (explaining that "with few exceptions, research and evaluation on legal reforms
and innovations focused on their operational goals and on their outcomes but almost never on their effects").

n18. Domestic violence victims need special consideration because, unlike victims of stranger
violence, they are susceptible to continuing influence and contact with their abuser. The best
approach is to use criminal intervention in a coordinated effort to provide services for the victims and their children. It is particularly important to provide them with easy access to protective orders, witness protection and relocation, shelters, and counseling/financial/job training assistance from government, health, social and community service providers.

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III. Domestic Violence Victims Routinely "Refuse toProsecute"

Domestic violence is not confined to any one segment of the population; it crosses race, n19 social class, n20 gender, n21 and voca- [*177] tional lines. n22 However, no matter how heinous the assault, the great majority of domestic violence victims have one characteristic in common: after making the initial report, they have neither the will nor the courage to assist prosecutors in holding the abusers criminally responsible. n23

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n19. The purple, green, and black bruises show up as evidence of violence on all colors of skin.

n20. Reports of domestic violence come from the poor and disenfranchised underclass, from the
protected sanctuary of the respected middle-class, and, every now and then, from the rarified ranks of the privileged upper class.

n21. Over 90% of the time, the victim is female. Crime & Violence Prevention Ctr. Cal. Att'y Gen. Off., Violence Prevention: A Vision of Hope 163 (1995) [hereinafter Vision of Hope].

n22. The victims are anyone - substance abusers, lawyers, teen mothers, teachers, housewives,
preachers' wives, law enforcement officials, secretaries, factory workers, hairdressers, actresses,
and T.V. broadcasters.

n23. The reasons why women find themselves unable to hold their abusers responsible are as
varied and significant as those which compel victims to stay in an abusive relationship, as
fundamental as financial dependency and fear, as ethereal as love and loyalty, and as confused as
low self-esteem, outright denial, and self-blame.

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Prosecutors and the courts have taken a long time to accept that a domestic violence victim's
"refusal to press charges" is the norm in domestic violence prosecutions. Indeed, prosecutors
traditionally are reluctant to charge batterers because victims frequently change their minds and
later drop the charges. n24 Faced with having to testify in court, domestic violence victims,
especially battered women, routinely either recant, minimize the abuse, or fail to appear.

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n24. See Fagan, supra note 16, at 4 (noting that "prosecutors failed to actively pursue cases where victims and offenders had intimate relationships, fearing that women might drop charges") (citation omitted).

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A domestic homicide case I prosecuted in 1987, People v. Houston, n25 illustrates the battered
woman's dilemma. Donna Houston, a twenty-nine year old mother of two, was shotgunned to death at her place of employment by the defendant, her thirty year old estranged husband. During their brief one year marriage, Donna reported escalating attacks by her jealous husband on three
separate occasions. Early in the marriage, Donna's ten year old son witnessed the defendant push
his mother into a bookshelf, causing a heavy statue to fall and lacerate her head. Donna later
"minimized" this incident by telling police that her injury was an accident and no charges were
filed. Months later, after another argument, Donna's husband stabbed her in the face with scissors, causing a serious jagged laceration. Only after she pleaded with him for medical help and promised not to report his behavior to authorities did he take her to the emergency room [*178] for sutures to close the gaping wound. When Donna told the hospital staff what had happened, they called the police who arrested the defendant when he returned to the hospital to pick her up. The defendant had no prior record, but due to the seriousness of Donna's injury, the stabbing incident was filed as a felony spousal assault. A few days before the preliminary hearing, Donna came to the District Attorney's Office and insisted that she wanted to drop the charges. She had reconciled once again with the defendant and wanted to give their marriage another chance. When told that the prosecution would not be dismissed, Donna made herself "unavailable" to testify by going to New Jersey for an unscheduled "family visit." The case was dismissed for insufficient evidence to proceed.

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n25. No. A569469 (Cal. Super. Ct. 1987).

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Donna's girlfriend later testified that the parties subsequently separated and that when Donna
refused to talk to him, the defendant tried to run Donna and the girlfriend off the road. Donna did not report this incident. Later, the defendant went to the baby-sitter's residence, grabbed their five month old daughter from Donna's arms, and then led the police on a high speed chase, with the baby unrestrained in his van. He was apprehended and arrested and the child was safely returned to her terrified mother. Despite Donna's pleas, the defendant's wealthy family promptly posted his bail. On the same day he was released, the defendant bought a 12-gauge shotgun and ammunition from the local gun store. The next morning, he waited in the parking lot where Donna worked. As she walked out the back door, she saw him emerge from his hiding place and tried to run back into the building, but it was too late. The defendant shot Donna, delivering a fatal wound to her neck, in broad daylight, at close range, in front of six horrified co-workers. The defendant was convicted of first degree murder while lying in wait and is currently serving a sentence of life without possibility of parole. Donna's two minor children, now orphaned, are being raised by their maternal grandparents.

The defendant's escalating attacks on his wife and her initial refusal to cooperate with his
prosecution demonstrate a classic scenario in domestic violence cases. Regrettably, many
battered women fail to see that criminal intervention can assist in the shared goal of getting their
abuser to stop the violence. Too often, they will seek to jettison prosecution of their batterer in favor of concerns inconsistent with their safety and the safety of their children. Too frequently, they are desperate to forgive and [*179] forget and to placate the abuser. Instead of criminal intervention, they dare hope to ease the violence by well-learned methods of coping. However, prosecutors have learned from the carnage and despair we have witnessed in domestic violence cases that victims cannot afford to forgive and forget and that the only thing worth negotiating is how much incarceration and how much mandated counseling is necessary to stop the batterer.

Cases like Donna Houston's remind prosecutors that while we wait for the battered woman to
garner her "inner strength" to decide whether to press charges, harm continues to occur. Children
are psychologically damaged from witnessing the battering, a child is placed in danger of physical
injury or death, hospital emergency rooms are filled by injured women, n26 and innocent third
parties are endangered by assaults intended for someone else. Domestic violence prosecutors are
haunted by tragedies like Donna Houston's. We need to be able to say that despite a battered
woman's ambivalence, we did everything within our discretion to reign in the batterer, to protect the victim and her children, and to stop the abuser before it was too late.

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n26. "One study showed that 30% of injuries of women seen in emergency rooms have been
caused by battering." Vision of Hope, supra note 21, at 164.

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IV. Batterers Must Not Be Allowed to ControlJustice

Batterers are "master manipulators." n27 They will do anything to convince their victims to get the
prosecution to drop the charges. They call from jail threatening retaliation. They cajole their victim
with promises of reform. They remind her that they may lose their jobs and, hence, the family
income. They send love letters, pledging future bliss and happiness. They have their family
members turn off the victim's electricity and threaten to kick the victim and her children out into the street. They pay for the victim to leave town so that she will not be subpoenaed. They use
community property to pay for an expensive lawyer to try to convince the jury that the whole thing was the victim's fault and that she attacked him. They prey on the victim's personal weaknesses, especially drug and alcohol abuse, physical and mental disabilities, and her love for their children. They negotiate financial and property incentives that cause acute memories [*180] of terror and pain to fade dramatically. Prosecutors watch with practiced patience as these vulnerable victims succumb to their batterers' intimidation and manipulation. Then, "no drop" prosecutors try to hold the batterers responsible regardless of the victims' lack of cooperation by using creative legal maneuvering. n28

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n27. Marlene Sanchez, Which Way L.A. (KCRW radio broadcast, Nov. 9, 1995). Marlene Sanchez is the Assistant Head Deputy of the Family Violence Division, Los Angeles County District Attorney's Office.

n28. To overcome victim reluctance to cooperate, prosecutors rely upon other corroborating
evidence such as other witnesses, "911" tapes, medical records, crime scene and injury photos,
weapon recovery, and suspect statements. Prosecutors may also use a battered woman expert to
explain why domestic violence victims recant. The Los Angeles County District Attorney's Family
Violence Division relies on vertical prosecution of domestic violence cases by specially trained
attorneys, investigators, and victim advocates. Vertical prosecution is the preferred method where one attorney is specially assigned to handle the case from beginning to end. As a result of vertical prosecution and a "no drop" policy, the Division enjoys an 88% conviction rate for its domestic violence cases.

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Supporters of "no drop" domestic violence policies realize that empowering victims by giving them the discretion to prosecute, or even to threaten to prosecute, in actuality only empowers batterers to further manipulate and endanger their victims' lives, the children's lives, and the safety and well-being of the entire community. n29 By proceeding with the prosecution with or without victim cooperation, the prosecutor minimizes the victim's value to the batterer as an ally to defeat criminal prosecution. A "no drop" policy means prosecutors will not allow batterers to control the system of justice through their victims.

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n29. See Casey G. Gwinn & Anne O'Dell, Stopping the Violence: The Role of the Police Officer and the Prosecutor, 20 W. St. U. L. Rev. 1501, 1514-16 (1993) (discussing strategies that develop a focus on the abuser).

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Some critics of aggressive prosecution worry that "no drop" policies endanger victims by angering
already volatile batterers. They argue that "jail doesn't do the batterer any good." However, arrest and prosecution of batterers does not endanger victims; batterers who attempt to control their mates through threats and violence endanger victims. Sentencing batterers to jail does not
endanger victims; batterers who believe there is no higher authority than themselves endanger
victims. Truly, it is the batterer who is responsible for the violent acts he chooses to commit, with
or without criminal justice intervention. Even if jail does not guarantee rehabilitation, we would
certainly rather incarcerate batterers than continue to "intern" their victims by forcing them into
shelters to be safe.

Victims who shield their batterers from criminal sanctions naively accept responsibility to stop the
batterer on their own, primarily by verbal persuasion. This approach is risky because [*181] the
victim may be less objective in recognizing the lethal potential of everyday batterers. The criminal
justice system, on the other hand, sees a wide spectrum of batterers. It also has more resources
to assist in evaluating the danger a batterer poses to the victim. In addition, the criminal justice
system can back up its intervention with incarceration to make the batterer understand that there is a price to pay for hurting a spouse or intimate partner and an "I'm sorry, I didn't mean it" may not suffice. Incarceration is a legitimate "therapy" to persuade the abuser to reconsider before resorting to violence. In addition to incarceration, mandatory rehabilitative counseling can be imposed, because very few batterers would voluntarily submit to counseling without the threat of jail.

When the 911 call is made to law enforcement, the criminal justice system is triggered. When the
report of violence is made, that moment signifies that the victim is without the power to get the
batterer to stop the violence. However, the criminal justice system is not without power to
encourage the batterer to cease and desist. Arrest and prosecution, however temporary, serve
notice on the batterer that what he did was wrong and warrants his immediate removal from the
community. It also gives the victim a breather - time and opportunity to access counseling
services, to investigate alternatives to life with a violent partner, to form a plan for safety, and to
have authority focused on the batterer to stop the violence.

Prosecutors are aware of complaints that "no drop" policies make battered women feel "powerless" to keep the government, specifically the courts, from "interfering" in their lives. Some object to the court "dictating" what will happen to the case and the abuser in the aftermath of reporting the abuse. However, prosecutors must seize the "window of opportunity" given to us by the report of violence to get the batterer's attention. Working closely with victim advocates, prosecutors try to convince battered women to see the wisdom of criminal justice intervention. We tell the victims that we proceed with the prosecution because we cannot allow the batterer to believe that physical abuse is acceptable. We tell them that left without intervention, the violence may increase both in frequency of occurrence and severity of injury, often leading to the tragic scenario where he kills her n30 [*182] or she kills him while defending herself against his aggression. n31 We tell victims that the children suffer when they see their mother hurt and that the children need their mother to stay alive and well. We try to help them form a safety plan and deal with their fear, financial concerns, and future uncertainties, with or without the batterer.

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n30. "In 1993, female homicide victims in California were 15 times more likely than male victims to be killed by their spouse/partner (35% vs. 2.3%)." Vision of Hope, supra note 21, at 43.

n31. "Nationwide about one third of the women in prison for homicide have killed an intimate ...."
Ingrassia & Beck, supra note 6, at 33 (citing Bureau of Justice Statistics).

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V. Conclusion

Aggressive prosecution of domestic violence offenders rejects the notion that victims should be
given the choice of whether to press or drop charges. No humane society can allow any citizen,
battered woman or otherwise, to be beaten and terrorized while being held emotionally hostage to love and fear or blackmailed by financial dependence and cultural mores. As guardians of public safety, prosecutors must proceed against domestic violence offenders with or without victim cooperation as long as there is legally sufficient evidence. This policy of aggressive prosecution adopts the wisdom that "there is no excuse for domestic violence." n32 It tells batterers that violence against intimate partners is criminal, that offenders can and will go to jail, and that their victim's refusal to press charges is not a "get out of jail free" card.

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n32. National Campaign Slogan, Family Violence Prevention Fund (1993).

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