PROSECUTORS
A variety of strategies have been
developed with the goal of improving prosecutor response to domestic violence.
The goals of any prosecutor policies or activities should be: (1) to protect
the victim, (2) to deter the defendant from further violent acts by holding
him accountable for his actions, and (3) to communicate to the community that
domestic violence will not be tolerated. Prosecutors should always ask the
question in domestic violence cases, even those with low level injuries, “Could
this end up a homicide?” One prosecutor writes: “We must make misdemeanors
matter. We must realize that true success is not prosecuting a murderer, it
is preventing the murder. It is not locking up offenders for decades, it is
stopping the violence so that escalating violence does not require prison
beds for most domestic violence offenders.” From Casey Gwinn, Making
Misdemeanors Matter, 3 Homefront (1998).
One important strategy for reforming
prosecutor response to domestic violence in the United States has been to
create dedicated domestic violence units with the state prosecutor’s
office—that
is, teams of prosecutors who prosecute only domestic violence cases. These
units can consist of not only attorneys but other important personnel
as well—advocates
who work with victims, investigators, and medical personnel. Some prosecutor’s
offices have centers or clinics that provide assistance in obtaining civil
orders for protection. These court orders
direct offenders to stay away from victims, their children and their home
for a period of time to protect a woman and her children.
Specialized domestic violence units have a number of advantages.
Such units: (1) allow prosecutors to develop expertise and knowledge
in the dynamics of domestic violence, (2) allow regular review
of policies and practices to ensure these policies best protect
victims and hold offenders accountable, (3) facilitate more aggressive
prosecution of even low level injury cases, (4) provide for earlier
intervention aimed at preventing the escalation of the violence,
and (5) allow for more efficient coordination
by the prosecution unit with other members of the community..
Many prosecutors’ offices have policies
that provide for prosecution of cases without the victim, if there is sufficient
independent evidence. These policies are sometimes referred to as “absent
victim” prosecutions. This strategy takes the prosecution burden off the victim
and places it in the hands of the state. An absent victim policy sends the
message to the offender and the community that the state sees domestic violence
cases as a community priority. An important goal of this policy is to eliminate
the incentive for batterers to threaten victims with further violence if they
pursue prosecution. One prosecutor’s office explains its “No Dismissal” policy
as follows:
Taking the responsibility for the prosecution
away from the victim, and placing it at the prosecution agency,
is done to insulate the victim from the batterer’s anger,
retaliation, and coercion to “drop” charges while
simultaneously recognizing the fact that the victims face a multitude
of competing survival necessities that may lead them to believe
that having the criminal case dismissed is ultimately in their
interest.
From Casey Gwinn, Domestic
Violence Prosecution Protocol, City Attorney City of San Diego Child Abuse/Domestic
Violence Unit (1999).
In absent victim prosecutions, the
initial gathering of evidence is especially critical. Because domestic violence
is perpetrated in the home and is rarely reported, the victim’s own testimony
is often the strongest evidence of the abuse. Because evidence is so important
in absent victim prosecutions, it is necessary for prosecutors to work with
police in developing and implementing effective strategies to collect additional
and supporting evidence.
It is important to note that not everyone agrees that state
control of domestic violence cases is always the best policy. When given complete
control over the case, prosecutors may even decide to compel the victim to
testify by subpoena. To transfer the decision about whether to pursue prosecution
from the victim to the state necessarily assumes that the government knows
better than victims themselves what is best. “At best criminalization of domestic
violence offers one option to crime victims who may or may not wish their
most personal problem (which is also a public problem) to be dealt with through
the idiosyncrasies of the laws of evidence and the trial process. From
Caroline G. Nicholl, Forcing Women to Testify Against Their Will: Does This
Protect or Predjudice Women?, Violence Against Women 30-10 (Joan Zorza ed.,
2002). The risk in transferring control over prosecution from the state to
the victim is that in fact, it may be the abuser, through threats and intimidation,
who is actually in control.
For an extensive discussion about the advantages and disadvantages
of absent victim discussion, see Daryl B. Coppoletti, It’s Time
to Take the Burden Off Victims in the Prosecution of Domestic Assault
Cases. The San Diego City Attorney’s Office
provides a slideshow, Prosecuting
Domestic Violence Cases Without Victim Notification.
Chapter 4 and Chapter
5 of the
Toolkit to End Violence Against Women, , created by the National Advisory
Council
on Violence Against Women and the United States Department of Justice’s Violence
Against Women Office, offer concrete strategies that can be used to improve
the response of the criminal justice system to domestic violence.
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