Domestic Violence—The Laws and the Courts - Filing Charges

In the past, the victims shouldered the burden of filing charges in domestic violence cases. Prosecutors and the courts offered victims little support or protection. Currently, the decision to charge offenders in cases of domestic violence is notable for having less to do with legal criteria than with evaluation of the victims' and offenders' personal attributes. Prosecutors are more likely to charge in cases where victims suffer serious injuries and defendants have a record of previous arrests. Negative characteristics in the offender, such as alcohol or drug use and the failure to comply with the police and courts, increase the likelihood that charges will be pressed. Yet, the same attributes in the abused woman call into question her status as an innocent victim. Eve Buzawa and Carl Buzawa explored these issues in Current Controversies on Family Violence (Newbury Park, CA: Sage, 1993). In the book they stated that more than a third of misdemeanor domestic violence cases would have been felony offenses of rape, robbery, or aggravated assault had they been committed by strangers rather than intimates.

Who should file the charges: the state through the prosecutor or the victim? In Confronting Domestic Violence: A Guide for Criminal Justice Agencies (Washington, DC: National Institute of Justice, 1986), advocates for the state filing the charges argued that this policy would:

• clearly establish spouse abuse as a crime
• force prosecutors to take domestic violence cases seriously and eliminate their reluctance to handle these cases because of their view that victims tend to seek dismissals or refuse to testify
• protect the community as a whole, since presumably innocent bystanders might be injured during future violence
• strengthen the criminal justice system's control over prosecution and increase the number of batterers convicted and held accountable for their actions (either through incarceration or court-ordered intervention)
• reduce the likelihood that batterers will intimidate and harass victims because they hold the victims responsible for their prosecution

Those recommending that victims file the charge argue:

• Battered women, when given full information, have the right and the ability to decide whether they want criminal justice intervention. For example, a battered woman might choose not to prosecute because she prefers civil remedies, faces life-threatening danger, fears race-biased sentencing, or would lose critical financial support.
• Civil remedies may be appropriate in some cases. If batterer counseling is viewed as a critical intervention, then it can be mandated through properly monitored and enforced civil protection orders, as well as through criminal action.
• There are other ways to address the potential for victim intimidation and harassment, including statutes that make intimidation of a witness a substantive crime and the use of protection orders a condition of release.
• Policies that eliminate victim discretion may serve to alienate battered women and discourage them from calling police or seeking other legal intervention in the future, thereby placing them in jeopardy of extreme injury or death.

Cheryl Hanna, in "No Right to Choose: Mandated Victim Participation in Domestic Violence Prosecutions," argued that many jurisdictions now have pro-prosecution policies that "treat domestic violence as a serious crime and recognize the ambivalence that abused women bring to the process" (Harvard Law Review, June 1996). However, not all pro-prosecution policies are the same—they might be "hard" or "soft." Under hard policies, batterers are prosecuted regardless of victims' wishes; government attorneys are required to file criminal charges against domestic violence offenders, and abused women are given no option to drop the case. However, under the soft policies of most jurisdictions, prosecutors do not force victims to take part in criminal proceedings, but instead provide support services and encouragement to continue the process of prosecuting abusers.

Should a Woman Be Forced to File?

Advocates who favor the victim filing charges agree that when the lives of others are clearly endangered, battered women must be expected to cooperate with the prosecution. To pressure women to testify, some prosecutors have charged them with filing false police reports and perjury or lying to the court. In rare instances, they have been jailed. Some prosecutors see this as a further abuse of an already demoralized woman, while others claim that allowing the woman to drop charges sends the message that the court does not take her problems seriously.

Victims' advocates claim that when the courts help women file charges and support them throughout the process, many more women follow through—an endorsement for "soft" pro-prosecution policies. For example, in Brockton, Massachusetts, a court found that 71% of women who obtained restraining orders did not appear at their hearings ten days later. In comparison, in a Quincy, Massachusetts, court with a separate office for restraining orders and support groups for the women, only 2.8% of the women failed to show at their hearings.

Some research reports an unintended result of hard, no-drop policies: Battered women who were given the option to drop charges were at lower risk for subsequent violence than women who were not allowed to drop charges. Simply being able to participate in decision making with authorities served to empower the women. This finding is consistent with the observations of Carolyn Hoyle and Andrew Sanders in "Police Response to Domestic Violence: From Victim Choice to Victim Empowerment?" (British Journal of Criminology, vol. 40, 2000), who advocated for policies to empower, rather than to further disable victims of domestic violence.