1) The Prosecutor and Not the Alleged Victim Makes the Decisions
If you have been charged with a domestic violence offense and feel certain the case will be dismissed because the Alleged Victim (A/V) does not want the case prosecuted, think again. Many people believe that a domestic violence prosecution is entirely driven by the A/V’s participation and that if that person does not want to participate in the case, it will be dismissed. The reality is that the A/V is not the one prosecuting the case, the City or State is prosecuting it on behalf of the people of Washington. Thus, it is not entirely up to the A/V what happens to the case and whether or not it will be pursued.
2) The System is Paternalistic
It is important to understand that the current perspective on domestic violence cases has been informed by the past. There was a time when women, primarily, complained that they were being abused in their relationships and the court system did not sufficiently address the problem. The pendulum has now swung very far in the other direction. When law enforcement has a report of a domestic violence assault, they arrest someone. My own experience with these cases leads me to believe that if the situation involves a man and a woman, the man is arrested more often than the woman, even if there is ample evidence to suggest it is actually the woman who is the perpetrator. All of the players in the criminal justice system have been conditioned not to listen to an A/V who is now saying there was no assault. When prosecutors hear this, they assume that the perpetrator has somehow pressured the A/V to change their story and they do not heed the wishes of the A/V. Instead, prosecutors tend to press forward in the case and often pressure the A/V to participate in the prosecution.
3) Is the Victim Advocate Really an Advocate?
When a domestic violence case is filed with the prosecutor’s office, a victim advocate is assigned. It is important to keep in mind that the advocate works for the prosecutor’s office and not for the A/V. In my experience, if the A/V is on board with the prosecution, the advocate does advocate for him or her. However, if what the A/V wants is for the case to be dismissed, the victim advocate does not generally fight for that outcome. The advocate is there to help manage the A/V for the prosecutor’s office and to help the prosecutor stay in touch with their star witness. If the A/V wants an outcome other than the case being prosecuted, they should consider getting their own counsel who is a real advocate and not an employee of the prosecutor’s office. They should also consult with their counsel before speaking with the victim advocate. I often represent A/V’s who want help convincing the prosecutor’s office to back off of prosecuting the case and I do so for a relatively small flat fee.
4) Can the Alleged Victim Be Forced To Participate in a Prosecution?
The safest route for an A/V who does not want to participate in a prosecution is to retain his or her own attorney. An A/V who does not want to participate in a prosecution may find him or herself being bullied by the prosecutor who wants to continue pursuing the case. An A/V should not speak to the prosecutor about “what happened” without first consulting counsel because the A/V may now be telling a very different story from the one he or she told the police who responded to the scene. Some prosecutors threaten the A/V with false reporting charges if the A/V told police there was an assault and now is saying that there actually was not an assault. This is one way the prosecutor can bully the A/V in to sticking to their original story. In addition, A/V’s who do not want to participate in a prosecution are often served with subpoenas ordering them to appear in court. A/V’s need the advice of their own counsel in order to decide how to deal with a court order to appear at a hearing or trial. Finally, many domestic violence arrests come out of a situation that actually involved both parties engaging in a physical fight. An A/V who hit the other party or destroyed their property may have possible exposure themselves to being charged with a crime and should not be put in a position where they have to testify about their own possible criminal conduct. Under these circumstances, it is imperative that the A/V has counsel of his or her own to advise and protect the A/V’s interests.
5) If the A/V Refuses to Participate, Doesn’t the Evidence in the Case Disappear?
There usually is more evidence than the statement of the alleged victim in the case. When the police arrived, they may have taken pictures of marks or injuries to the A/V. There often is a 911 recording which may be admissible at trial and is also evidence of what the A/V or some other witness said about the incident at the time. There may be a statement that was made to law enforcement by the person charged with the crime that is admissible evidence. There may be medical records, statements to medical personnel or an independent witness who saw or heard (or thought they saw or heard) something that looked or sounded like an assault. Both the person charged with a crime and the A/V who may not want to participate in a prosecution both benefit from having counsel obtain the other evidence in the case so that they may analyze the viability of the case independent of what the A/V said at the time of the incident and what the A/V is saying now. This may inform the strategy for handling the case moving forward.
DISCLAIMER: This post is intended to share my perspective, insights and some general information on various aspects of Domestic Violence Cases. It is not legal advice and is not intended to substitute for legal advice. You should consult an attorney to obtain legal advice for your individual situation and case.