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Prosecuting domestic violence without victim co-operation

Published: 
Sunday, November 15, 2015

The incidence of victims of domestic violence refusing to prosecute their abusers or withdrawing their co-operation after a charge is laid is not unusual and many times perfectly understandable. But when that happens, should the police continue the prosecution? Can they?

To answer the first question, one must gain some appreciation of why a woman who has been on the receiving end of acts of wanton cruelty could nevertheless persuade herself that it is in her interest to keep her abuser out of jail, or worse to stand by him when the state, and the public, consider his acts of violence to be so serious as to warrant a prosecution without her consent.

There are a number of reasons for such seemingly contradictory and self-harming behaviour, many having to do with the nature of the relationship from which the violence springs. At its most pure, there may be a genuine desire not to inflict harm on someone the victim feels love for, to cause him to lose his job, or fall out of favour with his friends and family. Or it may simply be to protect the children of the union from the indignity of their father being imprisoned. There may be financial considerations as well. A woman who is financially dependent on her partner for a place to live or food on the table would naturally think twice before possibly subjecting herself to the insecurity of her benefactor being put behind bars. Studies show that women are usually financially worse off than their former partners when a marriage or common law relationship goes awry. A successful prosecution could make the victim financially worse off.

Or there may be the more straightforward desire to give the relationship another chance. As usually happens, the abusers appear contrite, begs for forgiveness and promises that it will never happen again. 

Then there is the basic fear, born of lack of confidence in the legal system, that her abuser may yet escape conviction and take revenge on her for encouraging the prosecution. Studies show that men who are prosecuted subject their partners to further domestic violence within a relatively short period of time. The feeling that the victim is exposed to greater danger because of the prosecution might also be exacerbated by her experience of the criminal justice system which she perceives accords the accused too many rights. She might feel that the odds are stacked against her. Add to that the sense of loneliness and alienation she might experience when law enforcement officials treat with her insensitively, or do not appear to take her claims seriously. In fact, some prosecutors tacitly discourage victims “by questioning (them) in a manner that conveys blame or disbelief, or by actively outlining the disadvantages of prosecution.” 

Overriding all of this is the condition of dependence and helplessness women subjected to frequent battering experience. The paralyzing fear which a battered woman endures robs her of her ability to take decisions for her own betterment. In a variant of the Stockholm syndrome, she finds herself denying or minimising her partner's violent characteristics, focusing on his positive traits and becoming hypersensitive to his needs to the detriment of her own.

All this means that we should be very slow to condemn an abused woman who shows compassion towards her abuser. We should also recognise that battered women need the protection of the State and we should view domestic violence, not as a private affair between otherwise consenting adults, but as an assault on the State itself. Viewed in this light, it is the State, not the abused woman, who is the true complainant in the criminal proceedings and her desire not to proceed should not be a determining factor. In other words, it is the police who should control the initiation and direction of the prosecution, not the victim. Approaching domestic violence in this way sends the clear message to abusers that domestic violence is to be treated institutionally as a serious crime.

In many states in the United States, law enforcement authorities have taken on the responsibility of driving prosecutions in domestic violence cases and have adopted a policy, made known to victims and abusers, that they will not drop a case because the victim decides not to co-operate. In those states, there have been surprising results. Compared to states which do not practice the ‘no-drop’ policy, fewer victims withdraw their co-operation, and some that initially ask that the case be dropped, later change their minds and end up co-operating. There is also some evidence that a more proactive attitude on the part of the police has led to some abusers curtailing their violent ways once they appreciate that the victim is not in control of the case. Some prosecutors report that abusers more readily plead guilty.

But can the prosecution proceed without the victim’s co-operation? Obviously, it would be more difficult to prove a case of abuse without direct evidence from the abused. But it all depends on what other evidence the police have managed to collect. A video recording of the incident or third party eyewitnesses would obviously make the prosecution viable. Short of that, the case may have to be dropped. But the fact that it is to be expected that victims of domestic violence might change their minds should change the way law enforcement officers approach domestic violence cases. They should assume that the victim will eventually change her mind and conduct their investigation to suit. For example, they should be careful to take note of the victims injuries, take photographs if possible, record the state of the premises, and any other corroborating evidence. In other words, they should approach their investigation in much the same way as they investigate a murder, where the victim obviously is not available to say what the perpetrator has done. Adopting such an approach would itself send the signal that law enforcement authorities take domestic violence seriously.

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