| le> | | | | victims to have them hauled into court. In other |
| In case you didn’t know, we are living in a | | | | instances, prosecutors will go so far as to charge |
| state where uncooperative victims of domestic | | | | victims with contempt of court for failing to appear. |
| violence are ducking and running from prosecutors | | | | Thus, it is not unheard of these days where both the |
| and investigators who wish to compel their | | | | accuser and the accused are facing criminal charges. |
| testimony. At this very moment, thousands of | | | | Furthermore, frightening cat and mouse games are |
| victims are holed up in their homes or are on the | | | | being played out on the streets as a result of the |
| lam in their attempts to avoid contact with law | | | | District Attorney’s current position of chasing |
| enforcement officials. | | | | after victims. Government officials are pounding on |
| I have many concerns about the | | | | the doors of victim’s homes, going to |
| government’s aggressive practice of pursuing | | | | victim’s work places, and conducting around |
| uncooperative victims and I believe there needs to | | | | the clock surveillances of the victim’s known |
| be a change in the way our criminal justice system | | | | hangouts. Meanwhile, victims are taking time off of |
| handles first time offenses involving domestic | | | | work, refusing to answer their phones, and booking |
| violence. | | | | trips out of the state to avoid detection. |
| The Recanting Victim | | | | At the risk of being labeled a proponent of domestic |
| The recanting victim phenomenon is nothing | | | | violence, I believe it is time for a change in the way |
| new. Any professional who has ever worked with | | | | our system handles cases involving uncooperative |
| domestic violence cases knows that a great number | | | | and recanting victims of domestic violence. My belief |
| of people who report domestic violence frequently | | | | that we need to change the criminal justice |
| change their mind about pressing charges, once things | | | | system’s method for handling these cases is |
| have cooled off and reality sets in about the | | | | based on the following four arguments: |
| consequences of a criminal conviction. It is often the | | | | 1) The government’s position of not listening |
| case that the accused and accuser make up, move | | | | to victim’s of domestic violence when they do |
| back in with one another, and attempt to make | | | | not wish prosecution is based on a flawed |
| things better. | | | | assumption that these people cannot think for |
| Out of concern for people inflicted with the | | | | themselves. Most people who call the police because |
| Domestic Violence Syndrome (i.e., people who | | | | of a domestic disturbance do not suffer from |
| are perpetually trapped in abusive relationships), | | | | Domestic Violence Syndrome. After all, women are |
| prosecutors have adopted the philosophy that it is | | | | much more independent than they were in the past, |
| their job to rescue victims from making the wrong | | | | and it is much easier for people to leave relationships |
| decision, and that it is their ethical duty to bring the | | | | these days with the help of emergency protective |
| perpetrator to justice, in spite of the consequences a | | | | orders issued by the police and restraining orders |
| conviction will have on the parties’ relationship | | | | issued by the family courts. |
| or family. | | | | 2) If a person truly wants to continue in a relationship |
| The Use of Spontaneous Statements | | | | or has hopes of keeping a family together, why is |
| Using an exception to the hearsay rule, often called | | | | the government so quick to interfere with that |
| the excited utterance doctrine, prosecutors | | | | decision? Isn’t it a no-brainer that a criminal |
| used to successfully prosecute domestic violence | | | | conviction for domestic violence is likely to damage |
| cases, when the victim either refused to testify or | | | | the relationship, especially where there has been a |
| recanted his or her statement. During trial, the | | | | loss of liberty or employment opportunities? |
| prosecutor would simply play the 911 tapes taken | | | | 3) If our main concern in these cases is to protect |
| from the incident and call the responding officer to | | | | victims of domestic violence, why are we making it |
| the stand who would testify as to what the victim | | | | scary for people to call the police? Certainly in some |
| told him about the incident during the investigation. | | | | cases it is appropriate for the police to simply keep |
| This type of evidence was permitted under the | | | | the peace without making an arrest. However, with |
| theory that the victim’s spontaneous | | | | the current policy, people who are deserving of this |
| statements were reliable since they were made | | | | basic police service do not call the police because of |
| when the victim was under a great deal of stress | | | | the severe consequences that usually follow. |
| from the incident, and therefore the victim was not | | | | 4) Why is our government wasting so much money |
| likely to have fabricated his or her story. | | | | chasing after recanting victims when the likelihood of |
| Prosecutors knew that it was much easier to secure | | | | obtaining a conviction is so little? Although I do not |
| a conviction when the victim refused to cooperate, | | | | have statistics to support this argument, I know |
| given the impossibility for the defense to cross | | | | from being in court that there is an enormous |
| examine a 911 tape or a police officer who is merely | | | | increase in the amount of these cases dismissed in |
| regurgitating what the victim had said during the | | | | spite of the government’s expenditures in |
| investigation. Thus, the preferred domestic violence | | | | attempting to locate uncooperative or recanting |
| case for most prosecutors was one in which the | | | | victims. |
| victim refused to cooperate and never set foot in | | | | A New Approach- Domestic Violence Diversion |
| the court room. | | | | Programs |
| The Crawford Decision | | | | In a state that has shown drug addicts a great deal |
| In 2003, the glorious days of prosecuting domestic | | | | of compassion by decriminalizing the use and |
| violence cases came to a screeching halt based on a | | | | possession of drugs and by creating diversion |
| United States Supreme Court decision entitled, | | | | programs, I believe we should be more sympathetic |
| Crawford v. Washington. According to the | | | | to uncooperative victims and their families who wish |
| Crawford decision, the Confrontation Clause excludes | | | | to stay together. People who call the police regarding |
| "testimonial" hearsay from trial unless the declarant | | | | domestic disturbances should be listened to when |
| testifies at trial, or the declarant is unavailable to do | | | | they desire prosecution and also when they do not. |
| so and the accused had an opportunity to | | | | Admittedly, in some cases it may not be appropriate |
| cross-examine the declarant at the time of the | | | | to follow the victim’s request. Some examples |
| hearsay. The high court’s decision put an end | | | | are where there are repeat offenses or where there |
| to the long standing practice of calling police officers | | | | are serious injuries. In these cases the government |
| to the stand to testify on behalf of the recanting | | | | should prosecute the offender in spite of the |
| victim. Consequently, it is now necessary in most | | | | victim’s wishes, to promote safety and to |
| cases that the victim testifies in order for the | | | | send a strong message to the public that domestic |
| prosecution to obtain a conviction. | | | | violence is wrong. |
| The New Game | | | | Conversely, where it is a first offense with little or no |
| In spite of the Crawford decision, the District | | | | injuries, and the victim expressly states that he or |
| Attorney’s Office’s mad dog approach | | | | she does not wish prosecution, the system should |
| to these cases has not changed. Prosecutors are | | | | give the offender the opportunity to participate in a |
| now going to extreme lengths to compel | | | | domestic violence diversion program. This program |
| victim’s testimony. For example, when victims | | | | would require the offender to attend |
| refuse to appear in court, prosecutors sometimes | | | | batterer’s treatment classes, and upon |
| obtain body attachments or warrants for their | | | | successful completion of the program, the case |
| arrests, and then send their investigators after the | | | | would be dismissed. |