Last updated February 2019
A variety of strategies have been developed with the goal of improving prosecutor response to domestic violence. The goals of any prosecution should be: (1) to enhance victim safety, (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.
One important strategy for reforming prosecutor response to domestic violence in the United States has been to create dedicated domestic violence units within the state prosecutor's office—that is, teams of specifically trained prosecutors whose primary responsibility is the prosecution of domestic violence cases. These units can consist of not only attorneys but other important personnel as well—including advocates who work with victims and investigators. 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 to protect a woman and her children. Civil orders for protection also allow the court to order child support and spousal maintenance. In some jurisdictions, the court can also order the offender to complete batterer’s programming and require court monitoring of the offender’s progress. Civil orders for protection offer immediate relief – orders are often issued the same day as the request.
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. This level of specialization is necessary because of the unique dynamics in intimate partner violence. Regular training of the specialized team members insures implementation of the best practices.
Vertical Prosecution
Vertical prosecution is a practice in which one prosecutor handles a case from the point at which the charging decision is made through final disposition; a strategy which works well within and dedicated domestic violence units.[1] A victim who works with the same prosecutor throughout their case, particularly when that prosecutor is specially trained to handle domestic violence cases, is less likely to need to provide repeat—and potentially re-traumatizing—statements. In addition, the victim can gain familiarity with the prosecutor, increasing her level of comfort and willingness to disclose information.[2] Most important, having a trained team handling the cases from charging to final disposition is more likely to enhance victim satisfaction with the justice system. Even when a victim does not or cannot cooperate with prosecution, her level of satisfaction with the criminal justice system makes it more likely that she will seek assistance for future acts of violence.
Role of the Victim in Prosecutions
Many prosecutors' offices have policies that provide for prosecution of cases without victim cooperation if there is sufficient independent evidence to do so. These policies are sometimes referred to as “evidence-based” prosecutions, due the prosecutor’s reliance on evidence other than the victim’s testimony—such as emergency phone calls, photographs, and forensic evidence. The goal of this strategy is to take the prosecution burden off the victim and place it in the hands of the state where it belongs.
The initial gathering of evidence is critical in evidence-based prosecutions and thus it is necessary for prosecutors to work with police in developing and implementing effective strategies to collect relevant evidence beginning with the first report of the offense. The UNODC recommends that legislation relating to the duties and obligations of prosecutors should “establish that responsibility for prosecuting violence against women lies with prosecution authorities and not with complainants/survivors of violence, regardless of the level or type of injury... [and] require that any prosecutor who discontinues a case of violence against women explain to the complainant/survivor why the case was dropped.”[3]
This is particularly necessary in light of the high number of victims who recant or otherwise do not cooperate. In the United States, some studies have shown that prosecutors encounter victim recantation or non-cooperation in approximately 80% of cases.[4] Different systems have varying strategies for handling recantation, ranging from treating the victim as a hostile witness to calling the victim to provide foundational evidence to simply proceeding without the victim’s in-court testimony. UNODC supported the latter, stating “a[n evidence-based] prosecution indicates that the crime is taken seriously by the justice system and can also promote the safety of the complainant/survivor. In order to strengthen the agency of the complainant/survivor, it is critical to ensure that she remains informed throughout all stages of the proceedings in absent-complainant/survivor prosecutions.”[5]
However, advocates and researchers do not all agree that evidence-based prosecutions are the most effective way of ensuring that prosecutors can both protect victims and deterring future violence. In a report from 2003, the Special Rapporteur on Violence against Women explained: “Some have argued that ‘mandatoriness’ goes against the concept of women's human rights and that the victim should retain control of the proceedings, while others have argued that mandatory arrest and prosecution will prevent abuse of discretion by the police and serve as a strong deterrent to abusers.”[6] One domestic violence expert elaborated on this view, cautioning against placing an unrealistic emphasis on the state’s ability to protect victims:
The assumption that the criminal justice system offers the best chance of increasing a woman's safety overstates the efficacy of the system in stopping the violence while simultaneously understating the importance of the availability of women's other resources…. A woman who opposes prosecution is taking a calculated risk, as is the woman who actively pursues prosecution. Neither she, nor the judge or the prosecutor, can know with certainty which action will result in less violence. The problem is not that the batterer's coercion is not real, but rather that it is not always clear that the criminal justice system offers a better alternative.[7]
The author argues that mandatory polices can actually place victims under greater state control, with marginalized women placed at greater risk.[8] However, there is also a very real risk in transferring control over prosecution from the state to the victim in that it may actually be the abuser, through threats and intimidation, who is in control. Moreover, there are provable cases of such serious physical harm that the failure to go forward jeopardizes public safety to an extent that dismissal cannot be justified, regardless of victims’ wishes.
Often, the prosecutorial strategies that give victims the greatest degree of agency regarding whether to pursue a criminal prosecution are referred to as “victim-centered” prosecutions. However, the terms must be used carefully and in the context of broader prosecution policies. As one U.S.-based advocate noted:
Applying labels like “evidence-based” and “victim-centered” might be necessary and appropriate to describe and compare jurisdictions. However, we should view these labels as summary descriptions of particular features of a policy or practice. Although we might describe a particular policy as “evidence-based” or “victim-centered,” these terms might not describe accurately the broader approach taken by the jurisdiction. For example, jurisdictions that use “evidence-based” prosecution also might implement a broad array of policies and practices that are “victim centered.”[9]
Similarly, a researcher from the U.S. acknowledged that “[s]ome jurisdictions have been successful at merging the evidence-based and victim-empowerment model practices, whereby the cases are given priority and victims are informed and consulted, but the ultimate decision to move forward with a prosecution is the onus of the prosecutor. The approach is victim centered while deferring to the expertise of the prosecutor.”[10] Notably, the advocate and researcher above were both commenting on a study that revealed no difference in “court empowerment” between one evidence-based and one “victim-centered” prosecutorial approach.[11]
Although the state must assume responsibility for its response to domestic violence, it cannot and should not assume that it knows what is best for the victim in any particular context. In order to avoid making such an assumption, prosecutors should work within a broader multi-sectoral approach.
Prosecutors' offices also seek to improve their response by developing ways to provide victims and witnesses with additional information and support. Some offices coordinate with battered women's groups to provide these services, while others created victim/witness advocate positions within their offices to assist victims throughout the criminal proceeding. It should be noted, however, that advocate positions within prosecutor’s office may not be confidential. Victims should have access to confidential advocates form the first report of abuse. Ensuring that the victim is provided with support and assistance, that she understands the process and her role in it, and that she is given an opportunity to provide input into the case can help make the process easier for her to participate.[12]
A final area of reform is in ensuring that victims can work with culturally competent prosecutors. Often, domestic violence intervention and prosecution strategies have been built upon Western notions of family life. Prosecutors should be educated about the cultural norms and ideas relating to the specific victim with whom they are working and her culture’s attitudes about domestic violence: “A culturally competent attorney utilizes tools and training to interact with his or her client in a way that is non-judgmental, respectful, and that avoids stereotypes. Cultural competence allows deeper understanding of the client and the client’s perspective, which goes to credibility.”[13]
Prosecutors should be aware of the potentially different needs of victims who are:
[1] Women Prosecutors Section, National District Attorneys Association, The National Domestic Violence Prosecution Best Practices Guide 13 (2017) (hereinafter NDVP Best Practices Guide).
[2] Prosecution, Center for Sex Offender Management, http://www.csom.org/pubs/cap/1/1_1.htm (last accessed Nov. 16, 2018).
[3] UNODC, Division for the Advancement of Women, Good Practices in Legislation on Violence against Women: Report of the Expert Group Meeting 40–41 (2008) (hereinafter Good Practices in Legislation on VAW).
[4] WPS, NDVP Best Practices Guide, supra note 1, at 7.
[5] UNODC, Good Practices in Legislation on VAW, supra note 3, at 48.
[6] Radhika Coomaraswamy (Special Rapporteur on Violence against Women, Its Causes and Consequences), Integration of the Human Rights of Women and the Gender Perspective, ¶ 29, U.N. Doc. E/CN.4/2003/75 (Jan. 6, 2003).
[7] Donna K. Coker, Crime Control and Feminist Law Reform in Domestic Violence Law: A Critical Review, 4 Buff. Crim. L. Rev. 801, 286 (2001).
[8] Id. at 830–31.
[9] Richard R. Peterson, Victim Engagement in the Prosecution of Domestic violence Cases, 12 Am. Soc. Criminology 473, 474 (2013).
[10] Krista R. Flannigan, The Importance of Prosecution Policies in Domestic Violence Cases, 12 Am. Soc. Criminology 481, 487 (2013).
[11] Mary A. Finn, Evidence-Based and Victim-Centered Prosecutorial Policies: Examination of Deterrent and Therapeutic Jurisprudence Effect on Domestic Violence, 12 Am. Soc. Criminology 443, 465 (2013).
[12] WPS, NDVP Best Practices Guide, supra note 1, at 17.
[13] Julie Saffren, Professional Responsibility in Civil Domestic Violence Matters, 24 Hastings Women’s L. J. 3, 17 (2013).