DV Prosecutors on Trial – Again

Prosecuting crimes is hard. Prosecuting crimes committed between dating or married people is really hard. Reading posts by non-professionals that blithely second guess those prosecutions, or the motives of the victims of the alleged crimes, is the hardest part of all.  The general public desperately needs to understand how our criminal justice system works; blog posts with catchy headlines that take pot shots don’t help. Aaargh.

On trial is whether prosecutors should compel victims of partner violence and/or rape to participate in prosecutions of their abusers against their will. The most recent case in question concerns the alleged kidnapping of a woman in Cowlitz County, Washington, by her ex-boyfriend, who assaulted her over two days then allegedly forced her to perform oral sex on another man. Not only that, the defendant has 10 prior felony convictions, and is on the state’s sex offender registry. I think we’d all agree, it would be great if this man could be tried and hopefully convicted.

The victim in the case missed some pre-trial meetings with prosecutors, and her desire to participate in the prosecution is up for debate (victim’s attorney says she wanted to participate; prosecutor says she missed meetings and did not respond to outreach – she is homeless),  so the prosecutor used a material witness warrant to make her come in.  The warrant included jailing her overnight.  Awful, I know. Whatever this victim’s position, it is common for victims of brutal assaults by their partners or former partners to refuse to participate in the prosecution, for a host of logical and legitimate reasons. Some of the reasons I have heard as a victim advocate and attorney is that the victim does not want to participate because she is scared of possible retribution; she doesn’t have cab/subway/bus fare; she didn’t get the prosecutors’  messages; she thinks she’ll be safer showing her ex-boyfriend that she’s  not participating; she wants to forget the whole thing ever happened; and even if she risk taking the stand, the perpetrator might not be convicted and/or might not do much time. Despite these real and understandable positions, the absence of the victim of the crime makes it much harder for prosecutors to hold the people who commit these atrocities accountable. As a terrific prosecutor colleague of mine puts it, this the Hard Part.  There are enumerable reasons NOT to force a victim to testify in a criminal prosecution BUT a prosecutor is sworn to uphold public safety, and not prosecuting means this  victim, and well as probable future victims, will be at risk. What to do?

Prosecutors’ ability to use legal tools to force victims of sexual and/or domestic assault to participate in trials is often rightly opposed by victim advocates. I often oppose it. It should never be an automatic tool; there are too many reasons it is wrong. Victims lose trust in the criminal justice system and the community they need to have supporting them; victims are re-victimized and re-traumatized; and important relationships among victims, citizens, prosecution and community are threatened.  Thing is, if on rare occasions when the defendant has committed a particularly egregious act and prosecutors are facing the dropping of a case for lack of other evidence, the offenders might go on to hurt that same victim, or another one.

Good, empathetic, “victim-centric” prosecutors (meaning those that think through issues of victim autonomy carefully) sometimes use these tools, and poor prosecutors (meaning those that just drop cases with difficult victims because they won’t get a ‘win’) often don’t. Therefore, their occasional use are not necessarily litmus tests for caring about victims. In @Jezebel, @Rebecca Rose is outraged at the Washington prosecutor’s approach. She writes, accurately, about how difficult it can be for a victim of such an assault to appear when and where the prosecutor asks her to. But then Rose simply throws up her hands at the apparent brutality and ignorance of the prosecutor. She writes “there’s a sensitivity chip missing in the brains of each and every person involved with this decision. Although I share her shock, given that even defense counsel says he has never seen a material witness warrant used for this kind of case indicates to me at least that the prosecutor thought long and hard about using this coercive technique, perhaps even considered its use with empathy.

@AmandaMarcotte of @Slate’s @XXFactor picks up here, framing the debate as a choice between victim’s wishes vs. prosecution of bad guys. She gets part of that right too, but it’s not as simple as she makes it out either. Different victims want different things; most want their abusers not to hurt them or anyone else again. What they can do to help make that happen varies.  Marcotte references research conducted by Amy Bonomi, to state that a victim’s lack of participation in a prosecution (note that I use the less judgment ‘participation in prosecution’ not ‘cooperation in prosecution’ because language matters) is not usually due to actual, explicit threats from their partners, but due to “their relationship with the abuser.” The research she cites actually draws a more complex conclusion. Bonami reviewed jail house calls from inmates to the partners they were accused of abusing and finds that the inmates use a complex strategy of psychological manipulation to convince their partners not to participate in their prosecution. I have listened to these kinds of calls; they’re compelling and completely coercive in the way the toggle between pleading, cajoling, threatening, and guilt-tripping. The defendant’s mom and attorney have spoken with the victim in this case – the prosecutor should consider reviewing the jailhouse calls, if there are any – they can be a gold mine. But even given the defendant’s skill in persuading his victim not to testify, is arresting the victim and forcing her participation the right solution?

So the Hard Part is how can a person sworn to defend public safety not do everything within her/his power to go after a guy like the defendant in this case? To find a just compromise between personal and public safety, sometimes prosecutors use subpoenas or material witness warrants with victims, not because they do not care about their well being, but because they do. Sometime the victim is adamant about having no role in the trial, but when there’s a warrant, she can honestly say to her partner that the prosecutor made her do it. There are also more compassionate ways to implement these warrants: send a social worker with the arresting officer to support the victim, and explain what is happening. Avoid the use of handcuffs. Prosecutors have told me that some victims have thanked them afterwards for going forward with the trial; others have always resented it, and never gave useful testimony. It’s hard to know which way a case will go, but it’s downright impossible for a blogger to know.  Bottom line: it’s not an easy judgment call.

I don’t know the people involved in this case, and I hope the prosecutor made the decision to use a material witness warrant with all appropriate concern and consideration. But it helps no one to attack one side or the other from the comfort of a keyboard. The @Marcotte position ends up criticizing the victim for being frustrating, and @Rose assumes that the prosecutor was too lazy to make a few phone calls. The reality is much more complicated, and by not discussing the complexity, we lose an opportunity to make it simpler. Victims of these crimes should get justice, but our current criminal courts make that very hard to achieve. That problem is something we should talk about and explain, so that it does not seem like crime victims are pitted against the public prosecutors sworn to protect them. They shouldn’t be, and they don’t need to be. 

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About amybarasch

Seasoned professional in the area of partner violence, criminal justice, and public policy. Public Service Professor at the Center for Human Services Research, SUNY Albany. Former Director of the NYS OPDV; NYC FJC; and creator of a variety of collaborative community-engaged programs.
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