Abused Women and State Criminal Prosecutions: Continuing The Conversation

On June 5th, Leigh Goodmark posted about a county in Maine where two women who are victims of domestic violence were arrested. One woman was arrested because she failed to appear as a witness at the criminal trial against the man who abused her.  The second arrest happened because prosecutors believed that the abused woman would not appear atupcoming the trial of her abuser. 

There are many disturbing aspects to these arrests.  The most disturbing for me is that somehow willingness to engage the criminal justice system responses to domestic violence has become the standard that many judges use in determining if a woman is worthy of assistance.  For example, judges hearing civil protection order cases often ask if the petitioner called the police.  In fact, most abuse survivors do not call the police. Often, failure to call is driven by factors other than safety concerns.  Those survivors who do call the police consistently call to stop the violence, but may not want an arrest to result. 

The reality is that the criminal justice system response is often driven by the unrealistic expectations of prosecutors who insist that victims (with whom prosecutors often have had little direct contact prior to trial day) respond with what they deem appropriate cooperation. Prosecutors and others who are part of the state response understandably believe in the efficacy of their efforts.  And no one disputes the state’s obligation to keep citizens safe.  Of course, one cannot discount the pressures that prosecutors are under to improve their “win-loss” ratios.  Also, in the early days of battered women’s advocacy, both police and prosecutors failed to arrest and charge men who battered.  Their effective treatment of domestic violence as a crime was not addressed adequately until states started passing domestic violence assault and battery legislation.   It is worth asking whether these laws were really necessary, and what impact they have had. There were sufficient existing laws  in every state where assault and battery charges could be brought, but they were not enforced in domestic violence cases.   This differentiation of domestic violence as a separate crime was, in many ways, the beginning of the state’s conception of domestic violence survivors as witnesses rather than independent actors with their own goals. 

This is part of the danger when we look to criminal justice solutions as absolute without consideration of the ways in which domestic violence is different from other crimes.  When a thorough understanding of survivor and abuser dynamics is missing from remedies, we lose our ability to communicate effectively with survivors involved in the criminal justice system.

I wonder what role gender bias plays into aggressive anti-survivor responses in the criminal justice system.  I have not heard of material witness warrants or failure to testify actions in other misdemeanor cases.  Usually we hear of these remedies in capital murder cases or similar felonies.  Yet when the witness is a female victim of domestic abuse, the masculine criminal justice system seems to take offense when she refuses to participate.  Reluctant witnesses in drug or gang cases have more prosecutorial (and public) empathy, even though their testimony may be desperately needed in order for successful prosecution.  Those witnesses are often offered not punishment, but protective custody.  Prosecutors in gang cases address the witnesses’ fear, rather than holding them in contempt.  The witness’ reluctance to testify in murder or gang prosecutions is easily understood because we can place ourselves in the witness’ position.  But on some level sometimes we still blame survivors for their situations.  Subtle victim blaming plays out in many ways, including prosecutorial anger toward non-cooperating survivors.

A survivor’s relationship with the batterer is much more complicated than a crime victim’s relationship with a stranger.  Fear of retaliation is not the only reason a survivor may not want to testify, as Goodmark pointed out.  The “uncooperative” domestic violence witness may be responding negatively to a criminal justice system that is directive and fails to acknowledge her reasons for not wanting to participate in the prosecution.  Overworked prosecutors would benefit from education on this issue.  The information on survivors responses would simultaneously relieve some of their stress in prosecuting domestic violence cases while also bringing a more empathetic understanding of those responses.

Part II of this post will address additional alternatives available to prosecutors.