Thursday, June 12, 2014

Criminal Prosecutions and Battered Women as Witnesses: Part II

Following up on a prior post by Leigh Goodmark, yesterday I wrote of the difficulties battered women face in incorporating their narratives and goals into prosecution plans.  Often prosecutors expect survivor-witnesses to cooperate by proceeding with criminal prosecution based upon the crimes against them and use coercive measures to secure their cooperation when they deem it necessary. 

For reasons discussed yesterday, abused women and prosecutors are often at odds over the merits of criminal prosecution.  Much of the tension results from miscommunication that leaves both sides frustrated.  One suggestion for relief is incorporating education for prosecutors on the dynamics of domestic violence.  Survivors often take action (or not) that is counterintuitive to those who have not experienced violence.  Yet when framed in the context of family needs and safety, survivor decision making is sensible.  Education on the dynamics of intimate partner abuse can help eliminate judgment of survivor goals and rid us of any need to control the survivor's choices.  As lawyers, often we believe that the law is the ultimate tool for keeping survivors safe and in ending domestic violence.  With decades of experience now in domestic violence law enforcement, we know that the rate of recidivism is high, and that the legal intervention, both civil and criminal, may assist with a survivor's immediate safety but has little long-term impact on eliminating the root causes of domestic violence.  Why this is will be an ongoing debate and one worthy of research.

Some state's attorneys have had successful survivor relationships while pursuing criminal prosecutions.  When Judge Jerry Bowles of Louisville, KY prosecuted domestic violence cases, he noticed his colleagues' distress when half of the their victim-witnesses in domestic violence cases failed to appear at trial of their abusers.  Rather than becoming angry with the survivor, Judge Bowles set out to discover why domestic abuse cases had such a comparatively low rate of witness appearence.  He contacted local domestic violence service providers to learn what was different about these cases.  He learned about the dynamics of abuse in the intimate partner context.  He learned that a battered women needs autonomy in decision making or she will feel as controlled by the state as she was by her abuser.  He learned that no two survivors are the same and that decision making is based on safety choices as well as survivor goals for herself and her children, and yes, for the abuser.  He learned that prosecutors may assume that abused women seek punishment for the abuser.  And certainly part of the state's charge in protecting citizens includes prosecution.  But, he learned, that battered women want nothing more than for the violence to stop and for the abuser to receive help.  Prosecutor Bowles reframed his view of domestic violence prosecution, eliminating the victim blaming response to the failure or reluctance of abused women to testify against their abusers.  Judge Bowles organzied Kentucky's first domestic violence prosecution unit, which enjoyed a renewed relationship with survivors and led to increased cooperation between survivors and prosecutors. 

About twenty years later, Los Angeles City's Attorney Richard Kraft found himself prosecuting domestic violence cases.  He too incorporated respect for victim decision-making into prosecution policy.  He accomplished a merger of respecting survivor choice not to participate in prosecutions with the state's obligation to prosecute by instituting a no-drop prosecution policy but one that did not rely upon victim-witnesses' testimony.  Prosecutors were instructed to proceed with every prosecution but to respect the survivor's choices around participation.  Attorney Kraft believed that there was value in abusers knowing that they would be prosecuted for their behavior and that prosecution did not rely upon victim cooperation.  In order to accomplish this goal, prosecutors had to let go of worries about win or loss.  When prosecutors are no longer working within the win-loss paradigm, prosecutors are relieved of enormous bueracratic pressure.  They are freed to implement policy that defines success through qualitative measurements.

Judges, too, can impede successful prosecution of abusers.  Many simply dismiss cases if the victim-witness fails to appear.  Often prosecutors and police have sufficient independent evidence to prosecute domestic violence offenders.  Judges who focus on punishing victims for failing to appear often ignore prosecutor requests to proceed with trial despite the failure of one witness to cooperate.  Frequently both police and prosecutors report a judge's comment that "If she doesn't care, why should I?"  She may in fact care very much.  She may desire successful prosecution.  She may simply have other pressures, including witness intimidation, for not participating.  It is worth exploring the basis for this sort of judicial dismissal and determine whether or not gender bias plays a role. 

The above examples are not meant to limit how domestic violence prosecutors can meet their interpretation of prosecutorial obligations while honoring victim autonomy and eliminating victim blaming.  The possibilties are endless and the need for creativity is .  The challenge will be for states' attorneys to accept the education challenge and to incorporate new techniques and attitudes into how they work with survivors.  Creative shifts in case prosecution techniques will follow. 

 

 

https://lawprofessors.typepad.com/human_rights/2014/06/criminal-prosecutions-and-battered-women-as-witnesses-part-ii.html

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