The Need for Victim Participation in Domestic Violence Cases

Understanding the Dynamics of Domestic Violence Prosecutions

Domestic violence crimes are victim-based offenses where the defendant is accused of causing harm to another person with whom he resides, is either married to or related to by blood, has a child in common, or is involved in a romantic relationship. When police respond to a domestic violence call, the alleged aggressor is most often arrested and charged with a domestic violence crime.

In many cases the complaining party or victim does not support or request the defendant’s arrest or that he or she be criminally charged. Under these circumstances, these victims often support the dismissal of the charge(s). This poses the question of whether or not victim participation is needed for a successful domestic violence prosecution.

The Process of Filing Charges in Domestic Violence Cases

The filing of criminal charges is done by the police department or prosecuting entity for a city, town, or state. A complaining party or victim to a crime does not file charges. He or she is limited to reporting the crime to authorities, who have prosecutorial discretion about whether charges should be filed. In Rhode Island, for example, misdemeanor domestic violence offenses are prosecuted by the municipalities (cities or towns) that investigated them. Rhode Island felony domestic violence offenses are prosecuted by the Attorney General’s Office.

Conversely, all domestic charges in Massachusetts, both misdemeanors and felonies, are prosecuted by the District Attorney’s Office for the county where the alleged crime was committed. Because the filing of charges rests within the discretion of the prosecution, it is also the prosecution that decides whether or not charges should be filed. It is a misnomer to state or believe that a crime victim has the ability to drop criminal charges. While a victim is free to communicate his or her desires about how the case should be handled, the prosecution has the final authority on whether to prosecute or dismiss a criminal case.

The Crucial Role of Victim Participation in Prosecution

In most cases, victim participation is needed for a successful domestic violence prosecution. Because both the victim made the complaint of domestic violence, and the defendant has a constitutional right to confront his accuser, the presence of the victim is most often required in court at the time of trial. Without the defendant’s testimony, in most cases, the prosecution cannot succeed with proving its case. In some instances, victims fail to appear in court, even when subpoenaed.

When the prosecution cannot proceed due to a victim’s absence, the case may be dismissed. However, victims who fail to abide by the terms of a properly issued subpoena may face their own legal consequences. Subpoenas have the force and effect of court orders. Failure to obey they may result in arrest warrants and criminal charges.

Communication and Legal Strategies for Victims

If a complaining party or named victim to a crime does not wish to proceed with prosecution, this desire sentiment should be communicated to the prosecution. An experienced criminal defense lawyer should attempt to meet with the complainant to document their support for a dismissal. This can be done via affidavit, letter, recording, deposition, and more. The complainant can also communicate their desires directly to the prosecutor handling the case, or a victim advocate employed by court to assist crime victims with navigating the criminal justice system.

Addressing Potential Criminal Exposure of Victims

In some instances, a complaining party or named victim to a crime may have their own criminal exposure. This could result from providing untruthful or incomplete information to police at the time of the complaint. Criminal exposure may also arise from the complainant having been a participant in a crime against the defendant or otherwise.

Under these circumstances, the victim may be entitled to use their 5th Amendment privilege against self-incrimination to avoid being called to testify in a domestic violence prosecution. If this occurs, the prosecution must either grant the person immunity, to overcome the privilege and compel trial testimony, or the case may be dismissed. Complainants who believe they may have criminal exposure are encouraged to consult with a criminal defense lawyer for more precise legal advice on this topic.

Prosecuting Without the Victim: Challenges and Possibilities

In very limited circumstances, a criminal prosecution may proceed absent the participation of a domestic violence victim. However, for this to occur, the prosecution must have other forms of evidence such as video, 911 call recordings that a court deems to be admissible at trial, photos of injuries, and/or third-party eyewitness testimony. It is very difficult to successfully pursue a domestic violence criminal prosecution without victim participation, but it can and has historically been done.

Seeking Legal Representation: A Call to Action for the Accused

If you have been accused of a domestic violence offense, contact Domestic Violence Criminal Defense Lawyer, John L. Calcagni III, for a free consultation at (401) 351-5100.