When I was a prosecutor nothing frustrated me more than Assault/Family Violence cases. The only thing worse than a “victimless” crime, is a crime in which the victim actually works against you.
Early in my ADA career I approached AFV cases with a sense of moral certainty. I had a desire to put away “wife beaters.” I had a crime with a victim. I felt good about prosecuting AFV in a way I couldn’t about DWI or POM.
I believed that I was helping battered women and stopping the violence from getting worse.
The problem with AFV is the “victim”. They lie, have substance abuse issues, and love the defendant.
A common factor in AFV cases is alcohol/drugs. A fair percentage of AFV cases involve two intoxicated parties. Put a drunk man and woman in a fight, and who wins? Usually the man, so he goes to jail.
In the heat of a drunk argument some “victims” actually call the police and allege family violence just to have their spouse/partner arrested. Even when threatened with a charge of Filing a False Police Report these “victims” still insist they lied. Basically they confess to a new crime to help the defendant. All this, because victims love the defendant. As a prosecutor you can’t, or shouldn’t, try cases with such problems.
AFV victims will do anything to get you (the ADA) to “drop charges.” Many victims sign an “Affidavit of Non Prosecution.” AONPs are not binding and have no legal effect on a case. An AONP just memorializes the victim’s desire to have the case dismissed. In short, AONPs are good CYA material for ADAs.
So what to do if you are the prosecutor? You have a case in which the victim wants you to quit what you are doing and a stack of other cases to work on.
I started out with the idea I could work around these victims. I knew what was best for them and I needed to convict the defendant against the victim’s wishes.
These noble ideas were reinforced at baby prosecutor school. At prosecutor school we were taught to never drop an AFV case, they showed us dead victim photos to reinforce the idea. We learned that if a woman if ever arrested for A/FV we should probaly investigate the man too.
I dutifully set my A/FV cases for trial and tried to supboena the victim to show up.
Victims are smart, they will skip the trial and move so they can’t be subpoenad. I learned this the hard way. It made me cynical and pragmatic. Prosecutor school be damned. So I had to find a better way to deal with AFV cases.
Something feels wrong about just dismissing AFV cases. It seems to send the wrong message. And if the defendant comes back and kills the victim the DA’s office is going to make headlines for the wrong reason.
A common solution among DA’s is requiring the victim, defendant, or both to attend counseling before dismissed a case.
In Bowie County I required the Defendant to attend a class on how to handle his anger/alcohol issues or plead the case out with just a fine and court costs (“time served”, defedants love that). That way, the defendant had a record and could be enhanced in the future.
Either way- prosecuting a crime with hostile victims was never easy, and very frustrating. It showed me that the state can have the best intentions, but people will make their own decisions and can’t always be helped.
Labels: Family Violence, Prosecution