Prosecutorial Practices, Intimate Partner Violence

The history of prosecuting intimate partner violence is marked by a shift from private to public prosecution and by an expansion of the domain of the public prosecutor to a point where today prosecutorial practices shape the full course of criminal justice. Those practices are grounded in policies that are subject to broad prosecutorial discretion. Key alternatives in policy and practice include whether or not to file charges, whether to honor victim requests regarding continued prosecution, whether to pursue prosecution irrespective of victim participation, whether to offer diversion from prosecution, and whether to seek rehabilitative treatment through sentencing.

Criminal cases are brought to the attention of prosecutors either by the police or by a victim-complainant. In cases of misdemeanor domestic violence for which the police make an on-scene, warrantless arrest, the prosecutor will receive a police report and a probable cause affidavit justifying the arrest. In the event that a victim brings charges to the prosecutor, as in cases where the police do not make an arrest or perhaps were never called to the scene, the victim will be asked to document events constituting a crime in a probable cause affidavit acceptable to the prosecutor. Whether the case was initiated by the police or by a victim, the prosecutor affirms that it will be prosecuted and what charges are appropriate. If the case is to be prosecuted, the affidavit is forwarded to a judge who verifies that there is probable cause to justify arrest and prosecution. Alternatively, the prosecutor may, at this point, decline to prosecute a weak or unwinnable case or a case that might eventually be dismissed because of the unwillingness of a victim-witness to participate in the process.

Once a case is initiated, the prosecutor has the discretion to decide how the case should proceed based on policy, further investigation, and input from the victim. Making it known that the case will go to trial, the prosecutor opens the opportunity for a plea agreement. At the same time, the prosecutor may have in mind a preferred outcome for the defendant upon conviction, such as jail, fines, supervised probation with some form of treatment, or victim restitution. When a defendant faces multiple charges, the prosecutor may consider dismissing select charges to bargain for a guilty plea on at least one. Which charge is pursued will take into account available sentencing options. For example, the prosecutor may want to preserve a domestic battery charge in order to seek agreement to batterer counseling. Victims, judges, and prosecutors alike tend to favor sentencing that carries some form of rehabilitative treatment as a condition of [Page 567]probation. Prosecutors may also want a guilty plea to a crime that carries charge or sentencing enhancement in the event the defendant reoffends. For instance, in some jurisdictions, once a defendant has been convicted on a misdemeanor battery charge, he or she stands to be charged with a felony should he or she again commit an offense that would otherwise be a misdemeanor.

It is not unusual for a victim to decide not to participate in the process after it has been set in motion. The victim may feel confused, fearful, frustrated, or conflicted over the abuser being imprisoned. The victim may be pressured to drop charges by the defendant, the defendant's attorney may negotiate an informal agreement with the victim, or the victim may simply feel secure enough that the continuation of a prolonged process will be too disruptive to his or her efforts to get on with life. If the victim asks that charges be dropped, the prosecutor has the discretion to decide whether to honor the request. The prosecutor may drop charges; but if constrained by a no-drop prosecution policy, he or she may try to persuade the victim not to drop by posing other means of keeping the abuser under supervision. One option available in some jurisdictions is to offer the defendant the opportunity to enter a pretrial diversion program, usually requiring the defendant to enroll in a batterer treatment program. Upon successful completion of the program, the prosecutor will dismiss charges. A victim may find this option desirable as it fulfills an interest in getting help for the batterer and it will not result in the batterer being incarcerated or even having a conviction on his or her record. Diversion puts a defendant under supervision of the prosecutor's office during the period of his or her counseling. The extra work entailed for monitoring and assessing success or failure in the program is a burden that some prosecutors would rather avoid. Indeed, even if a defendant fails treatment, as long as he or she has not reoffended, prosecutors will consider carefully the consequences of further extending the inconvenience to all parties before prosecuting the case; many will simply dismiss charges. Dismissing the charges eliminates the chance of enhanced charging on a new act of domestic violence. To avoid this outcome, the prosecutor might, instead, offer diversion conditional on a guilty plea that will result in a conviction if the defendant fails treatment.

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