Mandatory domestic violence prosecution may traumatize victims

Mandatory arrest and prosecution policies for domestic violence cases rob women of decision-making power.

On July 30, a Seminole County, Fla., judge sentenced a victim of domestic violence to three days in jail after she failed to appear in court to testify against the father of her 1-year-old son, who eventually pleaded "no contest" to battery. In justifying the decision to ask that she be held in contempt of court, State's Attorney Phil Archer argued that the woman's unwillingness to testify was "a decision to thwart the court process by refusing to cooperate."

The woman tried to explain her decision to the judge, apologizing and saying she had been "dealing with depression and a lot of personal anxiety since this happened." Judge Jerri Collins responded, "You think you're going to have anxiety now? You haven't even seen anxiety." If you've seen the video, you know that the woman begged Judge Collins not to send her to jail and away from her child, even as the deputies were handcuffing her. Local and national domestic violence organizations condemned the judge's actions.

Judge Collins' behavior was appalling, abusive, wrong — and unsurprising. This kind of event is the predictable consequence of implementing mandatory police and prosecution policies in domestic violence cases.

Mandatory policies were a response to the criminal justice system's failure to take domestic violence seriously. Prior to the late 1980s, rates of arrest and prosecution of domestic violence cases were appallingly low. Police argued that women were unwilling to press charges against their partners, making it impossible for them to make arrests. Prosecutors frequently declined to bring or dropped domestic violence cases, arguing that they could not successfully prosecute without the participation of victims.

Mandatory arrest and no drop prosecution were the two major policy initiatives used to implement this philosophy. Mandatory arrest laws required that police make arrests in domestic violence cases whenever they had probable cause to do so. Strict no-drop prosecution policies directed prosecutors to use whatever means necessary to prove their cases, including compelling reluctant victims to testify through the use of subpoenas and asking for them to be arrested when they failed to appear — the policy apparently adopted by prosecutors in Seminole County. This use of the subpoena power is a problem closer to home as well. Prosecutors in Baltimore City have asked district court judges to issue bench warrants for victims of domestic violence who fail to appear at trial, and judges have issued those warrants. What happened in Seminole County could certainly happen in the courthouse on North Avenue.

These policies allow some women to disclaim responsibility for criminal justice interventions that they very much want and may help to protect the very few women who are incapable of making decisions about participation for themselves. But they also substitute the judgment of state actors for the wishes of women who are not interested in working with the criminal justice system and are able and willing to say so.

These policies are based on a belief that women who have been abused cannot decide how best to address the violence in their lives. These women are depicted as being so completely under their partners' control that they are incapable of making rational choices. The criminal justice system seems to believe that in overriding a woman's expressed wishes, it is saving her life.

But is the Seminole County woman's choice so irrational? We don't know why she chose not to participate in prosecution, but there are numerous reasons to make that choice. She might have feared that her partner would be mistreated in the criminal justice system, a reasonable fear given the almost daily reports of abuses committed by police and corrections officials. She might have needed her partner's economic support. She might have wanted him to co-parent their child. She might have been dependent upon him for housing; in fact, during the hearing, she told the judge that she was currently homeless, living with her parents. Clearly, given the explanation quoted earlier, she was experiencing tremendous anxiety about testifying. That anxiety is warranted; as psychologist Judith Herman has noted, there is no better vehicle for re-traumatizing victims of violence than participating in the adversarial justice system.

Mandatory arrest and no-drop prosecution are at the top of a slippery slope. Further down that slope are prosecutors who seek to have victims of domestic violence jailed until they testify, judges who threaten women with perjury charges if they recant their statements, and prosecutors and judges who collaborate to imprison victims of domestic violence for opting out of criminal prosecution. The end of that slope is the re-victimization of women subjected to abuse. All of these outcomes rest on the paternalistic notion that criminal justice intervention is the only rational and acceptable response to domestic violence. If a woman declines to engage with that system, her judgment is deemed suspect and she forfeits her right to make choices for herself.

By advocating for mandatory policies that rob women of the power to make decisions for themselves, the anti-domestic violence movement has put the tools to traumatize women in judges' hands. Judge Collins is simply reaping what the battered women's movement has sown.

Leigh Goodmark is a professor of law at the University of Maryland Francis King Carey School of Law and the author of "A Troubled Marriage: Domestic Violence and the Legal System," (NYU Press, 2012). Her email is lgoodmark@law.umaryland.edu.

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