Erin L. Han
Abstract: In recent decades, arrest and prosecution have been applied to perpetrators of domestic violence with increasing severity, repre-senting an important step in recognizing domestic violence as a crime. Some jurisdictions have taken the war against domestic violence a step further, by employing aggressive “mandatory arrest” and “no-drop prosecution” policies. These policies have been met with mixed reactions from advocates of battered women and law enforcement agencies, who debate the effectiveness of the policies, both in curbing crime and in treating the needs of victims. This Note analyzes whether and to what extent specific aggressive arrest and prosecution policies are compatible with a victim-centered empowerment approach to domestic violence advocacy. It concludes by recommending various compromise approaches, which treat domestic violence as the crime that it is while at the same time empowering victims to become survivors.
Introduction
The modern campaign against domestic violence as we know it has been waged since 1962.1 The year is 2002 and the statistics are still appalling. An estimated two million American women2 are vic[*PG160]tims/survivors3 of domestic violence at the hands of their male partners.4 More women seek medical attention for harm suffered at the hands of an intimate partner than for injuries caused by auto accidents, rapes, and muggings combined.5 Women are more likely to be beaten, raped, or killed by a current or former male partner than by anyone else.6 Between 22 and 35% of female emergency room patients are there because of injuries inflicted on them by their partners.7 One out of four pregnant women has a history of being abused.8 One-third to one-half of female homicide victims were murdered by a male partner.9
Clearly, domestic violence is a deeply entrenched problem in American society.10 As activists step up the campaign for reform on all fronts, it has become accepted within the feminist community that partnership with state law enforcement agencies is an essential component of efforts to eradicate domestic violence.11 Traditionally, acts of violence in the home were largely ignored by law enforcement, who viewed domestic violence as a “private” matter, inappropriate for [*PG161]state intervention.12 If domestic violence is to be eradicated, then it must be taken as seriously as other criminal offenses by law enforcement agencies, which must commit to ending this practice and bringing perpetrators to justice.13 Without the cooperation and activism of police officers, prosecutors, and judges, the state sends a message to would-be perpetrators and victims that battering is condoned by the state and that it will be permitted without repercussion.14
That there should be some level of partnership between domestic violence activists and law enforcement is as far as the concensus goes, however.15 In recent years, a heated debate has ensued within both the feminist and law enforcement communities as to the most appropriate way for law enforcement to assist in the struggle to end domestic violence.16 To the frustration of police officers and state prosecutors, domestic violence victims are often “uncooperative” in the state’s efforts to prosecute and convict their batterers.17 Many states have responded to both the traditional failure of law enforcement to react to violence in the home and the frequent lack of cooperation by victims by adopting “mandatory arrest” and/or “no-drop prosecution” policies.18 Mandatory arrest policies completely remove police discretion and require arrest in all cases where officers have probable cause to believe that an act of domestic violence has occurred.19 No-drop policies require prosecution of a domestic violence perpetrator, regardless of the victim’s wishes, and often force the victim to participate in the [*PG162]prosecutorial process.20 While too little state intervention can be extremely detrimental to the safety of victims, too much intervention in the form of mandatory arrest and no-drop prosecution may intrude upon the autonomy of victims in a way that calls the appropriateness of these policies into question.21
This Note analyzes whether mandatory arrest and no-drop policies are compatible with the best interests of domestic violence victims.22 Part I explains the empowerment model of advocacy and its importance to feminists in the movement to end domestic violence.23 The remainder of the Note operates under the assumption that the empowerment model is the best way to serve most victims of domestic violence.24 Part II examines the public roles and duties of police officers and prosecutors to determine whether and to what extent a concern for the best interests of victims should factor into those roles. After clarifying the role of empowerment in the missions of law enforcement agencies and actors, Part III analyzes the compatibility of both mandatory arrest and no-drop policies to a victim-empowerment approach to domestic violence.25 Part IV then suggests alternatives to both policies that will better balance criminal accountability and victims’ interests.
Most academic scholarship has considered mandatory arrest and no-drop policies together as either jointly empowering or disempowering of domestic violence victims. While the two policies are complementary to one another and operate as two stages in the same process, it does not follow that one cannot exist without the other.26 This [*PG163]leaves open the possibility that one policy is compatible with victim empowerment, while the other is not. This Note addresses mandatory arrest and no-drop prosecution policies individually, analyzing each on its own terms, while remaining mindful of their intersections throughout.
I. The Victim-Empowerment Model of Domestic
Violence Advocacy
Approaches to victims of domestic violence can generally be divided into two categories: directive and empowering.27 The directive model is most closely aligned with the traditional approach to lawyering employed by most attorneys.28 Under that model, the advocate tells her client what she ought to do given the lawyer’s assessment of the client’s situation.29 The empowerment model is quite contrary to the traditional style of lawyering employed by the directive model.30 Under the empowerment model, the client is the decision-maker.31 The advocate simply provides information in a setting that is safe and conducive for contemplation, and ultimately allows the client to decide what to do with her situation.32
The empowerment model, while perhaps not appropriate for all forms of lawyering, is particularly well suited to working with victims of domestic violence.33 This is best understood by looking at the dy[*PG164]namic of abuse present in a battering relationship.34 Domestic violence is not simply about men hitting women and injuring them physically.35 A batterer is generally not trying to hurt the woman he batters only to cause injury,36 but to dominate her so as to gain power and control over every facet of her life.37 The violence is used by a batterer as a tool to instill fear in his victim.38 This fear, kept fresh by renewed incidents of violence, is what allows a batterer to exercise power and control over his victim, often over a long period of time.39
Women and men stay in abusive relationships for a myriad of complex and often logical reasons,40 including, but not limited to, the following: the financial dependency of the victim on her batterer;41 fear (often based on threats) that the batterer will get custody of the children if she tries to leave him;42 fear that he will have her deported if she is an undocumented immigrant;43 cultural or religious mores [*PG165]that would condemn her for leaving the relationship;44 fear that leaving would heighten her physical danger;45 fear for the welfare of family members;46 lack of networks, friends, or other sources of emotional support;47 a belief that she is incompetent and needs her batterer to survive in the world;48 the belief that she “deserves” to be abused because of her own imperfections or behavior;49 and finally, love for her abuser.50
[*PG166] Given the complexity of the reasons why a battered woman might stay with her abuser, disentangling a victim from her situation is not as simple as picking her up and carrying her to safety.51 Even the most dedicated advocate is limited in the amount of time and energy that can be devoted to each battered women seeking assistance.52 Nor can absolute safety be guaranteed by state protective mechanisms,53 given that incarceration for crimes of domestic violence tends to be for a relatively short period of time.54
Not only are state solutions limited, but these solutions might actually do damage to the recovery of a battered woman by replicating the control wielded by the abuser.55 When a state or advocate forces a woman to leave or to take other action, rather than empowering her to make these decisions on her own, the state has simply succeeded in transferring power from one controlling entity to another.56 This directly undermines the victim’s efforts to regain control over her own life by communicating to her that the batterer was right all along—that she is incompetent and incapable of surviving on her own.57
Alternately, when control is held by a survivor, she begins to realize that she is competent, that she is not crazy, and that she has worth.58 A battered woman does not regain her autonomy by having others continue to make decisions for her; she regains her autonomy by making decisions for herself.59 Thus, those persons and agencies seeking to help a victim of domestic violence can best meet her needs [*PG167]by empowering her to make these decisions, rather than by dictating solutions.60
New life decisions may not come quickly. Afterall, “[a] woman experiencing what may [be] her lowest and most vulnerable time must face tasks daunting to a person in ideal conditions.”61 The survivor must, therefore, be permitted to work towards her freedom at a pace that is acceptable to her and that increases her sense of autonomy with each step she takes.62
Critics of the empowerment model question the ability of a battered woman to make her own decisions because she is being “coercively controlled” in the relationship and is hence viewed as incapable of assessing her own needs.63 While this may apply to some battered women, evidence instead shows a great deal of rational behavior among victims of domestic violence.64 The rationality of this behavior has a tendency to be overlooked, however, by persons who are unfamiliar with the long list of reasons why a woman might stay in an abusive relationship.65
In many situations, a decision to stay is not a result of “helplessness”66 so much as a conscious choice that the risks of leaving out[*PG168]weigh the benefits.67 A 1992 study found that of the 31 help-seeking strategies described to battered women in the study, the women had tried an average of 13 of these strategies.68 This study challenges characterizations of domestic violence victims as passive and incapable of self-help by showing that battered women continue over time to seek help, even though doing so often results in increased violence.69
Proponents of the directive model focus ostensibly on the safety of the victim, with the presumption that “leaving” is the safest thing a woman can do.70 The fatal flaw in this analysis, however, is that these directive model theorists neglect the overwhelming evidence that a battered woman is often in the greatest amount of danger when she attempts to leave the abusive relationship.71 While no one can predict with 100% accuracy when a batterer may turn lethal, the person best equipped to make this determination is probably not a prosecutor or a divorce attorney, but the victim herself.72 Because a survivor of domestic violence knows her batterer best, she is best able to gauge when his words, expressions, and tone of voice indicate that she is in danger.73 And ultimately, she will bear the consequences of underestimating him.74
The empowerment model recognizes that some of the choices presented in domestic violence cases are simply too important and [*PG169]too difficult to be made by an advocate with little personally at stake.75 When legal options cannot guarantee, and may even jeopardize safety, the victim must be informatively and supportively empowered to make the tough calls for herself.76
Reliance on the battered woman to assess her own safety does not mean that activists and state actors have no role in this process.77 Within the empowerment model there is a very important role for these actors to present a battered woman with options and scenarios that she may not have considered on her own.78 An advocate might even challenge a woman’s assessment of her situation and still be operating within the empowerment model approach, so long as the final decision is left to the survivor.79
Finally, it should be noted that in very limited situations, more state intervention might be warranted.80 This kind of intervention would be appropriate, for example, in cases where a victim of domestic violence suffers from an identifiable mental illness, as diagnosed by a trained clinician,81 that truly prevents her from making decisions on her own behalf.82 It would not apply to cases where a victim simply makes decisions that others would consider “not in her best interest.”83
The victim-empowerment model is widely held by domestic violence experts to be the approach that best addresses the needs of battered women and men.84 Given that empowerment is the preferred approach for dealing with victims, the next question is whether and to what extent the best interests of victims, defined generally here as their need to be empowered, should factor in as a concern of police officers and prosecutors in the state system.
[*PG170]II. The Functions and Responsibilities of the Police and Prosecutors: How Do Victims Factor in?
A. The Police
The oath taken by a police officer is one taken “to the public.”85 Until recent years, police officers generally did not treat domestic violence victims as part of the “public” that they were sworn to protect.86 Historically, the state classified domestic violence as a “private” issue that was inappropriate for intervention by law enforcement agencies.87
Feminists have been successful in demonstrating the discriminatory way in which such a public/private divide allows men to abuse women and children in their homes without fear of sanction.88 As a result, the notion of domestic violence as a “private” issue has been largely discredited.89 Thus, the responsibility of police officers to the public has been expanded to include a responsibility to protect private citizens, which includes victims of domestic violence.90
More specifically, since 1977 nearly all states have codified a greater concern for domestic violence victims within specific domestic violence statutes that affect the roles of police officers.91 These stat[*PG171]utes vary from state to state, but many incorporate the needs of victims into law enforcement functions by re-articulating the elements of domestic violence crimes,92 allowing warrantless arrest in cases of suspected domestic violence,93 and requiring that police officers take affirmative measures to educate victims about their legal rights.94 Through statutory enactment, attention to the interests of domestic violence victims has become deeply entrenched in the official mandate of police forces around the country.95
B. Prosecutors
The prosecutor plays many roles in the American criminal justice system.96 According to ABA Standards 3–1.2(b), the prosecutor is simultaneously an “administrator of justice, and an advocate, and an officer of the court . . . .” In balancing these many roles, there is a general consensus that the prosecutor is primarily responsible in the execution of her duties to the interests of society as a whole.97 The National Prosecution Standards clearly articulate the primacy of the public over the individual interest:
The prosecutor should at all times be zealous in the need to protect the rights of individuals, but must place the rights of society in a paramount position in exercising prosecutorial discretion in individual cases and in the approach to the [*PG172]larger issues of improving the law and making the law conform to the needs of society.98
Nonetheless, even though a victim is not the prosecutor’s “client” in the sense that her interests do not dictate a prosecutor’s decisions, protecting the interests of victims remains an important part of the prosecutor’s job description.99 That respect for victim interests constitutes a valid component of a prosecutor’s constituency is reflected in the ABA guidelines of professional conduct, the fact that the victim is a particularly vulnerable member of society, and the corresponding realization that many of the victim’s interests correlate directly with the interests of society as a whole.100
ABA Standard 3–3.2(h) states that, “Where practical, the prosecutor should seek to insure that victims of serious crimes or their representatives are given an opportunity to consult with and to provide information to the prosecution prior to the decision whether or not to prosecute . . . .” While the victim’s opinion does not direct the decision to prosecute, this standard assumes that her wishes and views will be considered by a prosecutor.101 Standard 3–3.9(b)(v) makes this point more explicitly by listing the “reluctance of a victim to testify” as a valid reason for a prosecutor to exercise her discretion not to prosecute a particular case.102
In addition, prosecutors must consider victim interests in the course of protecting the interests of society because domestic violence victims are among the members of society in the greatest need of protection.103 This is true because victims of domestic violence are generally at a greater risk for future abuse than are other crime victims due to the intimate nature of the relationship between victim and abuser.104 Thus, prosecutors have a heightened responsibility in domestic violence cases to consider the safety interests of the victims in the course of carrying out their societal responsibilities.105
There are also pragmatic reasons for prosecutors to consider the wishes and opinions of domestic violence victims when prosecuting [*PG173]their cases. A victim’s interests are often compatible with society’s overall interest in preserving scarce judicial resources and in encouraging victims to come forward to ask for state assistance in the first place.106 If victims are generally known to be coerced into participating in the prosecution of their batterers, many victims may decide not to report intimate abuse to the authorities. Reluctance to report violent crime demonstrates a serious loss of public faith in the justice system,107 an outcome that is against the interests of society as a whole.
Another practical way in which victim interests affect society is in the distribution of scarce judicial resources.108 Preservation of judicial resources to support the maximum public good is a reality that prosecutors must weigh when considering which cases to prosecute.109 In a case based solely on victim testimony, it is important for prosecutors to consider the willingness of victims to participate in prosecution.110 This is because state resources might be wasted if the prosecution persists and loses a case where the only witness is unwilling or reluctant to testify.111
In conclusion, a prosecutor’s primary responsibility is to the public at large.112 However, in representing the interests of society, prosecutors have a duty to consider the interests of victims as a part of that society, and particularly as the part of society most at risk for future victimization.113 To the extent that prosecutors must show at least some consideration for the best interests of victims, these state actors should incorporate an empowerment model of advocacy into their public roles.114
III. The Compatibility of Mandatory Policies with Victim Empowerment Strategies
In concluding that victim empowerment must factor at least partially into the professional responsibilities and goals of law enforcement officers and prosecutors, it is appropriate to examine whether [*PG174]and to what extent mandatory arrest and no-drop policies empower victims of domestic violence.
A. Mandatory Arrest Policies
Mandatory arrest policies require police officers to arrest a suspect whenever the officer has probable cause to believe that an assault or battery has taken place, whether or not the officer has a warrant or has even witnessed any violence.115 Prior to enacting mandatory arrest laws, most state laws already permitted a police officer to make a warrantless arrest in cases where there was probable cause of domestic violence.116 The novelty of the mandatory arrest laws, therefore, is that they remove discretion on the part of police officers who might be otherwise reluctant to arrest suspects in domestic cases.117
A national growth in mandatory arrest policies followed a widely-circulated and controversial 1984 study that linked an increase in arrests in domestic violence cases to decreased recidivism in batterers.118 While mandatory arrest policies have helped to subject domestic violence crimes to greater public scrutiny, these policies were adopted largely out of concern for law enforcement, through decreasing recidivism in batterers, and less out of a concern for victim empowerment.119
Since their inception, mandatory arrest policies have generated enormous controversy among legal analysts and battered women’s advocates.120 This controversy does not merely center around the empowerment model versus directive model debate.121 Even within the empowerment camp itself, there is extensive debate as to whether mandatory arrest policies actually empower or disempower battered [*PG175]women.122 Within this controversy, mandatory arrest policies have been characterized in four ways: 1) that they are disempowering because they take away control from victims of domestic violence;123 2) that they empower victims by showing that the state will support their efforts to leave their batterers;124 3) that mandatory arrest policies do take control away from victims, but that this usurpation of control is warranted while the victim is incapacitated by trauma;125 and 4) that this stage in law enforcement is neither empowering nor disempowering because it need not involve the victim at all, but is a matter between the defendant and the state.126
1. Mandatory Arrest as Disempowering of Victims
Critics of mandatory arrest argue that the policy disempowers victims of domestic violence by taking away choice from the victim and instituting a penalty on her batterer that she may not desire to impose.127 By removing choice from the victim, critics argue that the state replicates the control wielded by the batterer.128 This threatens to perpetuate the disempowerment of the victim by sending a message that she is too helpless to survive without the controlling direction of a stronger person.129
In addition to this more abstract form of disempowerment, there are specific ways in which mandatory arrest policies can further entrench a victim’s vulnerability in the abusive relationship.130 For example, when police officers respond to a domestic violence call, it is sometimes difficult to identify the primary aggressor, particularly where both parties allege violence and where both parties exhibit injuries.131 Many victims of battering relationships fight back in self-defense during at least some incidents of abuse.132 Thus, it is not uncommon for a primary aggressor to be physically injured when police [*PG176]arrive on the scene.133 Under these circumstances, police officers in a mandatory arrest jurisdiction often arrest both parties rather than determine who was the primary aggressor.134 Such arrests can be extremely detrimental to victims of domestic violence because they hold the victim responsible for her abusive relationship.135 Furthermore, if her conduct cannot be successfully characterized as self-defense, she might face severe consequences, regardless of the overall reality of the relationship.136
Arrest can also have many negative effects on a battered woman with regard to her children.137 Even if an arrested victim is eventually released without being charged, arrest can prevent her from gaining presumptive custody in some states if she later seeks to leave the abusive relationship.138 In addition, mandatory arrest policies can expose a family to intervention by the Department of Social Services (DSS),139 despite the injurious effect such intervention might have on the battered mother.140 DSS frequently forces victims of domestic violence to choose between staying with the batterer and keeping their children.141 While this policy might be warranted in certain cases, it often has the effect of second guessing the survivor’s best judgment about the safest solution for herself and her children. It also ignores the reality that leaving can place a domestic violence victim and her [*PG177]children in far greater danger than temporarily staying.142 Critics of mandatory arrest argue that forcing such a choice too early can gravely disempower women by blaming and placing the responsibility for change on the victims rather than on the perpetrators.143
2. Mandatory Arrest as Empowering to Victims
In contrast, there is an alternate view of mandatory arrest policies that regards these policies as empowering of domestic violence victims.144 According to one analyst, “[t]he most common complaint of battered women regarding response is that the police do not do enough . . . . In fact, the strongest negative ratings of victim satisfaction with police response often come from those women who desired a harsher response.”145 This argument focuses on the notion that, historically, police officers have tended not to arrest batterers, even when victims want arrests to occur.146 There is no question that failure of police officers to arrest under these circumstances trivializes the gravity of victims’ concerns, places the victim in greater danger, and discourages her from calling the police in the future.147
The cases most at issue in the mandatory policy debate, however, generally surround those women who urge against arrest.148 Those who view mandatory arrest as empowering in these instances focus on the safety reasons that the woman might have for vocalizing a request not to arrest.149 These theorists look beyond a woman’s urging against arrest to the meaning behind her 911 call as the best indicator of her true wishes.150 They argue that arrest in these cases best empowers a woman who has taken the step of calling the police to know that such a step will be taken seriously by law enforcement, even if she feels too threatened to directly ask for the arrest of her batterer.151
[*PG178]3. Mandatory Arrest as a Warranted Usurpation of Control During Immediate Trauma
An alternate characterization of mandatory arrest policies acknowledges that these policies do take away a certain amount of control from the victim.152 Under this theory, however, the usurpation of control is warranted in certain instances under the empowerment model because of the immediacy of the threat and the victim’s state of shock.153 When the police respond to an incident of domestic violence in progress, their decision regarding arrest will necessarily be made at the scene and in close proximity to when the abuse took place. A victim at the scene of the crime is likely injured or traumatized from the recent violence. Under these circumstances, she may very well be incapable of determining whether she wants her batterer arrested at that time.154 According to one author:
Safety and stabilization are critical at the beginning; otherwise, the battered woman will only be capable of acting as an agent within the limiting and debilitating confines of her victimization. Her efforts at moving towards desirable outcomes will only be frustrated by the uncontrollable behavior of her abuser. Once a battered woman and her children have been provided a safe and separate environment, her agency is enhanced and her victimization is reduced.155
This characterization of mandatory arrest policies differentiates the circumstances in which such arrests are generally made from other stages in the law enforcement process.156 At this stage, the victim is so close in time to the act of violence that, even under the empowerment model, it would probably not be appropriate to cede to her wishes at that time.157 Instead, a mandatory arrest policy is appropriate because it requires responding officers to arrest the perpetrator in order to create a safe environment for the victim to recover physically and emotionally and to plan her next steps.158
[*PG179]4. Mandatory Arrest as Neither Empowering Nor Disempowering
A final theory characterizes arrest as a stage in the criminal system solely between the perpetrator and the state, with no victim involvement. Unlike the prior theories, this theory rejects the notion that mandatory arrest policies remove choice and autonomy from the victim by claiming that this choice never belonged to the victim in the first place.159 This theory directly criticizes the tendency of law enforcement to address only public wrongs while ignoring crimes committed in the private sphere and failing to acknowledge that “private” crimes are still crimes against the state.160 Once the police have found probable cause from evidence of injury, the state of the home, or neighbor testimony, the police then have a public safety obligation to arrest the abuser, just as they would in the case of a public crime.161
Furthermore, the victim need not even make a statement, because probable cause can be found on the basis of other evidence.162 This arrest sends the message to the perpetrator that, regardless of what the victim herself might tolerate, domestic violence is wrong and will not be tolerated by the state.163 Because such an arrest would surely occur as a result of an act of violence occurring in public, mandatory arrest ensures that the location of violence in the home can no longer serve as a buffer against accountability.164
5. Analysis
At first glance, mandatory arrest appears to be a disempowering policy in that arrest is required regardless of victim preferences.165 A closer analysis, however, reveals two reasons why mandatory arrest policies are not necessarily disempowering to victims after all.166 First, [*PG180]a victim is likely to be in shock when the decision to arrest is made.167 During, and only during, the specific, limited time that the victim is in pain and in the presence of her batterer in their home following the violent incident, it cannot be assumed that she is capable of making a rational decision concerning her relationship with her batterer.168 Arrest does not necessarily mean that prosecution will occur. Even without prosecution, arrest provides a victim with time and temporary safety to recover from the abuse and to think through her situation outside of the threatening presence of her batterer.169 In this short period of reprieve, the police can connect the victim with an advocate and with resources, so that she can make future choices based on an educated understanding of her options.170
Another reason why mandatory arrest does not necessarily disempower is that it does not necessarily involve the victim.171 While the victim may have phoned the police and may choose to make a statement against her abuser, mandatory arrest policies do not require that she do so.172 Rather, a lawful arrest is based on the observations of the police upon their arrival at the scene of the alleged crime.173 It is vital that the police act on these observations in homes with the same seriousness that they act on observations of crimes occurring outside the homes, independent of victim testimony or cooperation.174
In conclusion, while not always empowering, mandatory arrest policies are not necessarily disempowering, because they respond only to an immediate threat of violence, where probable cause is observed first hand by the police.175 Furthermore, mandatory arrest policies increase the likelihood that survivors will be able to make informed decisions later on, once they have had a chance to recover from the immediate instance of violence.176
After arrest, prosecution is the next stage in the criminal process. Here the challenge for prosecutors shifts from determining whether there is probable cause that domestic violence occurred to proving [*PG181]the crime beyond a reasonable doubt. Because the victim of violence might be the only witness to the crime, her involvement becomes important to prosecutors as they seek convictions.
B. No-drop Prosecution Policies
In general, a no-drop prosecution policy is one in which the state prosecutor decides whether to prosecute a domestic violence perpetrator, regardless of the victim’s wishes.177 These policies range from strict or “hard” no-drop policies to highly deferential policies.178 A “hard” no-drop policy is one in which the state will push forward a prosecution using all means available.179 In addition to submitting into evidence the testimonies of police officers and neighbors and excited utterances made by the victim at the time of the alleged attack, prosecutors in these jurisdictions might subpoena a victim to testify against her will.180 Prosecutors may go so far as to arrest or even imprison victims who fail to comply with their subpoenas.181 On the other end of the spectrum, deferential drop jurisdictions defer completely to the wishes of the victims, routinely dropping charges according to victim desires.182
While “hard” no-drop prosecution is most notorious for coercing the participation of victims,183 these policies also include efforts to prosecute that do not involve the victim, such as encouraging meticulous fact finding by police officers and the submission of excited utterances at the trial.184 For the purposes of analyzing the empowering or disempowering nature of “hard” no-drop prosecution, the policy will only be examined to the extent that victims are forced or coerced to cooperate in the prosecution of their batterers. These “victim-coercive”185 no-drop policies are justified by advocates on many grounds.186 The following three justifications will be addressed below: [*PG182]the “good of society,” victim safety, and the emotional empowerment of victims.
The first argument attempts to justify victim-coercive no-drop policies on the grounds that they serve the general state interest of ending abusive relationships187 and because they encourage equality between men and women.188 Thus, the sacrifice of individual victim interests are regarded by these proponents as necessary for overall societal change.189
The validity of this society-based rationale is called into question, however, to the extent that victim coercion by the state mimics the same kind of terrorizing power and control used by the abuser.190 Despite the fact that victims often choose not to testify out of a genuine fear for their safety,191 extremely coercive policies actually permit prosecutors to throw an uncooperative victim in jail for failure to answer a subpoena to testify.192 Here, the state uses the general notion of the “good of society” as justification to employ tactics of coercion like those used by the batterer to force compliance from an already victimized citizen.193 Surely the “good of society” is itself damaged when society’s most vulnerable members come to regard the state with even more fear and mistrust than they regard their abusive partners.194 Hence, victim-coercive no-drop policies cannot be justified solely by the argument that they protect the supposed best interests of society at large.
A second argument in favor of victim-coercive policies focuses on the supposed safety needs of the victims.195 This theory recognizes the power and control dynamics intrinsic in an abusive relationship,196 but argues that domestic violence victims are incapable of making their [*PG183]own decisions because of the totality of the abuser’s control.197 The state is thus justified in forcing prosecution because of the “saving” effect that prosecution is presumed to have.198
The problem with this argument is that it is based on a false assumption that prosecution is necessarily the “best” or safest solution for the victim.199 This overly optimistic view of prosecution ignores the continued access that the batterer often has to his victim during the pending trial, the reality that most offenders plead guilty to the charges to get probation, and the fact that jailed batterers usually receive relatively short sentences.200 Given the reality that even aggressive prosecution will likely yield only a mild, if any, punishment, there are many reasons why a victim might be far safer by not aligning herself with the state.201 The following passage aptly describes the uncertain reality of prosecution:
Prosecution . . . is no guarantee that the violence will stop. A woman who opposes prosecution is taking a calculated risk, as is the woman who actively pursues prosecution. Neither she, nor the judge or the prosecutor, can know with certainty which action will result in less violence. The problem is not that the batterer’s coercion is not real, but rather that it is not always clear that the criminal justice system offers a better alternative.202
Recent studies further support this analysis of prosecution.203 These studies have found that prosecution had no effect on the likelihood of re-arrest of the batterer within a six month period,204 further calling into question the argument that state control benefits the victim.205
[*PG184] A third argument in favor of victim-coercive no-drop policies contends that they actually empower the victim psychologically.206 Proponents of this theory argue that a victim can be empowered through the process of prosecuting her batterer in a court of law.207 Here, the ends (the supposed “empowerment” of a victim through the process of participating in the prosecution of her abuser) are used to justify the means (compelling or coercing victim participation).208
This argument is also seriously flawed.209 First, the theory misuses the term “empowerment” as it is understood in domestic violence literature.210 This theory views the “empowerment” of a victim as an end result that justifies a coercive process.211 Advocates of the empowerment model, however, never intended empowerment to be a result gained at all costs.212 Instead, empowerment is a process of encouraging and facilitating a victim’s own decision-making, and it is through this process that the victim has the best chance to realize personal autonomy.213
A second fatal flaw in this theory is that, even if the end result of “empowerment” is a worthy goal, there is no evidence that victims are actually “empowered” as a result of the policy.214 Instead, revictimization is a widely documented result of forced victim participation.215 Disempowerment as a direct result of victim coercive policies can occur in a number of ways.216 In a worst case scenario, an uncooperative victim will change her original story when she testifies on the stand to protect her partner.217 The prosecutor will then impeach the victim’s testimony through various efforts, such as submitting excited utterances or prior inconsistent statements made by the victim or submitting expert testimony as to why such inconsistency is common in domestic violence victims.218 Hence the victim is disempowered on a [*PG185]number of levels.219 First she is disempowered by being forced to testify.220 Secondly, she is disempowered through the impeachment process that brands her a liar or incompetent to speak in the public forum of a courtroom.221 Coerced participation perpetuates both the emotional trauma that the victim has suffered at the hands of her abuser222 and her already low self esteem by bolstering the notion that she is incompetent and without control.223
From the perspective of victim empowerment, all three arguments in favor of victim-coercive no-drop prosecution are critically flawed.224 Efforts to force victim participation for physical safety or emotional empowerment simply do not hold up against the reality of victims’ experiences.225 Furthermore, a policy with the potential to inflict serious damage on victims for the “good of society” should raise serious additional concerns.
IV. Alternatives to Mandatory Arrest and No-drop Policies That Maximize Crime Control and Victim Empowerment
Mandatory arrest and no-drop prosecution policies represent two extreme approaches currently taken by several states in an effort to “get tough” on domestic violence. These approaches focus more on punishing the perpetrator than on meeting the needs of victims in cases of domestic violence. It is therefore worth considering whether there are alternatives to these extreme policies that balance the goal of crime control with the need to empower victims of abuse.
A. Presumptive Arrest
Presumptive arrest is an alternative policy,226 regarded as an optimal compromise among the various conflicting theories of arrest in [*PG186]cases of domestic violence.227 Presumptive arrest resembles mandatory arrest in that police officers answering domestic violence calls are generally required to arrest the perpetrator, where there is probable cause.228 In a presumptive arrest jurisdiction, however, the police officer maintains a small degree of discretion not to arrest a perpetrator when there are certain countervailing considerations urging against arrest.229 These countervailing considerations will most likely come from the expressed wishes of the victim and her analysis of what will keep her safe.230
The strength of the presumptive arrest approach is in its balance.231 The strong presumption that arrest is the appropriate response to cases of domestic violence demonstrates that the state is as concerned with these crimes as it is with crimes that occur in the public sphere.232 However, the discretion authorized by the policy recognizes the unique difficulties presented in cases of intimate abuse.233 The small window of discretion allows the police to tailor its response to the specific circumstances or wishes of each victim in each case.234 Nonetheless, discretion is held by the police officer, who makes the final decision.235 This is appropriate at the scene of the crime, where danger may be so imminent that efforts to empower the victim to make her own decisions would be completely overshadowed by the disempowering presence of the batterer or the incident of violence itself.236
Critics of presumptive arrest policies argue that granting any discretion to police officers will result in that discretion being exercised too liberally, and that domestic violence will be taken less seriously by law enforcement in general.237 To respond to this concern, presumptive arrest jurisdictions should incorporate the following two suggestions into their policies. First, in order for police to exercise their discretion in a way that is beneficial to domestic violence victims, these officers must receive comprehensive training regarding the dynamics [*PG187]of intimate partner abuse.238 Only when they truly understand these complex dynamics will police officers be equipped to exercise their discretion in a way that best meets the needs of victims and society.239 Second, police discretion not to arrest should be further checked by requiring written findings when this discretion is exercised.240 These written findings should highlight the reasons why the officer decided not to arrest in the face of probable cause of domestic violence, focusing on the impact that arrest would have on the victim.241 This requirement would permit supervisory review of how individual officers are exercising their discretion in the field.242 Under these two conditions, a presumptive arrest policy will best serve the interest of victims and society alike.243
B. Non-Coercive No-drop Prosecution
The preceeding discussion of victim-coercive no-drop policies clearly established that these policies are problematic from the perspective of victim empowerment.244 As with mandatory arrest policies, however, there is potential for a compromise that seeks to both empower victims and bring perpetrators to justice.245 There are many possible variations of this compromise solution, but essentially they all strive to diligently prosecute whenever this can be accomplished without disempowering the victim.246 A good compromise no-drop policy must not force a victim to participate in the trial in any way against her will or better judgment.247 These policies will be referred to as non-coercive no-drop policies.
Non-coercive no-drop policies should be carefully distinguished from policies of complete deference.248 Deferential policies allow the woman, rather than the prosecutor, to make the ultimate decision as to whether the defendant will be prosecuted at all.249 In contrast, in a non-coercive no-drop jurisdiction, a victim only has decision-making [*PG188]authority over the extent of her own participation in the prosecution.250 The prosecutor still makes the final decision as to whether prosecution will proceed, with or without the victim.251
Non-coercive policies prosecute through the use of any and all evidence of abuse that exists, aside from the testimony of the victim.252 Testimony of police officers, family members, and neighbors as to the state of the defendant, victim, and the home; photographs of physical injuries and property damage; medical records; audio tapes of emergency 911 calls; and excited utterances are all examples of evidence that might suffice to convict a particular defendant, even where the victim is unwilling to take the stand.253
Where there is evidence of abuse, besides the testimony of an unwilling victim, that can be admitted in court, prosecutors should attempt to prosecute perpetrators of domestic violence based on that outside evidence.254 The police must be trained to investigate domestic violence crimes with the same scrutiny that they employ in homicide cases, where it is known from the outset that the victim will be unavailable to testify.255 This approach to domestic violence cases will maximize the number of perpetrators who can be brought to justice without incurring the disempowering and revictimizing effects of a forced victim testimony.256
Although external evidence is the cornerstone of non-coercive policies, there are numerous additional approaches that have been adopted by various jurisdictions.257 Some policies allow a victim to withdraw her cooperation only after she watches a video or talks with a victim witness advocate about the cycle of domestic violence258 and about resources available to her through the criminal justice system and the domestic violence victim-support community, so that her de[*PG189]cision to withdraw is an educated one.259 Interestingly enough, prosecutors and judges have noted that the time invested by the criminal justice community in counseling a victim and in really listening to and sympathizing with her needs and concerns often results in an increased willingness of victims to voluntarily cooperate with the prosecution of her abuser.260 In this way, a policy that emphasizes victim empowerment might actually yield better victim cooperation for crime control agencies.261
For all of the above reasons, prosecution offices around the country should continue to bolster non-coercive no-drop policies with creative approaches262 that balance crime control and victim interests. Prosecution of a batterer should be sought whenever possible, so long as the victim is permitted to determine her own level of participation in the process.263
Conclusion
From the perspective of crime control, mandatory arrest and no-drop prosecution policies are accurately seen as complementary.264 Police may feel less inclined to arrest where the arrest is not augmented by forceful prosecution.265 In the same vein, pro-prosecution analysts view arrest that is not followed up by prosecution as insufficient to deter future violence.266 This Note, however, aims to shift the focus from perpetrator to victim. From the perspective of the victim, it makes sense to consider mandatory arrest and no-drop policies separately because of the different purposes that each policy serves. [*PG190]Mandatory arrest serves the immediate safety interests of the victim, at a minimum, providing a short period of separation and safety from the batterer so that the victim can evaluate her options.267 Prosecution, on the other hand, while it may or may not enhance victim safety, aims primarily to hold perpetrators accountable for their criminal actions.268 It is important to recognize the distinct purposes of these two stages in the process so as to uphold the strengths in each policy while simultaneously attacking those elements that are problematic. An optimal policy arrangement need not choose between victim empowerment or crime control, but will combine components of each approach into arrest and prosecutorial policies that both empower victims and hold perpetrators accountable.
The primary interests of police officers and prosecutors are couched, respectively, in terms of “public safety” and “the public interest.” However, both public actors must remember that domestic violence victims, unlike victims of many other crimes, are likely to be targeted for abuse again and again, often with increasing severity.269 Greater abuse is often perpetuated by certain types of state intervention. Hence, in the context of domestic violence, the victims are the members of the public most in need of police and prosecutorial responsiveness and sensitivity.270 A conscientious law enforcement officer must be able to gauge those individual circumstances under which arrest might place a victim in greater danger.271 Likewise, a conscientious prosecutor must appreciate that prosecution that forces victim cooperation might further endanger the victim, violating the responsibility that the prosecutor has to the public interest.272
One important component of a victim-centered approach to justice is the recognition that mandatory policies are problematic in their lack of flexibility.273 Giving law enforcement the discretion to tailor responses to individual victim needs necessitates, however, that police and prosecutorial staff be well-trained and sensitive to the [*PG191]unique issues surrounding domestic violence.274 Absent this training, there is a real danger that too much discretion will be ceded to victims in cases where arrest and prosecution could proceed against a defendant without the victim’s cooperation.275
Along with enhanced training on the dynamics of domestic violence, law enforcement personnel should also become increasingly knowledgeable about the array of community-based resources and services available to battered women and men.276 A “coordinated community response” can link the array of domestic violence services,277 making them more easily accessible to victims. Such an approach recognizes that victims have needs that are not only legal but also medical, financial, educational, emotional, and social.278 By creating contacts with existing non-legal services, the criminal justice system can continue to focus its resources on legal objectives. The non-legal community is an important resource that can assist police and prosecutors in tailoring their own responses to the particular needs and situations of battered women.
Mandatory arrest and no-drop prosecution policies demonstrate the progress that law enforcement has made in recognizing domestic violence as a crime that warrants societal outrage and batterer accountability. The focus that each policy places on victim safety, although na�ve to the greater danger that state intervention may create, is commendable at least in intent. If immediate safety or even saving lives are the only goals of the criminal justice system, however, then these goals are far too limited. The goal of every advocate in the fight against domestic violence must not end at the saving of a life, but must, more importantly, empower lives worth living.279
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