Prosecuting Domestic Violence without Victim Participation

Date01 November 2002
Published date01 November 2002
DOIhttp://doi.org/10.1111/1468-2230.00412
Prosecuting Domestic Violence without Victim
Participation
Louise Ellison*
This article explores the evidential challenges victim withdrawal presents in
domestic violence cases. More specifically it examines innovative measures taken
in the United States to overcome problems of proof typically associated with
domestic violence prosecutions. These evidentiary initiatives have facilitated a
shift towards so-called `victimless'prosecution in the context of dome stic violence
which dispenses with victim participation. Drawing upon a `freedom model'of
criminal justice, this article examines whether recent developments in the United
States might be emulated as a means of addressing the high rate of attrition in
domestic violence cases in England and Wales.
As long as the investigation and the prosecution focus on the victim, cases will be
inadequately investigated and prosecutors will fail to win convictions in large numbers
of cases.
1
Complainant withdrawal presents prosecutors in England and Wales with formi-
dable challenges in domestic violence cases. In one recent study as many as 46 per
cent of victims withdrew their support for a prosecution following an initial
complaint.2Others estimate a significantly higher withdrawal rate. In England and
Wales, complainant withdrawal in the context of domestic violence appears to have
an almost singular effect; namely, discontinuance. Research to date suggests that
police and prosecutors rarely proceed with cases without a co-operative
complainant. With regards to police decision-making, Hoyle, for example, found
that the wishes of the victim not to proceed were crucial in the decision not to
charge, even in very serious cases. She reports that it had become an almost
inviolable working rule that victim withdrawal marked the end of a case.3Similarly,
the main reason for discontinuance by Crown Prosecutors was a victim’s with-
drawal of support after a case had been sent for prosecution. Cases without a co-
operative victim were classified as ‘unprosecutable’ and ‘unwinnable’.4Research
by Cretney and Davis paints a similar picture. The researchers found that
prosecutors would generally only proceed if the complainant was committed to the
prosecution process, even in respect of very serious assaults.5They conclude: ‘As
far as ‘‘domestic’’ violence ... [is] concerned, the low conviction rate is a direct
result of victims’ inability or unwillingness to make a formal complaint or to give
evidence when called upon to do so’.6This has remained true following the
ßThe Modern Law Review Limited 2002 (MLR 65:6, November). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA.834
* Lecturer in Law, University of Manchester. I would like to thank Andrew Sanders and Elaine Baker for
their valuable comments on an early draft of this article.
1 C. Gwinn, Toward Effective Intervention: Trends in the Criminal Prosecution of Domestic Violence
(San Diego City Attorney’s Domestic Violence Unit) .
2 Crown Prosecution Service Inspectorate, The Inspectorate’s Report on Cases Involving Domestic
Violence (London: Crown Prosecution Service Inspectorate, 1998).
3 C. Hoyle, Negotiating Domestic Violence (Oxford: Clarendon Press, 1998) 180.
4ibid 168.
5 Cretney and Davis report a 52 per cent discontinuance rate in theirsample of 205 domestic violence cases.
A. Cretney and G. Davis, ‘Prosecuting ‘‘Domestic’’ Assault’ [1996] Criminal Law Review 162 166.
6 A. Cretney and G. Davis, Punishing Violence (London: Routledge, 1995) 144.
extension of the compellability provision to married partners (section 80 Police and
Criminal Evidence Act 1984).7In 1998, the CPS Inspectorate published a thematic
review of the prosecution of domestic violence cases.8The review body found that
in over 75 per cent of cases where the complainant withdrew her support for the
prosecution the case was terminated as a result. Available evidence would thus
suggest that the ‘wishes’ of the victim are a principal driving force shaping the
prosecution of domestic violence in England and Wales. The prevailing approach
can be termed ‘complainant-reliant’; in the absence of a co-operative complainant
the most likely outcome is discontinuance.9
This article explores the evidential challenges victim withdrawal presents in
domestic violence cases, while recognising that a sizeable number of such cases
are in fact terminated on public interest as opposed to evidential grounds. More
specifically it examines innovative measures taken in other jurisdictions to
overcome problems of proof typically associated with domestic violence
prosecutions. In the United States prosecutors have responded to the problem of
complainant withdrawal by adopting an approach that is less complainant-
dependent. A number of states have gone as far as to implement novel measures
designed to facilitate the prosecution of domestic violence without the
participation of the alleged victim; so-called ‘victimless’ prosecutions. In other
words, prosecutors have begun to treat cases as though no victim were available to
testify, conducting cases in a similar manner to that which they conduct murder
trials. According to reports, for example, the majority (around 70 per cent) of
domestic violence prosecutions in San Diego, California, proceed without the
participation of the alleged victim with a high level of success. This challenges the
widespread view that the probative burden in domestic violence cases cannot be
satisfied without the victim’s testimony.10 Among the measures introduced to
facilitate victimless prosecution are specialised evidential rules in domestic
violence cases and the development of enhanced evidence gathering techniques
and procedures. This article examines these evidentiary initiatives and considers
whether they might be emulated as one means of addressing the high rate of
attrition in domestic violence cases in England and Wales. Such an examination is
timely given the recent publication by the Crown Prosecution Service of a revised
policy for the prosecution of domestic violence.11 The document reportedly signals
an increased willingness to prosecute domestic violence cases even when the
victim may be opposed to such a course.12
Crime control and due process models of criminal justice provide an inadequate
evaluative framework in this context. Packer’s models essentially have little to say
about victims of crime and provide no guidance on the central question raised by
‘victimless’ prosecution; namely, whether prosecutions should proceed in the
absence of victim endorsement.13 More generally, due process and crime control
7 A. Cretney and G. Davis, ‘The Significance of Compellability in the Prosecution of Domestic
Assault’ (1997) 37 British Journal of Criminology 75.
8 n 2 above.
9 Others have used the term ‘victim choice’ to describe the existing model. See A. Sanders and C.
Hoyle, ‘Police Response to Domestic Violence: From Victim Choice to Victim Empowerment’
(2000) 40 British Journal of Criminology 14.
10 A view asserted by, for example, Cretney and Davis. See n 6 above, 172.
11 Crown Prosecution Service, CPS Policy on Prosecuting Cases of Domestic Violence (London: Crown
Prosecution Service, 2001).
12 Crown Prosecution Service Press Release, Zero Tolerance for Domestic Violence 28 November 2001
136/01.
13 H. Packer, The Limits of the Criminal Sanction (Stanford: Stanford University Press, 1968).
November 2002] Prosecuting Domestic Violence without Victim Participation
ßThe Modern Law Review Limited 2002 835

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