Prosecutorial Reform Efforts
last updated February 1, 2006

A variety of strategies have been developed with the goal of improving prosecutor response to domestic violence. The goals of any prosecutorial policies or activities should be: (1) to protect the victim, (2) to deter the defendant from further violent acts by holding him accountable for his actions, and (3) to communicate to the community that domestic violence will not be tolerated. Prosecutors should always ask the question in domestic violence cases, even those with low level injuries, "Could this end up a homicide?" One prosecutor writes: "We must make misdemeanors matter. We must realize that true success is not prosecuting a murderer, it is preventing the murder. It is not locking up offenders for decades, it is stopping the violence so that escalating violence does not require prison beds for most domestic violence offenders." From Casey Gwinn, Making Misdemeanors Matter, 3 Homefront (1998).

One important strategy for reforming prosecutor response to domestic violence in the United States has been to create dedicated domestic violence units with the state prosecutor's office—that is, teams of prosecutors who prosecute only domestic violence cases. These units can consist of not only attorneys but other important personnel as well—advocates who work with victims, investigators, and medical personnel. Some prosecutor's offices have centers or clinics that provide assistance in obtaining civil orders for protection. These court orders direct offenders to stay away from victims, their children and their home for a period of time to protect a woman and her children.

Specialized domestic violence units have a number of advantages. Such units: (1) allow prosecutors to develop expertise and knowledge in the dynamics of domestic violence, (2) allow regular review of policies and practices to ensure these policies best protect victims and hold offenders accountable, (3) facilitate more aggressive prosecution of even low level injury cases, (4) provide for earlier intervention aimed at preventing the escalation of the violence, and (5) allow for more efficient coordination by the prosecution unit with other members of the community.

Many prosecutors' offices have policies that provide for prosecution of cases without the victim, if there is sufficient independent evidence. These policies are sometimes referred to as "absent victim" prosecutions. This strategy takes the prosecution burden off the victim and places it in the hands of the state. An absent victim policy sends the message to the offender and the community that the state sees domestic violence cases as a community priority. An important goal of this policy is to eliminate the incentive for batterers to threaten victims with further violence if they pursue prosecution. One prosecutor's office explains its "No Dismissal" policy as follows:

Taking the responsibility for the prosecution away from the victim, and placing it at the prosecution agency, is done to insulate the victim from the batterer's anger, retaliation, and coercion to "drop" charges while simultaneously recognizing the fact that the victims face a multitude of competing survival necessities that may lead them to believe that having the criminal case dismissed is ultimately in their interest.

From Casey Gwinn, Domestic Violence Prosecution Protocol, City Attorney City of San Diego Child Abuse/Domestic Violence Unit (1999).

In absent victim prosecutions, the initial gathering of evidence is especially critical. Because domestic violence is perpetrated in the home and is rarely reported, the victim's own testimony is often the strongest evidence of the abuse. Because evidence is so important in absent victim prosecutions, it is necessary for prosecutors to work with police in developing and implementing effective strategies to collect additional and supporting evidence.

It is important to note that not everyone agrees that state control of domestic violence cases is always the best policy. As the Special Rapporteur explained in her 2003 report: "Some have argued that 'mandatoriness' goes against the concept of women's human rights and that the victim should retain control of the proceedings, while others have argued that mandatory arrest and prosecution will prevent abuse of discretion by the police and serve as a strong deterrent to abusers." From 2003 Report of the Special Rapporteur on Violence Against Women, Developments in the area of violence against women (1994-2002) (E/CN.4/2003/75 and Corr.1) (6 January 2003). When given complete control over the case, prosecutors may even decide to compel the victim to testify by subpoena. To transfer the decision about whether to pursue prosecution from the victim to the state necessarily assumes that the government knows better than victims themselves what is best. "At best criminalization of domestic violence offers one option to crime victims who may or may not wish their most personal problem (which is also a public problem) to be dealt with through the idiosyncrasies of the laws of evidence and the trial process." From Caroline G. Nicholl, Forcing Women to Testify Against Their Will: Does This Protect or Predjudice Women?, Violence Against Women 30-10 (Joan Zorza ed., 2002). The risk in transferring control over prosecution from the state to the victim is that in fact, it may be the abuser, through threats and intimidation, who is actually in control.

Although the state must assume responsibility for its response to domestic violence, it cannot and should not assume that it knows what is best for the victim in any particular context. In some jurisdictions, prosecutors and judges have sought to require battered women to seek particular services, often making legal relief contingent on their fulfillment of this condition. As Avalon explains, however, such mandated services are "misguided help" and more often than not undermine women's safety and batterer accountability: "No service is universally appropriate or useful to all women all the time. Mandating the wrong service, or a good service at the wrong time, only sets women up for failure. Successful use of a service by a woman does not justify this process." From Stephanie Avalon, Advocacy and the Battered Women's Movement (October 1999).

Finally, prosecutors' offices have also sought to improve their response by developing ways to provide victims and witnesses with additional information and support. Some offices coordinate with battered women's groups to provide these services, while others have created a victim/witness advocate position within their offices to assist victims throughout the criminal proceeding. Ensuring that the victim is provided with support and assistance, that she understands the process and her role in it, and that she is given an opportunity to provide input into the case can help increase her willingness and ability to participate in the process. From Linda A. McGuire, Criminal Prosecution of Domestic Violence.

For an extensive discussion about the advantages and disadvantages of absent victim discussion, see Daryl B. Coppoletti, It's Time to Take the Burden Off Victims in the Prosecution of Domestic Assault Cases.

Chapter 4 and Chapter 5 of the Toolkit to End Violence Against Women, created by the National Advisory Council on Violence Against Women and the United States Department of Justice's Violence Against Women Office, offer concrete strategies that can be used to improve the response of the criminal justice system to domestic violence. Also, the 2009 United Nations report entitled "Handbook for legislation on violence against women" includes recommendations on investigation and legal proceedings of domestic violence cases as well as protection orders.  For the Russian version of the recommendations to the report, click here to download.