What is behind it & what judges can do about it
A judge presiding over a criminal docket will quickly conclude that family violence cases are different.
In an auto theft case, for example, the victim is usually cooperative: she wants to help the police and prosecutor bring the perpetrator to justice for his crime. But in a case involving family violence—especially intimate partner violence—the victim often recants, or simply does not honor a subpoena to appear in court. Prosecutors know this all too well—one survey of prosecutors in California, Oregon, and Washington revealed that over 90 percent of them believed domestic violence victims were less likely to cooperate with prosecutions.
Another study, conducted in Brooklyn and Milwaukee, cited victims’ failure to appear (or to testify) as the most common reason for dismissals of criminal domestic violence cases. (Tom Lininger, “Prosecuting Batterers After Crawford,” 91 Va. L. Rev. 747 (2005) at 768, 769) Why is this? Explaining the high “dropout” rate in domestic violence cases requires an appreciation of one deceptively simple fact: these are the only criminal cases on our dockets where the victim and defendant often ride to court together in the same car.
Research has shown several reasons for high victim attrition rates: threats of retaliation, economic dependence on defendants, a belief that the incident was not severe enough to justify criminal prosecution, and victims’ problems with substance abuse, clinical depression, and anxiety, as well as their belief that the criminal justice system cannot truly help them.
Recently, one study looked at victim-offender relationships for clues as to why victims seem to be so susceptible to dropping out of domestic violence prosecutions. Starting in 2005, social scientists from Ohio State University studied the interactions between defendants accused of intimate partner violence and their victims. While their cases were pending they listened to recorded telephone conversations between the defendants, who were in jail awaiting trial, and their alleged victims. The researchers hoped that by analyzing these calls, they could better understand why victims recant (jail calls were routinely recorded by authorities, so the couples had no expectation of privacy). Out of 25 couples whose conversations they listened to and closely parsed, 17 of those victims recanted. Their cases involved “felony-level” injuries, including broken bones and loss of consciousness. The Ohio State researchers were actually able to identify a cycle for the recantation process: at the beginning of the phone calls, victims confronted defendants with details from the incident and very clearly asserted their individuality and separation from the defendants. But over time, defendants engaged in three identifiable tactics that led to victims’ decisions to rejoin the couple, and to even recant.
First, defendants minimized what happened during the incident, saying, for example, “I didn’t push you like you think I pushed you.” Second, they appealed to the victims’ sympathies by describing horrible conditions of confinement (“I don’t know if I can do another day here”) and daily suffering, even going so far as to threaten suicide, due to the pain of being kept away from victims and their children.
They also told the victims that their children were suffering without their fathers’ presence. Finally, the couple would both recall their lives before they were together, become nostalgic and reminisce about their courtship, and bond over their common past. Some couples saw themselves as united against others, “outsiders” such as the prosecutors, who sought to divide them.
At that point, defendants would either ask or tell the victims to recant (while continuing to ask for their sympathy), and the couple would, together, craft a plan for recantation. This study, published in 2011 in the journal Social Science & Medicine, was conducted by Amy E. Bonomi, Rashmi Gangamma, Chris R. Locke, Heather Katafiasz, and David Martin. Their article is entitled, “‘Meet me at the hill where we used to park’: Interpersonal Processes Associated with Victim Recantation.”
Bonomi and her colleagues concluded that more external support systems for victims—including victim advocates—might help them resist the pressure to recant. In fact, researchers have found that victim advocacy services do reduce victim attrition rates.
A study of misdemeanor domestic violence cases in Kansas City, Missouri, found that “the strongest predictors of victim cooperation were completion of a victim impact statement, services provided by the shelter advocate, and a letter sent to the victim.” In fact, the simple act of taking a victim impact statement raised the odds by 26.7 times of victim cooperation (defined as staying with the case through to its disposition).
Advocates helped victims understand the court system, encouraged them to continue with the case, and helped victims express their needs to the court. But this study, conducted by Christina M. Camacho and Leanne Fiftal Alarid and published in 2008 in the journal Violence and Victims, echoed, to some extent, the findings of Bonomi et al.: victims who were married to the perpetrator, or who had a family relationship with the defendant, were less likely to cooperate with the prosecution than those who had merely “social” relationships with their accused abusers.
So what are judges to make of this research? Clearly, contact between the state’s key (and sometimes only) fact witness and the accused can thwart the criminal justice process and unduly influence the outcome. Defendants who defy no-contact orders and manipulate victims á la the Bonomi study are putting extra weight on the scales of justice, and unfairly tipping the balance of power.
In the courthouse, Ind. Code 35-37-4-11 requires courts to ensure that victims do not have contact with defendants, their relatives, and their friends, and even authorizes separate waiting rooms to accomplish that goal. During hearings, Ind. Code 35-37-4-12 grants crime victims the right to not publicly disclose their home address, telephone number, and place of employment (although courts may ask them such questions in camera). And in some cases, the legislature has recognized that time is the enemy of justice and discouraged continuances, requiring judges to make findings on the record before continuing trials. Ind. Code 35-36-7-3 aims to protect the integrity of the outcome when victims are children or endangered adults, or when certain types of crimes are charged.
Finally, judges can issue no-contact orders as a condition of pretrial release or bail, even if a defendant has not yet been released from pretrial detention (see Ind. Code 35-33-8-3.2 (a) (4)). A swift disposition is always preferable, but if that is not possible, judges should inform state’s witnesses and defendants that violations of no-contact orders and other conditions of pretrial release will be taken seriously. Alleged victims should be given instructions on what to do in the event of a violation. Ind. Code 35-33-8-5 empowers courts to revoke bail (or release on recognizance) if the defendant is arrested for a new offense or violates the conditions of pretrial release. Judges should be aware of these options in criminal cases.
In the next issue of Court Times and Part 2 of this article, we will look at the “dropout rate” in civil protection order cases.
