2.4.ADDRESSING VICTIMS’ RELUCTANCE TO PROSECUTE
Prosecutors encounter a distinct minority of sexual assault and domestic violence victims: the subsection of victims who choose to report the assault to law enforcement. Most sexual assault and domestic violence victims do not report the crime to law enforcement (see supra sections 1.1.3 and 1.1.4) and they are under no legal obligation to do so. You will encounter victims who are ambivalent about proceeding with a prosecution, or who later regret that their case was reported.
Many victims are ambivalent due to misconceptions about the court process that you may be able to correct. But legitimate, pressing concerns exist that cause individuals to question the value of participating in a prosecution: issues of privacy, safety, and financial well being; issues of housing and employment stability; and immigration issues. You must review any and all pertinent matters of concern with each victim. At each stage of the prosecution, give her the opportunity to ask questions and express concerns.
Remember that in most sexual assault cases, and all domestic violence cases, the perpetrators are known acquaintances. Thus, it is more likely than not that the perpetrator will be known – and cared about – by other members of the victim’s family/neighborhood/office. People often respond in non-supportive and potentially harmful ways to a victim who has reported a crime against someone they care about.
Discuss the dynamics of abusive relationships, (see supra section 1.1.5, The Dynamics of Abusive Relationships). Discuss all the statutory privacy protections afforded to sexual assault and domestic violence victims. Discuss the efficacy of criminal intervention – as well as the heightened safety risks of criminal intervention. Provide an honest assessment of the case. But above all, listen. Do all that you can to unearth and resolve whatever concerns the victim may have.
The victim may tell you that she feels responsible and afraid, and feels that a court case will be more harmful to her and her family. There are responses, comments and appropriate words of support that will address a victim’s concerns. Here are a few suggestions:
Feelings of responsibility and guilt in a victim can evoke irrational views of the abuser. She may feel sorry for the defendant or be opposed to any punishment, particularly if it means the abuser will be separated from the children. She may blame herself for not being able to prevent the abusive behavior or believe that she was “in the wrong place at the wrong time.”
You can remind the victim that the defendant has made choices for which there are consequences. He has committed a crime that society cannot tolerate and he must be held accountable. Without re-traumatizing her, you can help her remember how hurt and frightened she was during the assault.
You can also:
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Discuss the historical contexts of domestic violence and rape law, and the tradition of victim blaming, which a perpetrator often will do as sources for her feelings. (See supra sections 1.1.1 and 1.1.2, Historical Contexts.)
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Educate victims that perpetrators commonly blame victims for everything.
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Remind the victim that she is not in control of the prosecution or the outcome. Explain to her that the prosecutor’s office is prosecuting the batterer on behalf of the Commonwealth, that jurors of the Commonwealth will render a verdict, and that if convicted, the Commonwealth’s judiciary will pass a sentence. (N.B.: This may be a particularly complex issue for domestic violence victims. For some battered women, the abdication of control over whether a prosecution will occur is a relief. For others, it is cause for anger or discontent. Because their abusers are so controlling, this may exacerbate a feeling that they have no control over anything in their lives.)
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Explain the rape shield act to all rape victims.
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Explain the current laws on records privileges to both domestic violence and sexual assault victims. (See infra section 5.4, Access to Privileged Records and Communications.)
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The victim may feel embarrassed about her situation and find it difficult to verbalize her experiences publicly, particularly those involving sexual intimacy or sexual assaults. She may feel this is a private matter and be embarrassed that she is being abused by the person she loves.
Acknowledge her burden. Support her emotionally. Express concern for all that she has experienced, pride for what she is doing to help hold the offender accountable, and optimism that the future will be better.
Some victims may fear for their safety if they proceed with the prosecution and fear they will not be protected if they do so.
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Execute a detailed safety plan with the victim (see infra section 2.7, Safety Planning.), including escape plans, emergency numbers, emergency shelters, and special police services, if available.
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Show her you will prosecute aggressively and skillfully. Honestly assess the chances for a successful prosecution.
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Discuss with the victim the reality of the offender’s behavior, and the likelihood that the violence will probably occur again -- and may increase in severity -- unless serious intervention deters the abuser.
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Encourage her to call you and the advocate with any questions or concerns, regardless of when the next court dates are scheduled.
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If you think the victim’s safety may be in jeopardy because of the prosecution, discuss a potential nolle prosequi with your supervisor.
The victim may fear that the abuser will be mad and end the relationship if she testifies against him.
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Remind her that the criminal prosecution isn’t destroying the relationship -- the violence and abuse is destroying the relationship
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The victim may believe that a court case, and/or incarceration will be bad for the kids. Tell her the abuser’s violence may be the greatest threat to the lives, safety and emotional well-being of the children.
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Enlighten her about the effects of domestic violence on children. Tell her about the “cycle of violence” in which children raised in
homes with violent parents or parental figures often consider the abuse normal behavior and may perpetrate that violence on their own spouses and children.
Often the victim is financially dependent on the abuser and fears that going forward with the case will jeopardize her financial security and that of her children.
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Describe the options you choose from in making your sentencing recommendation. Explore the possibility of a sentence that does not involve incarceration. However, be clear that the judge imposes the sentence; the Commonwealth just makes a recommendation.
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Discuss incarceration and the fact that it could be a short-term hardship which might result in long-term gains if it deters future abuse and violence.
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Make all appropriate referrals to social services and government assistance agencies. (See infra section 2.7.)
Some victims fear being humiliated in court or worry that the judge and/or jury will not believe her.
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Emphasize your efforts towards a successful outcome in the case and that you carry the burden of convincing the judge and/or jury of the defendant’s guilt. Let her know she is not alone, and that there are other witnesses, corroborative evidence, exhibits, and physical evidence to support her testimony. (N.B.: be careful not to provide any information that alters or affects your witness’ testimony.)
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Do not mislead her. Acknowledge the risk, emotionally and physically, that she is taking in going forward with the case. Explain that no case that goes to trial is a sure thing. Explain that juries can be unpredictable and judges can be temperamental. But then bring the conversation back to the specific strengths of this case, and the importance of going forward.
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Remind her that no matter the outcome, she is sending a message to the defendant that he cannot intimidate her. Reassure her that society, including the prosecutor, the advocate, the police, and the other witnesses think what he is doing is wrong. Make sure she knows her participation in the case, and the strength she exhibits in testifying are commendable.
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Show her you are proud of her, and thankful for her participation in the case.
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Tell her about rules of decorum. Tell her about the rules against badgering a witness, and the objections you can make to defense questions (such as “asked & answered,” “irrelevant,” etc.).
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Tell her court is very different from TV courtroom scenes, where everything is made more dramatic to increase ratings.
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Tell her it is O.K. not to remember every single detail -- that it is actually beneficial to let the jury see she is a human being. Explain that if she is not sure about the answer to a question, or forgets the answer to a question, she should simply say that, and not let the defense attorney “put words in her mouth.” Also explain how you can refresh her recollection with documents and that all she has to do is tell the truth.
The victim may believe he has changed and will never abuse her again.
You can:
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Ask if he has made similar promises in the past.
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Ask what is different this time
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Ask if these promises could really just be an attempt to get her to do what he wants, or an attempt to avoid legal consequences for his actions.
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Ask what steps he has initiated in the past to change his abusive behavior.
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Ask her if her heart wants to believe his promise, but her head really tells her not to.
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Educate her about the “Power and Control Wheel” and the “Cycle of Abuse/Violence.” (See supra section 1.1.4, Scope and Impact of Sexual Assault.)
The victim may feel she has gone far enough; he will be deterred by her actions to date.
You can:
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Discuss how powerfully disabling “secrets” can be.
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Show her the behavior is against the law, and that it is your job, the police’s job, and the court’s job to uphold and enforce the law.
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Help her to understand why she may have the feeling that this is “just” a private matter. Remind her of the historical and cultural contexts of domestic violence and sexual assaults (centuries of treating domestic violence and sex crimes as “private matters”). Emphasize which types of conduct may be considered “private” and which must be public in order to insure fundamental needs of health and safety.
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Ask if she would respond the same way if the abuser were a stranger.
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Express concern for her safety and well being.
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Tell her the impressive results of intervention: studies and anecdotes uniformly show that swift and sure intervention (such as police involvement at the scene of an incident, and the immediate arrest of the abuser) reduces the risk of future violence by the offender. (N.B.: Many studies also show the greatest time of risk for a domestic violence victim is immediately following a report to law enforcement.)
The victim may feel she can not endure “reliving” the sexual assault (or abusive incident) by testifying.
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You must be able to distinguish between manageable discomfort and unmanageable trauma. If the victim is visibly moved by discussing the events, but is able to discuss them with you, talk about testifying in court. After explaining the players and the processes, talk about the similarities between retelling the events to you, and retelling them to a larger audience in a courtroom. Discuss the rules and parameters which define what types of questions are allowed on cross, and what types of conduct attorneys may exhibit. Involve the advocate. Reach a consensus among the three of you as to the victim’s ability to talk about the event on the stand.
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If the victim appears traumatized, don’t push. Suggest that she discuss with her therapist and/or her doctor the decision of whether or not to testify, and whether to do so will be in her best interest. (To maximize her privacy interests in light of possible defense challenges to mental health records, exact extreme caution in contacting mental health professionals, even if the victim consents. If you do not know if the victim is receiving mental health services, you have no duty to inquire. And if you do not know, you can not provide such information in response to discovery requests.
The victim may have made up her mind that she will not testify.
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Acknowledge the difficulty of her position, and of her decision.
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Remind her of the benefits of prosecution, and intervention in general.
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If you proceed without her cooperation, remind her that the Commonwealth is bringing the case, the Commonwealth will continue with the case, and, if appropriate, the Commonwealth may compel her to testify. However, be extraordinarily sensitive in your choice of words and in your tone of voice. With respect to domestic violence and sexual assault victims -- victims of crimes which, by definition, are exacted by force and coercion -- prosecutors need to be careful not to use force and coercion under the guise of intervention.
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Remind her your door is always open for this case, and if needed, for future cases. Relate that other victims have returned for help when they are feeling ready. (N.B.: If they were treated respectfully the first time.)
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