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Practical Implications of Current Domestic Violence Research: For Law Enforcement, Prosecutors and Judges

Published June 2009

Chapter 6. Prosecution Responses

Section  6 — Is victim fear of prosecution well founded?

Victim fear of their abusers appears to be well founded. Multiple prosecution and arrest studies broadly concur that abusers who come to the attention of the criminal justice system who reabuse are likely to do so sooner rather than later. In the Quincy court study, about 40 percent of the arrested abusers reabused their victims within one year. Forty-four percent did so before the study arrest was prosecuted in court. The average case took about six months from arraignment to prosecution. [23] Similarly, in a Cook County study, 30 percent of the defendants were rearrested within six months of their study arrest, and half of the arrests were for a new domestic violence offense. The average rearrest time was only 29 days after initial arrest. In addition, in almost half of the cases (45.9 percent), the defendants tried to talk the female victims out of testifying. Moreover, 29.1 percent of these defendants stalked their victims before the trial, and 8.7 percent specifically threatened them. [107] An Indianapolis prosecution study found that almost a quarter of the defendants reabused their victims before the pending trial. [67]

In the Brooklyn Specialized Felony Domestic Violence Court — where cases took 6.5 to 7.0 months, on average, to be disposed — 51 percent of defendants charged with domestic felonies (other than violation of protective orders) were rearrested before disposition; 14 percent were arrested for a crime of violence; and 16 percent were arrested for violation of a protection order. Among those charged with order violations — a felony in New York — the rearrest rate was 47 percent, including 37 percent for violating the protective order again. [164]

Although these studies do not demonstrate that prosecution causes reabuse, they indicate that pending prosecution by itself may not deter recidivist abusers.

Implications for Prosecutors and Judges

Prosecutors must gauge defendant risk pending trial and take appropriate measures to address it in order to protect victims and to successfully prosecute the case. Judges should insist that police and prosecutors document and inform the court if defendants reabuse, threaten or intimate victims while cases are pending so that possible additional charges can be filed and subsequent absences of victims who are too fearful to testify in court can be justified, allowing for substitute hearsay testimony. The equitable doctrine of forfeiture, affirmed in Davis v. Washington, 126 S. Ct. 2266, 2280 (2006), precludes a defendant from using his right to confrontation to bar the admission of a victim's statements when his wrongdoing caused her unavailability at trial. (Research basis: Rapid reabuse rates are documented in multiple studies from disparate jurisdictions. Research on the impact of specific prosecution practices is rare. Victim fear is documented in several victim studies in different jurisdictions.)