Prosecution refers to the stage in the criminal justice process following arrest and prior to court disposition. Attending to prosecutorial practices is thus critical for understanding and addressing criminal justice responses to interpersonal violence. Much of the literature on prosecutorial practices focuses on intimate partner violence (IPV), the type of interpersonal violence that is most prevalent and thus has received the most attention from prosecutors.
The landscape of practices with regard to the prosecution of interpersonal violence has slowly shifted over the past decades, based in part on an increased awareness of the needs of victims, the impact of the prosecution process on victims and perpetrators, and the limitations of the power of the legal system in redressing interpersonal violence. More recent prosecutorial approaches have included several innovations: the use of multidisciplinary teams including prosecutors, victim advocates, and sometimes investigators; the use of prosecutor units specializing in specific forms of interpersonal violence; and evidence-based prosecution. These newer approaches are also reflections of changes in other parts of the legal system, such as the emergence of specialized IPV courts, mandatory or pro-arrest policies in IPV, and child advocacy centers for forensic interviewing in child abuse cases. In addition, there is increasing interest in the use of restorative justice approaches as alternatives to traditional adversarial prosecution.
Prosecution Of IPV
Historically, prosecutors’ motivation to charge and prosecute IPV cases has been limited by victim ambivalence and perceived lack of evidence, resulting in low rates of prosecution. In turn, police officers were reluctant to arrest suspects or to devote time to investigating or documenting a case over concerns of little or no payoff in prosecution of the arrestee. Victims may have perceived the law enforcement and justice system as unwilling to protect them and their children, and hence participating in such a process did not seem worth the cost of angering the batterer. Classification of IPV as a low-level offense by prosecutors also may have discouraged victims by leading them to believe that the crime was trivialized and that the risk of cooperating with prosecution may not have been worth the minimal consequences. Newer approaches to the prosecution of IPV crimes have been developed, in part, to address these challenges and also have been fueled by the significant increase in case filings to prosecutors’ offices as a direct result of mandatory or pro-arrest policies.
Evidence-based prosecution is an effort to successfully prosecute IPV based on a thorough investigation and gathering of all available physical, audio, and photographic evidence. In contrast to earlier prosecution approaches, evidence-based prosecution does not require or rely on victim testimony. The responsibility for prosecuting batterers is thus shifted from reliance on victim testimony to reliance on independent evidence. Evidence most frequently used includes transcripts of 911 calls, photographs of the victim’s injuries, medical records of injuries, excited utterances (statements made during the excited event by victims, witnesses, or alleged perpetrators), and the prior criminal IPV history of the defendant. Evidence-based prosecution is used interchangeably, though somewhat inaccurately, with no-drop prosecution policies, which limit or prohibit charges from being withdrawn once prosecution has started. Jurisdictions vary in their implementation of such policies, with a continuum of practice from soft to hard no-drop policies. In jurisdictions with soft, or flexible, no-drop policies, district attorneys may decline or drop misdemeanor-level cases when victims are unwilling to go forward. In jurisdictions with hard no-drop policies, victims who are unwilling to testify may be criminally sanctioned or arrested for failing to appear in court or for testifying untruthfully.
Advocates have supported such approaches because they remove the responsibility for how the case is prosecuted from the victim and place that burden with the prosecuting jurisdiction. In this way, the batterer cannot coerce the victim into withdrawing the charges. However, others have argued that by not treating victims as responsible for making decisions such approaches disempower them, compounding the powerlessness created by the batterer.
Prosecutorial Practices In Sexual Assault
Studies of rape prosecution have focused on the factors influencing prosecutorial decisions to charge or reject cases. About half of all rape cases are accepted by prosecutors, and studies have shown that the severity of the assault, the relationship between victim and perpetrator, sociodemographic variables (age, race, occupation), and the victim’s behavior (e.g., drug use, risk-taking) all affect prosecutorial (and judicial) decision making. For example, data have shown that women of color are significantly less likely to have their cases pursued by prosecutors than White women who are rape victims. With regard to the nature of the victim–perpetrator relationship, prosecutors declined to charge acquaintance rape cases at a significantly higher rate than stranger rape cases (and juries have shown much more leniency in the former than the latter cases, particularly in cases where force was limited to that required to complete the sexual act).
Increasing numbers of jurisdictions are developing cross-disciplinary collaborations for rape victims. For example, sexual assault nurse examiner programs provide on-call, 24 hours per day, nurse first response care for victims of sexual assault in either hospital or community settings. Preliminary data have indicated that these programs may improve prosecution rates for sexual assault, in addition to supporting victims’ psychological recovery.
Child Abuse Prosecution
Unlike prosecution of IPV or rape, prosecution of child abuse may be initiated through referrals not just from police, but also from child protection authorities. The potential communication barriers associated with the involvement of multiple systems or agencies in child abuse cases, in addition to concerns about childhood testimony, has led to the increasing popularity of multidisciplinary child abuse teams. These teams (often coordinated through children’s advocacy centers) conduct conjoint forensic interviews using trained interviewers, and collaborate on the investigation and prosecution of child abuse cases.
Similar to studies of sexual assault, research on child abuse prosecution has revealed variables predicting acceptance of child abuse cases for prosecution. Factors predicting acceptance have included the age of the child victim, severity and chronicity of the abuse (e.g., oral-genital evidence, force, duration), and availability of eyewitness or physical evidence.
- Cross, T. P., Walsh, W. A., Simone, M., & Jones, L. M. (2003). Prosecution of child abuse: A meta-analysis of rates of criminal justice decisions. Trauma, Violence, & Abuse, 4(4), 323–340.
- Frazier, P. A., & Haney, B. (1996). Sexual assault cases in the legal system: Police, prosecutor, and victim perspectives. Law and Human Behavior, 20(6), 607–628.
- Gewirtz, A., Miller, H., Weidner, R., & Zehm, K. (2006). Domestic violence cases involving children: Effects of an evidence-based prosecution approach. Violence and Victims, 21(2), 213–229.
- Koss, M. P., Bachar, K. J., Hopkins, C. Q., & Carlson, C. (2004). Expanding a community’s justice response to sex crimes through advocacy, prosecutorial, and public health collaboration: Introducing the RESTORE program. Journal of Interpersonal Violence, 19, 1435–1463.
- Rebovich, D. J. (1996). Prosecution response to domestic violence: Results of a survey of large jurisdictions. In E. S. Buzawa & C. G. Buzawa (Eds.), Do arrests and restraining orders work? (pp. 59–72). Thousand Oaks, CA: Sage.
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