Victimless Prosecution of Domestic Violence in the Wake of Crawford V. Washington

By Fulkerson, Andrew; Patterson, Shelly L. | Forum on Public Policy: A Journal of the Oxford Round Table, Fall 2006 | Go to article overview

Victimless Prosecution of Domestic Violence in the Wake of Crawford V. Washington


Fulkerson, Andrew, Patterson, Shelly L., Forum on Public Policy: A Journal of the Oxford Round Table


Introduction

Domestic violence is unquestionably a massive social problem in American society. The United States Department of Justice has described domestic violence as the most common but least reported crime in America. (1) Because of the complex interpersonal relationships between victims and offenders, domestic violence cases include the unique phenomenon of victims who are unwilling to cooperate in the prosecution of offenders. In the past, when a victim refused to cooperate the prosecution would either no bring charges or request that pending charges be dismissed. Prosecuting attorneys then began pursuing criminal charges even if the victims were unwilling to testify. This paper will discuss the practice of "victimless prosecution" and the impact of Crawford v. Washington (2004) where the U.S. Supreme Court ruled that the admission of certain statements by victims into evidence violates the 6th Amendment Confrontation Clause unless the defendant has the opportunity to cross-examine the victim.

Domestic Violence History

Evidence suggesting domestic violence dates back 130,000 years to the Neanderthals. (2) As recent as 1824, the Supreme Court justified domestic violence in the case of Bradley v. State, where the court ruled that a husband was allowed to "use salutary restraints in every case of a wife's misbehavior, without being subjected to vexatious prosecutions resulting in mutual discredit and shame of all parties concerned (p. 156)." (3) It was not until 1882 when Maryland became the first state to outlaw wife beating. When finally criminalized, a charge of domestic assault carried a punishment of 40 lashes or a year in jail. (4)

In the 1970's, almost 90 years after the first law making domestic assault a crime, grass roots political pressure increased to employ harsher domestic violence laws such as stricter arrest policies. (5) Arrest policy reform would eventually develop into policies that would require police to respond to family violence in an aggressive manner. (6) Despite many laws which had been enacted to protect victims of domestic violence and police having made greater reforms in responding to domestic violence than any other part of the criminal justice system, by the 1990's the number of arrests for domestic assault offenses continued to escalate and domestic violence remained a serious issue. (7)

However, the U.S. Department of Justice, reported that the rate of violence against females by intimates fell 49% from 1993 to 2001, and violence against males by intimates fell 42% for the same period. Also, the number of females killed by intimates fell 22% from 1976 to 2000. These figures could be read to suggest that systemic changes in the way the criminal justice system views domestic violence has had a positive impact on this serious social problem. But even this decreased level of violence is unacceptably high. In 2001, nearly 600,000 women were victims of domestic violence and in 2000 there were 1,247 women killed by intimate partners. (8)

Impact upon Families and Communities

Domestic violence not only affects those abused, but witnesses, family members, co-workers, friends, and the community at large. Children who witness domestic violence are victims themselves and growing up amidst violence predisposes them to a multitude of social and physical problems. (9) Constant exposure to violence in the home and abusive role models teaches these children that violence is a normal way of life and places them at risk of becoming society's next generation of victims and abusers. (10)

It may be perplexing to outside observers, who wonder why a woman would stay with a man who beats her. Despite repeated assaults, which can include trips to the emergency room, serious physical injury, alienation from family and friends, deteriorating self-esteem, children who live in fear, repeated calls for police protection, and threats of death, many women remain with the men who abuse them. …

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