Court Ruling May Impact Domestic Violence Cases
01 April 2004
The Supreme Court recently affirmed the right of victims of domestic violence to exercise control over their own cases.
On May 8, through a unanimous ruling in Crawford v. Washington, the Supreme Court affirmed a defendant's right to face and question accusers.
More subtly, it also affirmed the power of victims of domestic violence to
exercise control over their own cases -- specifically over whether to pursue
What are the circumstances of Crawford v. Washington? Michael Crawford
pleaded self-defense in stabbing a man he believed had attempted to rape
his wife. His wife was present during the stabbing and at one point made
a taped statement to the police in which she said that the victim may not
have been armed. But, she invoked marital privilege to keep from testifying
against her husband at trial. In her absence, the judge accepted the taped
statement she'd made to the police as "reliable," even though the tape precluded
cross-examination by the defense. Crawford was found guilty.
In his opinion on the case, Supreme Justice Scalia stated: "Dispensing with
confrontation because testimony is obviously reliable is akin to dispensing
with jury trial because a defendant is obviously guilty. This is not what
the Sixth Amendment prescribes."
(The Sixth Amendment reads, in part, "In all criminal prosecutions, the accused
shall enjoy the right ... to be confronted with the witnesses against him.")
Crawford v. Washington did not involve domestic violence
but the Supreme Court decision bears directly on such cases. Rules of procedure
vary from state to state but, commonly, prosecutors have no obligation to
produce a witness at trial. Instead, the judge can admit evidence such as
statements made to the police by witnesses. In doing so, prosecutors often
cite Ohio v. Roberts (1980), which found that a statement from an unavailable witness could be allowed if it was deemed trustworthy.
This prosecutorial strategy is particularly significant in domestic violence cases because victims are often unwilling to testify
against "loved ones." In most crimes, it is unusual for a prosecution to
proceed when an uncooperative victim wants to drop the charges. In domestic
violence, such prosecutions occur regularly.
The reason is largely political. In the last two decades, a blast of outrage
has been directed at the legal system for ignoring or trivializing complaints
of domestic violence. The legal profession has been admonished to show sensitivity,
not disdain, toward women traumatized by domestic violence who are in need
of support. The system received a much-needed overhaul but, in the process,
another group of women was injured: the victims of domestic violence who
do not wish to press charges.
For example, many police departments have instituted mandatory arrest policies
that remove police discretion from domestic violence cases. But they also
remove the victim's discretion. This is a bitter irony: In an attempt to
protect one class of victims, another class has been further injured.
By requiring witnesses to appear in court in order for a case to proceed, Crawford v. Washington
may open the door to a more equitable solution. Domestic violence victims
who wish to press charges can benefit from increased sensitivity while those
who decline to press charges can exercise control by refusing to cooperate
with authorities. The wishes of the victim may once again become legally
That's how it should be. Victims should always have the final say over whether
to prosecute. This control is especially important in cases that involve
intimate relationships such as husband and wife, parent and child. A legal
system that strips domestic violence victims of choice is committing an act
of violence against them that may be more damaging than the original crime.
The legal disrespect of a victim's right to say "no" to prosecution springs
from a view of victimhood that has become popular over the last decades.
In the '80s and '90s, mainstream feminism sold a simplistic theory of domestic
violence and of its victims -- specifically, women. According to this dogma,
there is only one valid solution to the complex social phenomenon of domestic
violence: the woman should leave the relationship and press charges.
Reality frowns on this dogma. Many intelligent women choose to stay, and
some do so for good reason. For example, a woman might want to help her husband
and the father of her children through a rehabilitation process that will
eliminate the "cause" of his violence.
To maintain the dogma of "one solution," however, women who stay or do not
press charges have been portrayed as helpless victims who cannot recognize
their own interests. In the '90s, it became popular within feminism to speak
of the Stockholm Syndrome in connection with domestic violence victims. This
refers to the traumatic bonding that can occur between a captor and a captive,
an abuser and a victim. In short, women who stayed were said to be psychologically
damaged so that even their clearly stated wishes should be disregarded...for
their own good, of course.
The Stockholm Syndrome may apply to extreme cases of domestic violence. But
the idea of traumatic bonding has been embedded in the everyday laws and
procedures that define the status of victims of a common crime. Or, at least,
it did define that status until Crawford v. Washington.
If the Supreme Court decision disallows hearsay evidence across the broad
horizon of criminal law, then defense attorney Dana Forman may be correct
in considering it the most important Supreme Court ruling since Miranda in 1966. But the decision is not merely defense-friendly, as it has been portrayed.
It may also be a victory for a significant class of victims; namely, victims
of domestic violence who choose not to press charges.
Wendy McElroy is the editor of ifeminists.com
and a research fellow for The Independent Institute in Oakland, Calif. Her
new book is Liberty for Women: Freedom and Feminism in the 21st Century.
Reprinted with permission of ifeminists.com.
Email Wendy McElroy
this Article to a Friend