No-drop prosecution of domestic violence: just good policy, or equal protection mandate?

• Author: Robbins, Kalyani

Last night I heard the screaming Loud voices behind the wall Another sleepless night for me It won't do no good to call The police Always come late If they come at all And when they arrive They say they can't interfere With domestic affairs Between a man and his wife And as they walk out the door The tears well up in her eyes Last night I heard the screaming Then a silence that chilled my soul I prayed that I was dreaming When I saw the ambulance in the road And the policeman said "I'm here to keep the peace Will the crowd disperse I think we all could use some sleep "(1) Domestic violence is a problem that must be dealt with for what it is: a criminal act. The only way to effectively diminish it is through the full force of the criminal justice system,(2) which must treat domestic violence the same as it treats crime by strangers. The purpose of this note is to argue that aggressive prosecution of domestic violence--at least to the same extent that other violent crimes are prosecuted--is mandated by the Equal Protection Clause of the Fourteenth Amendment.(3) Part I will examine the extent of the problems that pervade the criminal justice system, both historically and in contemporary dealings with domestic abuse. In Part II, I will explain the "no-drop policy," discuss its effectiveness and importance, address the arguments against it, and make some practical suggestions for its implementation. Part III will review the equal protection standards already extended to police protection in domestic violence cases in many jurisdictions. This protection, however, has yet to be extended to the prosecutorial stage, which limits its effectiveness. Consequently, in Part IV I will argue that the equal protection requirement that domestic violence victims receive the same police protection as victims of other crimes should be extended to the courtroom. Effective prosecution of these crimes, which is rare without a no-drop policy, is essential to providing the required equal police protection to domestic violence victims, and should therefore be mandated by the Constitution.

1. THE LEGAL SYSTEM'S INADEQUATE RESPONSE

   1. Privacy Is Not Worth It

      [I]t is an overgenerous assumption that the wife who has been beaten, poisoned or deserted is still on such terms of delicate good feeling with her spouse that her testimony must not be enforced lest the iridescent halo of peace be dispelled by the breath of disparaging testimony. And if there were, conceivably, any such peace, would it be a peace such as the law could desire to protect? Could it be any other peace than that which the tyrant secures for himself by oppression?(4) Marital peace and privacy have traditionally been the reasons asserted for leaving domestic violence alone, or at least for not compelling the victim to testify. Courts and prosecutors distinguish between public and private harm, label domestic violence as the latter, and then often refuse to push it through the legal system if the victim seems reluctant.(5) This can be done through the spousal testimonial privilege, or, in jurisdictions that have usable exceptions to this privilege and in cases where the couple is not legally married, by simply dropping the case at the victim's request. To do so is to send a message to both the victim and the perpetrator "that domestic violence is a private matter between the two of them and that the state does not care to intervene."(6) This creates a situation in which the victim must push the case forward with great effort for it to be prosecuted, as though the attack were a tort rather than a crime.(7) There is a basic assumption at work in the system that "the state should not intervene in domestic matters."(8)

      This attitude ignores the larger social costs of domestic violence, which involve, inter alia, the societal subordination of women.(9) Each time a man hits a woman and gets away with it, all women suffer, both from the risk of harm that has not been prevented, and from the retardation of the movement toward societal equality. Further, society as a whole suffers from violence that leaks into the public on a regular basis at schools, places of employment, and homes of those not otherwise involved. The marketplace of ideas, including those benefiting technology, academia, business, etc., suffers the loss of women who feel confined to their homes or who are otherwise unable to function in the workplace. Perhaps the most important impact of all occurs within the millions of "private" homes across the country. When the law does not govern the private sphere, male dominance and female subordination thrive.(10) Put simply, "[a] husband must no longer be allowed to shield himself from legal sanctions for violent crimes by invoking the fact that the crime was committed in the home."(11)

      The law's refusal to interfere with domestic violence is not just practically unsound, but also reflects those societal attitudes toward women,(12) that are most in need of change. Criminal laws establish social norms; they "are the rules by which we define what we stand for as a society."(13) By reviewing the historical treatment of women under law, we can see the context from which this attitude evolved, and how it has been gradually closeted (but not eradicated) with the advent of the women's movement. In early common law, women had no identity separate from their husbands.(14) Consequently, their interests were assumed to be identical.(15) This is why women were deemed incompetent to testify against their husbands under the common law rule that prevented self-interested parties from giving testimony.(16)

      The practice of wife beating was legally acceptable throughout most of history. In fact, it was not made illegal in every state until 1920.(17) In the eighteenth century, William Blackstone codified the right to wife beating in his authoritative commentaries on the common law.(18) He stated that because the husband "is to answer for [his wife's] misbehavior, the law thought it reasonable to intrust him with this power of restraining her, by domestic chastisement."(19) Although this tradition is no longer overtly endorsed, the modern law enforcement system is perpetuating Blackstone's notions by passively allowing such "domestic chastisement" to continue,(20) sometimes to the extent of serious injury. The persistence of these archaic social attitudes and negative stereotypes seriously weakens the impact of modem anti-violence laws, as most police, prosecutors, and courts continue to give domestic violence prosecution low priority.(21) The vehicle that has been used to transport these old notions to the present--an ideological Trojan horse, if you will--is the doctrine of family privacy. As such, the doctrine must be carefully reconsidered, and possibly rejected as overwhelmingly favoring men over women.(22)

   2. The Problem is Still Pervasive

      In many jurisdictions today, domestic violence is still not treated as a real crime.(23) Very few cases ever reach formal adjudication.(24) The legal system often fails to adequately respond to the pleas of domestic violence victims until they are seriously injured or killed.(25) This failure cuts across all levels of the legal system. This subsection will give examples of how police, prosecutors, judges, and even legislators have demonstrated a willingness to look the other way when it comes to spousal abuse.

      1. Police.

         A Kansas City, Missouri, study of homicides between domestic partners found that in many of the cases, the police had received domestic violence complaints and had been to the victims' homes at least five times before the victim was killed.(26) Police often use two different standards for probable cause in assault cases--one for regular assaults, and another, requiring much greater victim injury, for domestic violence cases.(27)

         Tracey Thurman's abuse at the hands of her husband continued long after she left him. She made numerous calls to the police asking for help, but received none. After breaking the windshield of Tracey's car while she was inside, in front of a police officer who had idly observed him screaming threats at her, Charles Thurman was convicted of breach of peace and granted a suspended sentence. Tracey later filed a complaint that Charles had threatened to shoot her, but the officer would not issue an order for Charles' arrest. One day, Charles showed up at Tracey's residence demanding to speak with her. She did not let him inside, and immediately called the police to report that he was there in violation of his probation. The officer dispatched to the scene failed to arrive for twenty-five minutes. Meanwhile, after about fifteen minutes, Tracey went outside to speak to Charles, and he began to repeatedly stab her in the chest, neck, and throat, which he was still doing when the officer arrived. Then, in front of the officer, he dropped the knife, kicked Tracey in the head, ran inside to grab their son, brought him out, threw him on top of his bloodied mother, and continued to pace and threaten her. He was not arrested until Tracey was on a Stretcher, and even then he continued to threaten her.(28)

         Ed Watson physically abused his wife, Nancy, until she filed for divorce. A few days before the divorce, he threatened her with a knife, causing her to run next door and call the police. The responding officer told her, "[I]f you ever call the police again, I will see to it that you are arrested and you'll never see those two kids again." Even after Ed beat Nancy with a flashlight to the point of hospitalization, and forced her son to eat his own vomit, the police took a report but refused to arrest him. Eventually, Ed came to the house with a gun and held Nancy and the children hostage for three days. Nancy called the police after he held the gun to her head and threatened to kill both her and himself. The arriving officers made a report, but refused to arrest him or to order him to leave. A month later, when...