Taking a process-oriented approach to domestic violence prosecutions.

• Author: Long, Jennifer Gentile

INTRODUCTION

ALL PROSECUTORS ARE UNITED by the duty to pursue justice. (1) As experienced prosecutors know, pursuing justice means more than obtaining convictions. Prosecutors are responsible for conducting thorough and thoughtful investigations, making accurate charging decisions, aggressively and ethically litigating cases, safeguarding defendants' rights, and advocating for appropriate sentences that hold offenders accountable and keep communities safe. In domestic violence cases, achieving justice includes all of the duties just described as well as identifying and addressing the collateral consequences victims face as a result of domestic violence. Many savvy abusers recognize that the collateral consequences facing domestic violence victims are as strong a deterrent to their victims' cooperation in a prosecution as intimidation or physical force. Left unaddressed, these issues can devastate a victim and her family by leaving them unsupported and financially insecure long after a conviction is secured.

In its policy on domestic violence prosecutions, the National District Attorneys Association (NDAA) wrote: "[T]he encouragement, education, and support of victims of domestic violence partnered with thorough investigations, the utilization of physical evidence, and, expert testimony, when appropriate, during trial are the most efficacious means of resolving such cases." (2) This policy reinforces what experienced domestic violence prosecutors already understand: domestic violence cases are different than other criminal cases because of the intimate relationship between defendants and their victims. This intimate relationship transforms the normal assault case with an adversarial victim-assailant relationship into a much more serious case that involves complex and frightening choices for the victim about issues that are often life-threatening and always life-changing. Therefore, close attention must be paid to issues arising as a consequence of the assault. (3)

This focus on justice and caring for the victim on all levels--rather than a focus on the verdict itself is called the "process-oriented" approach. A process-oriented approach to domestic violence prosecutions is one that recognizes that a domestic violence incident and its related prosecutorial decisions uniquely impact the victim. The approach applies the following five principles of domestic violence prosecutions: (1) collaborate with advocates and agencies; (2) understand and explain the context of an issue; (3) assess lethality; (4) litigate the case without alienating the victim; and (5) resolve the case in order to balance victim safety and offender accountability.

COLLABORATE WITH ADVOCATES AND AGENCIES

Unlike a victim of a random crime, a domestic violence victim's involvement with the criminal justice system may put her (4) at risk of:

* losing her housing (e.g., if her abuser is the primary household wage-earner);

* losing her employment (e.g., if she repeatedly misses work in order to attend the numerous court appearances that may accompany the criminal and civil hearings related to her abuse);

* losing custody of her children (e.g., if the state feels she is unable to protect or provide for her children); * losing financial support for herself and her children (e.g., if her abuser loses his job once he is convicted or sent to prison);

* losing her immigration status (e.g., if she is unable to qualify for a visa under VAWA provisions); (5) and

* being prosecuted (e.g., if her attempts to protect herself or her children are not recognized as self-defense).

Prosecutors must identify and form relationships with community advocates and agencies to address and attempt to resolve the collateral problems domestic violence victims face as a result of their abuse. Prosecutors alone are not able to provide victims with the attention, advocacy, and resources required to address and resolve the victim's needs. By working with community advocates, prosecutors can help victims procure counseling, create a safety plan, obtain assistance with childcare, secure or maintain housing, and receive vocational training or assistance with a current employer.

Community advocates can also help safeguard a victim's privacy. Commonly, defense attorneys seek access to victims' medical and psychological history. In addition to the embarrassment victims suffer when this information is exposed, the mere threat of exposure often is enough to dissuade a victim's cooperation. Depending upon the laws of the jurisdiction where the case is pending, the prosecutor may not have standing to protect the victim against defense attempts to access this history. In these jurisdictions, community legal advocates are critical to protecting the victim's privacy. (6) Supported victims--ones whose concerns are being addressed--are more likely to cooperate in the prosecution of their abusers, since many of the risks and fears that normally would act as obstacles to their participation will be erased upon the prosecutor's collaboration with other support agencies. Providing victims with the counsel and support they need to deal with their abuse helps ensure offender accountability by increasing the number of victims who are able and willing to cooperate in their abuser's prosecution. When victims are empowered through education and support and offenders are prosecuted in a system that recognizes victims' needs, the chances of re-victimization should decrease. As a result, the entire community becomes safer because this process creates informed...