On Prosecutors Having Survivors of Assault Arrested: It’s Not a Zero-Sum Game


Earlier this week, writer Amanda Marcotte wrote a piece for Slate about a recent court case in which a woman who had suffered domestic violence and sexual assault was arrested and jailed for missing scheduled meetings with prosecutors.

Calling the problem of non-cooperation “endemic” in domestic violence (DV) cases, Marcotte applauds the prosecutor’s decision. It is, she says, “a sad, unavoidable truth” that granting DV complainants autonomy in deciding how and whether to cooperate with prosecutors “means putting some very bad men back out on the streets,” and we, as a society, have to “decide what’s more important to us.” As Marcotte presents it, the issue is straightforward: In order to get tough on crime, we have to be willing to get tough on victims.

Many feminists have published cogent rebuttals to Marcotte’s piece in the two days since it appeared. The blogger stavvers wrote an eloquent post declaring that any approach to sexual violence prosecution that does not unconditionally affirm the choices of survivors “is just rape culture, rebranded.” A Tumblr post by Nerd Grrrl Island drew out the victim-blaming implications in the piece. Others, notably Lauren Chief Elk, took to Twitter to push back on what they saw as Marcotte’s blanket support for the criminal justice system.

All of these criticisms have merit, and all raise important issues that Marcotte should grapple with. But the bottom line is that Marcotte’s essay fails to make a coherent case for the policies she embraces.

In response to her critics, Marcotte has said that her concern in this piece was not with the validity of criticisms of the criminal justice system or with the morality of re-victimizing the victims of crimes of coercion. Her focus, she says, is specifically and exclusively on the conflict between respecting victims and successfully prosecuting offenders.

But even granting that narrow focus, even assuming that the larger issues can be disentangled from her specific argument, Marcotte’s position—that coercing testimony from survivors of violence means more victims testifying, which means more offenders jailed, which means less DV and sexual assault—is essentially undefended. It’s an abstract thought experiment, not a policy analysis, and as it turns out, the conflict she sees is largely nonexistent in the real world.

A prosecutor’s decision to jail a complainant in order to compel testimony is not made in a vacuum, and it’s one that carries criminal justice costs of its own. The state may succeed in forcing testimony by such tactics, or it may not. That testimony may be helpful to the prosecution, or it may not. It may result in a guilty verdict, or it may not. The idea that jailing a reluctant complainant will invariably improve the chances of convicting the offender is unsupported by evidence—in fact, such a move may well have the opposite effect, by inducing a complainant to flee, or recant, or testify unconvincingly.

And even if the testimony is obtained, and is effective, the practice of compelling testimony may dissuade other victims (or that victim in a subsequent case, possibly with the same perpetrator) from coming forward. That risk is highest among survivors with reason to fear the criminal justice system—the poor, the homeless, the undocumented, the addicted, sex workers, LGBT people, people with disabilities, and so on. These communities are already disproportionately victimized by sexual assault and domestic violence, and coercive prosecutorial tactics that victimize them again are completely antithetical to curbing such violence.

It must also be recognized that rapists and abusers understand the power of the state and how it can be wielded against victims, and they use this knowledge to facilitate their crimes. Perpetrators of domestic violence frequently threaten to turn their victims over to immigration officials, child protective services, or other authorities. The more widespread the judicial coercion of victim testimony becomes, the more the threat of incarceration by frustrated prosecutors will be deployed by abusers to perpetuate their own violence.

For all of these reasons, prosecutors and judges rarely resort to arresting assault and DV survivors in order to compel their appearance in court. (One law journal article on the subject found anecdotally that prosecutorial coercion of uncooperative victims’ testimony was used far more often to justify dropping charges than to secure convictions.) The practice is strongly discouraged by the U.S. Department of Justice, and agencies participating in DV projects funded under the Violence Against Women Act are urged to embrace “procedures that provide victims with the opportunity to make an informed choice about whether to testify” instead.

Similarly, a model framework for domestic violence prosecution recently promulgated by domestic violence experts and adopted in St. Paul, Minnesota, declares that the use of coerced complainant testimony is frequently “counterproductive, increasing risk to victims and decreasing offender accountability overall.” The framework imposes nearly a dozen stringent restrictions on the use of the tactic, declaring that it should only be used where necessary to prevent “serious or lethal harm” to the victim herself.

In her article, Marcotte frames the prosecution of domestic violence as a zero-sum game, in which solicitude for the rights and concerns of the victim must be weighed against the state’s interest in punishing perpetrators. In reality, the opposite is true: The project of holding rapists and abusers accountable for their crimes is advanced, not impeded, by respect for victims.

When police, prosecutors, and judges act with respect for the autonomy of those whose autonomy has been violated by domestic violence and sexual assault, survivors are more likely to report, more willing to cooperate with the legal system, and more able to advocate for their own interest in securing justice (however justice may be defined). This fact is one of feminist legal theory’s great contributions to the fight against sexual violence, and it is one of the great engines behind the victories we have begun to see in curtailing such crimes.

Marcotte writes that there is “no silver bullet … that will get all victims to see things the way prosecutors want them to.” But seeing things the ways prosecutors want us to is not an obligation that DV and sexual assault victims—or any of us—have. Most progressives understand that, as do most feminists, many prosecutors, and the Department of Justice itself. It’s a shame that Marcotte does not.

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  • cjvg

    There is no other crime for which the VICTIM of the crime gets arrested for NOT pressing charges!

    Apparently women are still possessions, either of the state or the federal government, since damages done to women’s bodies are treated in a way were the state can subsume the position of the victim that suffered the damages.

    No other crime that results in damages to you, can results in you (the sufferer of said damages) being arrested for not making a legal complaint on the damages you suffer.

    I have heard of this being used to compel a third party witness that is unwilling to speak out for the victims benefit. In such a case it makes sense since that refusal is doing added harm (in a sense the bystander is then becoming a co-conspirator with the criminal defendant by concealing his/her crime) to a victim

  • jruwaldt

    I’m not sure about victims, but aren’t material witnesses sometimes held to insure they testify?

    • Joe.02

      I don’t think this happens much at all and if the witness is the victim, not only is it a special case, it would be an even smaller subset at most of a small group. And, holding material witnesses is not w/o its problems overall.

  • TheBrett

    The blogger stavvers wrote an eloquent post declaring
    that any approach to sexual violence prosecution that does not
    unconditionally affirm the choices of survivors “is just rape culture,
    rebranded.”

    She said that the only thing that matters in the case of sexual violence is the comfort of the survivor, which is garbage. As she herself admits, rapists usually don’t stop at one victim – they have a pattern of behavior, and the reason why they continue raping is because victims don’t speak out (the court system also tends to fail them, but they ultimately can’t prosecute a crime like this if people don’t report it).

    Like it or not, the justice system is also about preventing crimes, not just consoling victims.

    • Shan

      ” they ultimately can’t prosecute a crime like this if people don’t report it).”

      DV and sexual assault are already wildly under-reported. And I don’t see arresting victims for non-cooperation with the prosecution as a very good way to increase reporting of these crimes. I agree with the author here in that it would have exactly the opposite effect.

      • TheBrett

        I don’t agree with arresting them over it either – no one should ultimately be forced to testify against their will. I was just reacting to the idea that the victim’s comfort is the only priority in rape cases, because it’s not.

    • lady_black

      This has nothing to do with reporting a crime. You cannot force people to report crimes. This has to do with the abuse of material witness laws that were never intended to be used against victims of crimes.

    • cjvg

      About 1 out of 4 reported rapes leads to an arrest.
      About 9 out of every 100 rapes get actually prosecuted
      About 1 out of 4 rape arrests leads to a felony conviction and incarceration.
      Plenty of rape kits all over this country in every jurisdiction languish untested for decades in the evidence room.
      ( most recent available Justice Department data, using an average of the five most recent years when available)

      The United States like many other countries has an very ugly history were the crime of rape is concerned. American society and their legal system has a pervasive habit of prosecuting a far greater percentage of theft, murder, fraud or basically any other crime then rape/sexual assault crimes
      Barring circumstances where a rape is especially heinous and involves much brutality and irreparable physical harm to the victim, our legal system routinely punishes thieves etc. more harshly than any old rapists (even those involving children or young teens).
      Rape victims are also routinely subjected to shaming and blaming for a crime of which they are the victim. This goes on even the highest level of our “justice system, which also explains why rape is the least reported of all crimes.
      Why would any victim (woman or child) bother to call police when studies show that victims are often blamed for the criminals actions?

      As long as this is still the case, never mind jailing victims, how about

      • Mindy McIndy

        Those statistics match my personal experience. The first time I was sexually assaulted, I told my parents and they alerted the police. I knew my attacker. You know what they did? A big fat nothing. So the future times I was assaulted, I told no one. Why? Because I knew the police would do nothing, and because I didn’t want my brother or father to end up in jail for beating and/or killing my attacker.

    • http://plumstchili.blogspot.com/ Plum Dumpling

      Better talk to SCOTUS about that.
      http://www.nytimes.com/2005/06/28/politics/28scotus.html?_r=0

      Not enough of a duty to protect to be worth prosecuting victims.

      • JamieHaman

        Thank you for that link. Infuriating to know that after all these years this is how worthless that restraining order still is.

        • http://plumstchili.blogspot.com/ Plum Dumpling

          The Police are worthless. Call them and you stand a good chance of them shooting you.

  • noddy

    Why is she not wanting to prosecute? Is it because she’s afraid, has been threatened by him, because he has threatened the lives of her children, family? It has been my experience that is the reason.

    How does not prosecuting move this forward? It seems to me if that’s the reason, then she is still being abused and not prosecuting is saying we’ll leave it for the folks with the body bag. And isn’t that what has been going on so far, ignoring women when they raise the alarm, until it’s too late.

    • http://matthewjudebrown.com/ Morven

      In this case, the woman is HOMELESS and has missed scheduled meetings with prosecutors, probably because SHE IS HOMELESS.

      So, naturally, prosecutors threaten her rather than help her. Lovely stuff.

      • noddy

        I was speaking generally, not about this woman. The issue. She may also need protection from him. As long as she doesn’t get a record there may be reason in some instances, where there is no other way to protect her. Bad, but the only choice.

        • TS_1

          Who do you think might provide this protection – cause it won’t be the prosecutor, the judge or the police? Under NO explanation can logic explain why a victim of a crime should be jailed.

        • http://studentactivism.net Angus Johnston

          Noddy, I’ve never heard of a DV complainant being arrested as a way of providing for her short-term safety. That’s what shelters are for.

          As I said in the piece, there are situations in which a prosecutor may compel testimony from a DV victim out of fear that the perpetrator may re-offend if released, but in those situations the issue is the complainant’s long-term safety, not an immediate crisis.

          • colleen2

            You failed to answer her question. Allow me to repeat it: “How does not prosecuting move this forward?”
            or, to rephrase, “”How do you intend to hold rapists responsible for their crimes if we cannot even prosecute the few times a rape case actually makes it into a court room? Please understand that we live in a country where 1/3 of the women are raped or sexually harassed during our life times. At some point are going to have to stop making excuses and start holding rapists responsible.

          • http://studentactivism.net Angus Johnston

            Colleen, the question is whether aggressive coercion of DV and rape survivors has a net effect of enhancing or degrading prosecution overall, and as I said in the piece it’s not at all clear that the answer is the former.

            You can’t just look at one case in isolation and say that because holding a complainant’s feet to the fire might help, you have to do it. You have to look—again, as I said in the piece—at potential chilling effects on other prosecutions.

            Sometimes getting tough gets the intended results. Sometimes the results are the opposite of what’s intended.

          • colleen2

            I’m pretty sure I y had quite a different question than the one this response answers

          • http://studentactivism.net Angus Johnston

            Feel free to rephrase, then. I’m all ears.

      • Joe.02

        I would not assume what happened here. If she doesn’t have the means, by all means provide her with carfare and the like to enable her to get to the meetings. Give her a disposable phone to ease contact etc. We need more data to know what happened and that they did not “help her” in any way.

      • feloniousgrammar

        I was just going to say that the prosecutors should not make demands on victims when the state can’t provide them with safety. The state has had a long time to learn how to prosecute domestic violence and rape, it’s not the victim’s problem that the state has been so ineffective.

  • Alanna

    I don’t think that punishing survivors is a good policy. Nevertheless, it is still important to remember that prosecutors aren’t survivors’ lawyers– they’re the public’s. If prosecutors only pursued cases when the survivor agreed, there would be hardly any DV convictions.

    • http://studentactivism.net Angus Johnston

      I’d like to see statistics on this, but my impression is that non-cooperation by victims is less common than you think.

      You bring up an important point though, and it’s one I wish I’d had space to discuss in the piece — the fact that prosecutors don’t represent survivors. Increasingly, jurisdictions and outside organizations are making victims’ advocates available to survivors — attorneys or other advocates who DO represent them, and who are responsible only for advocating their interests. Evidence shows that providing such advocates has a very positive effect on outcomes in these cases — not just in terms of conviction rates, but also in terms of quality of life for survivors.

  • expect_resistance

    I usually agree with Amanda Marcotte but disagree with her this time. I think she is engaging in victim blaming.

    I really like what Nerd Grrrl Island said about victim blaming, “And trust me, victims are blamed plenty. We are blamed for what we wore, what we drank, how we flirted, how we didn’t fight back, how we didn’t contact the police, how we never prosecuted. In a sentence, you squarely place all the blame on us if our rapist attacks someone else. Did you for a second realize how harmful that might be to a victim? You follow that up with a vivid and triggering sentence, saying it’s better prosecutors force us to testify. Even, you would argue, if that includes putting us in jail.”

    The rights of the victims of sexual and domestic violence need to be respected. We need to do what’s right for them and not use the threat of incarceration for what the criminal justice system calls non-cooperation.