In Domestic Abuse Cases, Upholding the Law May Proceed "With or Without the Victim"

When pandemic conditions ease up enough to start holding jury trials again, prosecutors in Shelby County, Tennessee, will be facing dozens of domestic abuse cases, which even in normal years comprise half of all violent crime.

One way to speed up this process, according to experts? Not relying on victims to testify.

Many cases of intimate partner violence never make it to court because the current or former abused spouse or partner will not testify. Casey Gwinn doesn’t blame them.

“You don't put this person under the power and control of another human being in the position to say, ‘Do you want to prosecute him?’ ‘Are you going to testify against him?’ ‘Are you going to press charges against him?’”

The former San Diego City Attorney says those are “stupid questions.”

Gwinn has been a driving force in the creation of Family Justice Centers nationwide, including the one in Memphis. He’s also an advocate for so-called evidence-based — or victimless — prosecution.

Gwinn doesn’t like the latter term, because there’s always a victim. But the point of this type of prosecution is to go after an offender regardless of whether or not the victim agrees to press charges or testify.

Gwinn says holding domestic abusers accountable for their crime is “the job of the criminal justice system, not the job of the victim.”

Pressing charges against a current or former partner can bring retribution in some cases, sometimes lethal.

Yet unless they’re severe, most domestic assaults are misdemeanors in Tennessee, which means many offenders spend a night or two in jail before being allowed to return home.

That’s why, Gwinn says, police must be trained to build all domestic violence cases assuming the victim will not testify: “That's going to be a fundamentally different investigation than if they come to the scene and say, ‘Tell me what happened. Sign this affidavit. Thank you very much, ma'am. Have a good day.’”

Gwinn wants to see police gather a lot more — and a lot more detailed — witness testimony, such as from medical professionals whose records from treating victims are admissible in court. He says children are present in more than half of all situations, so they should be interviewed.

Then there are neighbor witnesses whom Gwinn says “exist in 30 to 40 percent of these cases. They hear it, they see it. And if they didn't hear and see this incident, they heard and saw a prior incident within the statute of limitations.”

That’s important. Because while a single incident may be a misdemeanor, chronic or severe abuse can be charged as a felony, which brings stiffer penalties.

Victim advocates say police reports from domestic incidents have improved in recent years. And Gwinn knows that police are overburdened. In Memphis, as in other cities, half of all their investigations are domestic violence cases.

But Gwinn also blames “implicit misogyny” for longstanding attitudes, especially towards intimate partner violence, where the vast majority of victims are women. The misogyny runs so deep, says Gwinn, that even drunk driving victims get better treatment.

"Nobody ever asked the drunk driving victim if they want to press charges against the drunk driver,” says Gwinn. “Why don't we ask? Well, because drunk driving is a really serious crime.”

But facing your abuser isn’t as clear-cut as facing someone who’s crashed into your car, says Shelby County District Attorney Amy Weirich.

“You don’t know this person. You didn't love this person and are still in love with this person and have a family with this person.”

Weirich made reducing domestic violence a mission, but also knows it’s complicated. Not every victim wants to send an abusive partner to jail, she says. Others may just want the abuse to end, not the relationship.

But Weirich says her office represents the state, not victims. So occasionally, if a case is severe enough to prove beyond reasonable doubt, they try them without victims’ testimony or support.

“Our job and our responsibility is to uphold the law and to protect the public, that's a case that we're going to do what we can to put together — with or without the victim,” says Weirich.

It’s definitely harder without. The accused have a constitutional right to confront witnesses in court — unless they’re found to have intimidated witnesses, as offenders often try to do.

Nevertheless, eyewitnesses simply may not want to testify. Kids don’t want to speak out against a parent. Family members may feel loyal to an alleged offender. Neighbors may not want to get legally involved.

That’s all before prosecutors even get to the courtroom, says Weirich, where “juries, judges: They want to see the victim, they want to hear from the victim.”

Weirich does acknowledge the system still has a lot of prejudices to shed. She recalls a conversation with a veteran Memphis police officer at the ribbon cutting of the city’s Family Safety Center in 2012. He told her, “You know, when I started as a rookie cop, we didn't even respond to DV calls.”

DV — domestic violence — was considered a private family matter by a lot of police and politicians. That mentality didn’t really begin to change until the 1990s, says Darren Goods, who worked 35 years for the Memphis Police Department before becoming a deputy commissioner for the Department of Children’s Services late last year.

Goods admits, “As much as I hate to say this, but I think if you go back to the O. J. trial, that kind of opened everybody's eyes nationally and me personally, about just how serious domestic violence is and just how serious it could be.”

O. J. Simpson’s history of spousal abuse played a central role in his wife’s murder trial. For experts, it was pivotal to raising public awareness on what they’d been saying for years: Domestic abuse is a dangerous crime — not a private problem. The trial led to a historic spike in calls to hotlines and shelters. And it helped then-Senator Joe Biden get his Violence Against Women Act passed, which strengthened national domestic violence laws.

Goods says that in the 1990s, lawmakers finally “began to do what we should have been doing all along: making sure that we do all that we can to protect these victims."

There is still a long way to go, say victim advocates, but some see evidence-based prosecution as the next phase of that protection.