Why Victims Need an Attorney—Even When They Can’t Drop the Case

How often do we assume a victim controls the trajectory of a criminal case? In reality, although a victim may initiate the criminal complaint, their control ends there. Once the complaint is in the hands of the prosecuting body, whether it’s the police, district attorney, city solicitor, or attorney general, a victim can no longer just “drop the case.” In fact, while prosecutors will seek a victim’s input—and may in fact need their cooperation to proceed—a victim cannot unilaterally and independently end a case. Why is that? And what effect does this have on the criminal process?

Many prosecutors will tell you that the inability of a victim to drop a case is for their own protection. Generally speaking, this is in cases of domestic violence whereby a victim may feel pressured to drop the case by the perpetrator. In many instances, a victim will call the police while being assaulted by their partner. However, by the time the case reaches a courtroom, the parties will have reconciled. Or a defendant will have appealed to a victim’s heartstrings to try and convince her that he has changed. A victim will then explain to a prosecutor that she no longer wishes to proceed only to be told that she cannot dictate a dismissal. The prosecutor will explain that their duty is not just to the victim, but to the broader safety of the community—and if they believe the defendant poses a continued threat, they are obligated to pursue the case. This approach, while well-intentioned, raises complex and often troubling concerns.

Problems With This Prosecutorial Approach

First, it infantilizes the victim. There are many reasons why a victim may no longer wish to proceed with a case. The most obvious reason, as stated above, is that a victim could have reconciled with the defendant. Why should a governmental agency stand in the way of that reconciliation? In most cases of domestic violence, not only does the prosecuting office have ultimate say in the case, but they also request the court to impose a “no-contact order” between the parties—again for the protection of the victim—even when a victim may not wish such an order. Weeks, months, even years may pass before a case goes to trial, and during that time, an independent state agency and court is dictating the relationship between two consenting adults. At what point do we trust adults to make their own decisions for personal safety and romantic relationships?

Second, it assumes a “victim” is in fact a victim. In many cases, an alleged “victim” never contacted the police or reported abuse. Rather, a third party initiated the complaint. Even in these cases, where domestic violence is alleged, a mandatory no-contact order is issued. The impact is substantial. If the parties were living together, one must leave the home. Childcare, finances, transportation—the list goes on and on as to the impact on both parties based solely on a third-party assumption. If a victim chooses not to participate or testify, then they themselves can be arrested and held in contempt of court.

Finally, and most often in non-domestic violence cases, it interferes with the parties’ ability to resolve the conflict through their own means. Often, a corresponding civil case may be pending, with attorneys for both victim and perpetrators negotiating a settlement that is satisfactory to both parties. However, the prosecuting agency is not a party to these negotiations, and as such may refuse to dismiss a case regardless of the terms of the settlement agreement.  A victim may then be dragged through a criminal trial—often with their own mental health, history, and actions called into question—when in fact, they were desirous of a resolution that both parties agreed to. How can a prosecutor claim to be “protecting” a victim or even society at large, by forcing a victim to unnecessarily take the stand and relive a potentially traumatic experience? What greater good does this serve?

The flip side is that prosecutors can also dismiss, amend and/or negotiate a plea deal against the will of a victim. There are again many reasons why a prosecuting agency may do this, including expediency, evidentiary issues, or to wrap several cases together. Although almost every prosecutor will seek a victim’s input, ultimately it is the prosecutor’s prerogative to dismiss, amend, and/or negotiate the terms of a plea. And while a victim may address the court regarding their wishes, if a plea deal has been reached, the terms are generally already established. In many cases where there is a companion civil or family court case, the ability of a prosecutor to unilaterally dismiss, amend, or plead a case may have an even greater impact on a victim.

A Victim’s Options For Being Heard

What can victims do to ensure their voices are heard? The best course is for a victim to utilize the victim advocates both in court and a prosecutor’s office. However, depending on the severity of the case, a victim may also seek their own counsel who can act as an intermediary between the parties and the court. A court too often relies solely upon a prosecutor’s representations of a victim’s wishes or version of events, when the reality is that an individual prosecutor may not have even spoken with a victim during the early negotiations of a case. They rely upon their advocates to speak with victims, and then just like in the childhood game of telephone, the information they relay to the court may or may not be accurate. However, a victim’s attorney will speak directly to the prosecutor and defense attorneys, and in many jurisdictions, they can also participate in bench and chambers’ conferences. While a prosecutor (and court) still has the ultimate say, at least the information being provided is accurate and truly reflective of a victim’s wishes.