Prosecution of a Domestic Violence Crime: (Illinois)

What is the Role of Prosecution in Criminal Domestic Violence Cases?
Because of the seriousness of Domestic Violence cases in the Criminal Justice system, it is very important that these cases be prosecuted vigorously, as well as sensitively. It is important that the Prosecutor in the State's Attorney's office remember that domestic violence is a criminal behavior and to respond to it as such. It is helpful for State's Attorney's offices to review any office policies that may drop domestic violence cases to a lower priority than offenses between strangers.

When the Criminal Justice system works effectively, the Abuser knows that his continued violence will elicit increasingly severe sanctions, so there will be a deterrent effect. The Illinois Domestic Violence Act directly addresses the intended aggressive response of the prosecutorial community. This is most likely to happen when the Criminal Justice System enacts a consistent, aggressive, and coordinated effort to respond to the crime in their community.

The Illinois Domestic Violence Act calls upon the Criminal Justice system to respond to the needs of Victims through the Purposes Section outlined at the beginning of the Act. That Section suggests that there should be vigorous enforcement and prosecution policies regarding the crime of domestic violence. Specifically, the Act states that the system should:

• Recognize that Domestic Violence is a serious crime...(which) promotes a pattern of escalating violence...and creates an emotional atmosphere that is not conducive to healthy childhood development;
• Recognize Domestic Violence against high-risk adults with disabilities;
• Recognize that the legal system has ineffectively dealt with family violence in the past, allowing Abusers to escape effective prosecution or financial liability, and has not adequately acknowledged the criminal nature of Domestic Violence; that, although many laws have changed, in practice there is still widespread failure to appropriately protect and assist Victims;
• Support the efforts of Victims of Domestic Violence to avoid further abuse and, when necessary, reduce the Abuser's access to the Victim and address any related issues of child custody and economic support, so that Victims are not trapped in abusive situations by fear of retaliation, loss of a child, financial dependence, or loss of accessible housing or services;
• Clarify the responsibilities and support the efforts of Law Enforcement Officers; and
• Expand the Civil and Criminal Remedies for Victims of Domestic Violence including, when necessary, the remedies which affect physical separation of the parties to prevent further abuse.
  
  Should the State's Attorney Office have a written Domestic Violence Protocol detailing what the Office Policy is?
  
• To assure consistency, it is suggested that a State's Attorney's Domestic Violence Protocol be in writing and specify the framework for deciding how to handle Domestic Violence cases in the office. Many Illinois counties have firm, written policies in place and are willing to share their expertise with other State's Attorneys. A general Domestic Violence Protocol for State's Attorney's Offices was suggested through an Illinois Criminal Justice System's committee in 1995. Check with your local Illinois State's Attorney's office or contact the Illinois Coalition Against Domestic Violence to see a copy.
  
  What are Some of the better DV Policies regarding Prosecution?
  
• Since each county faces unique criminal occurrences, no one policy of handling Domestic Violence cases is in effect in Illinois. Many smaller counties have one State's Attorney and one part-time Assistant State's Attorney to handle all prosecutions. In these counties, it is likely that the Assistant will handle many of the Domestic Violence cases. Large counties may assign Domestic Violence cases to Prosecutors in a Domestic Violence Unit. Having a DV Unit or a particular Assistant State's Attorney assigned to all Domestic Violence cases is preferable because it allows the Prosecutor(s) to develop expertise in this area of the law, as well as follow a consistent county policy for prosecution.
  
• Experience in Illinois, as well as other states, has shown that it is desirable for one Attorney to handle a case from its inception, if possible. This fosters a trust between the Victim and Prosecutor and helps to insure that the facts of the individual case are clear to the Prosecutor handling it. Whatever the arrangement, it is recommended that those Prosecutors dealing with Domestic Violence adopt a uniform policy of processing these crimes and that such a Policy take full advantage of the Illinois Domestic Violence Act.
  
  Can Domestic Abuse Advocates from DV Programs be helpful to Victims during Prosecution?
  
• The State's Attorneys who become familiar with Domestic Violence Programs in their area will learn that the Programs' Domestic Abuse Advocates can provide invaluable assistance. The Domestic Abuse Advocates are advocates who assist Victims of Domestic Violence in their efforts to obtain legal remedies, including Orders of Protection or criminal prosecution. Working in cooperation with the Domestic Abuse Advocates from DV Programs can greatly enhance the State's Attorney's efforts.
  
• It is important to keep in mind, however, that the Advocates are not substitutes for State's Attorneys. The Domestic Abuse Advocates are a tremendous support to the Victim, helping her recall details and gathering evidence; accompanying the Victim to court; and explaining the system to her. According to 750 ILCS 60/205, Domestic Abuse Advocates are now allowed to sit at the counsel table and confer with the Victim with the Court's approval. They can also assist the Victim with the preparation of the Order of Protection. In that capacity, it is not considered the unauthorized practice of law.
  Domestic Violence Programs are an excellent source of counseling and support for the Domestic Violence Victim. However, a few Victims may be reluctant to avail themselves of such services. It is important that State's Attorneys not make such services a requirement of court intervention policies, though referral to those services can be a benefit to Victims unaware of their existence.
  
  
  What is "Prosecution Without the Cooperation of the Victim Policy" or a "No Drop Policy"?
• When a Victim turns to the police and others in the criminal justice system, it is usually because she is desperate. Because Victims are frequently intimidated or coerced by the Abusers in requesting that criminal charges be dropped, the State's Attorney's office should implement a Domestic Violence Protocol Policy that limits the victim's responsibility for bringing the charges.
  
• Studies have substantiated that Prosecutorial attitudes about domestic violence crimes affect Victim cooperation with the process. Vigorous prosecution policies show the Victims that, indeed, the criminal justice system in the community will take measures to keep her safe, plus will put pressure on the Abuser to stop the abusive behavior.
  
• The State's Attorney should always sign the Criminal Complaint; otherwise, the Victim will become a target for the Abuser who is attempting to get the charges dropped. The State's Attorney should explain to the Victim that the abuse is a crime, and it is the duty of the State's Attorney to prosecute, not the Victim. The Prosecution should consider sending a letter to the Victim which states that the State's Attorney's office has the power to drop the charges, not the Victim. This letter has the multiple purposes of protecting the Victim from further intimidation from the Abuser for her to drop charges, as well as relating a strong Pro-Prosecution Policy to the Victim, Abuser and community at large.
  
• If a county does not have a Policy of State's Attorneys signing complaints, and Victims are allowed to drop charges, certain procedures should take place to insure Victim safety. For example, if a Victim requests that charges be dropped, the State's Attorney should talk to the Victim to determine the reason for the request, present available options, and encourage prosecution. (Victims may have been coerced by the Abuser; they may be unaware of sentencing guidelines fearing either too harsh or too lenient a sentence; or, they may be in the "honeymoon phase" of Domestic Violence and believe the abuse will cease.) Domestic Abuse Advocates at dv programs are a good support system for the State's Attorney faced with a reluctant witness at this stage.
  
• If a Victim fails to appear in Court, the State's Attorney should request a continuance and make every effort to ascertain her whereabouts and safety.
  
• With a strong prosecutorial stance, the State's Attorney's Office can be a deterrent against Domestic Violence.
  
  
  How Does it Benefit a Victim to Cooperate with Criminal Prosecution of the Abuser?
  Studies have shown that:
  
• A Victim that calls the police is safer than one who does not.
  
• A prompt and severe response to the crime of domestic violence is the most effective means in insuring that it does not occur again.
  
• Settlement of the case without a trial is higher if the Abuser sees that the Victim will be testifying in Court.
  
• Once the Abuser hears that a Victim is willing to tell the Court about the abuse at a hearing, many Abusers settle the case because they know the truth will come out. At that point, the Prosecutor may enter into plea negotiations with the Abuser, and the Victim will not have to go to Court.
  
  
  Why Might a Victim Turn into a Reluctant Witness for the Prosecution when the Abuser is Charged with a Crime?
  
• In cases of crimes where persons know one another, the likelihood that a Victim will request that charges be dropped is higher than in cases of offenses committed by a stranger.
  
• The Goal of many Victims is to stop the violence against them while maintaining the positive aspects of their relationships with their partners. Because of these conflicting goals, Victims are often reluctant or fearful to have the Abuser arrested and prosecuted.
  Equally important for Law Enforcement and Prosecutors to understand are the real threats the Victim has been and continues to be subjected. It is not unusual the Abusers have warned the Victims that any contact with the Police will result in additional harm to her, her children, her relatives, and the property.
  
• Statistics bear out this threat. Victims of domestic violence are more at risk for harm when attempting to leave their partners, either by going to a shelter, going to friends or relatives, seeking a divorce, or calling the police.
  
• Additional reasons Victims of domestic violence fail to cooperate with the prosecution are:
  Some fear a violent reprisal from the Abuser if he thinks she is helping the Prosecution.
  Some do not understand the criminal justice system and are afraid of it.
  
• Most Victims experience delays in the prosecution process, transportation costs, and days off work for attending court dates in which the case is continued.
  
• Many believe they will receive no satisfaction from following through with the Prosecution.
• Some are overwhelmed by feelings of guilt and shame that the abusive incidents are public.
  
• Some reconcile with the Abusers, and do not want to have the abusive incidents remembered.
  
• Some think they have obtained their goal regarding the apparent stopping of the violence, before the case goes to trial.
  
  How Can I Help to Get the Abuser Convicted of a Crime Committed Against Me?
  
• Seek Medical Attention Immediately. Tell the emergency room personnel what happened to you. Ask that they take photographs of your injuries.
  
• Make a Police Report because it will become evidence of the abuse, plus it can prove helpful to show past abuse, if the abuse continues.
  
• Save Evidence. The police should gather the evidence of the abuse at the scene. You should keep it if the police will not take it with them. Evidence includes dated photographs of your injuries and/or damage to the home, torn clothing, any weapons used, copies of your medical records, and the names and statements from anyone who heard or saw the attack.
  
• Ask the Prosecutor at the State's Attorney's office what you can do to help convict the Abuser of the crime being charged (for example, domestic battery or unlawful restraint). This will probably include your willingness to testify about the abuse in a Court hearing. However, once the Abuser hears that you are willing to tell the Court about the abuse at a hearing, many Abusers settle the case because they know the truth will come out. At that point, the Prosecutor may enter into plea negotiations with the Abuser, and you will not have to go to Court.