Prosecutorial Discretion to Charge in Cases of Spousal Assault A Dialogue

• NCJ Number: 94865
• Journal: Journal of Criminal Law and Criminology Volume: 75 Issue: 1 Dated: (Spring 1984) Pages: 56-102
• Author(s): J W Ellis
• Date Published: 1984
• Length: 47 pages
• Publication Format: Article
• Language: English
• Country: United States of America

Annotation

This article, in the form of a dialog between prosecutor and questioner, explores the question of when a family fight, involving physical force or the threat of physical force, can be treated as a family crime.

Abstract

The prosecutorial decision to charge in spousal assault cases is pivotal. The dialog attempts to bridge the gap between those who favor prosecution of cases of 'minor violence' in families or intimate relationships and those who do not, and the gap between the language of a number of criminal statutes and the enforcement of those statutes. The criminal justice system lacks consensus concerning the criminality of domestic violence; where there might be conviction, there is ambivalence instead. The questioner begins the dialog by taking the position that all cases of violence or threatened violence between spouses or intimates should be prosecuted if there is probable cause to believe that a criminal statute has been violated. The prosecutor disagrees, and the dialog continues by exploring the reasons for that disagreement and possible compromise positions. The prosecutor suggests that only cases involving serious physical injury be prosecuted, although cases involving weapons but no injuries might merit consideration. Issues affecting the prosecutor's decision that are discussed in the dialog include the seriousness of the offense, state intervention in intimate relationships, images of the victim (motives, desires, and needs), the blameworthiness of the assailant and victim, the victim's reluctance to prosecute likelihood of conviction, and limited resources. The dialog ends in a stalemate, with the prosecutor believing that the system will not change until victims refuse to accept mistreatment in the first place, and the questioner arguing that victims' cannot stand up for themselves if society tolerates abusive behavior by refusing to condemn assaults as criminal. A total of 148 footnotes are provided.