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What If a Domestic Violence Victim Refuses to Testify?

Posted by Dmitry Gorin | Jun 26, 2024

Let's review whether you can still be prosecuted for domestic violence in California if your accuser refuses to testify. Being accused of domestic violence is a very serious matter, one that can result in immediate disruptions for the accused (including arrest, detention, and restraining orders) even before charges are filed.

But what if your accuser decides not to testify against you? Are you "off the hook," so to speak? Or can you still be prosecuted? The answers, in order, are: No, you are not off the hook, and yes, you can still be prosecuted for domestic violence.

What If a Domestic Violence Victim Refuses to Testify?
You can still be prosecuted for domestic violence if your accuser refuses to testify.

Domestic violence typically includes actions that cause physical harm, injury, stalking, threats, or property damage. In California, the most common charge for domestic violence involving corporal injury to an intimate partner falls under Penal Code Section 273.5 PC, a "wobbler" that can be charged as a misdemeanor or felony.

Other domestic violence charges, like child abuse, domestic battery, and elderly abuse, are also wobblers. Felony convictions might result in up to four years in state prison and a fine of up to $10,000. Anyone convicted might also be required to complete a one-year batterer's treatment program.

Victims can seek a restraining order for protection, emphasizing the gravity of domestic violence charges. These are essentially stay-away orders prohibiting contact with the alleged victim.

It's common for victims to want to drop charges and end the case, but it's a myth that they have the legal authority to do this on their own. The legal process doesn't automatically end when victims do not want to pursue a criminal case against their alleged abuser.

Even without the victim's cooperation, many domestic violence cases will still be prosecuted by the district attorney. This means the legal system might still take action, and the case could go to court, regardless of the victim's wishes. A conviction can still occur even if the victim chooses not to testify.

Let's talk about why this is so and how you should prepare if you've been accused of domestic violence.

What is California's "No-Drop" Policy?

California employs a "no-drop" policy for domestic violence cases, meaning the prosecution can continue even if the victim expresses a desire to drop charges.

This policy underscores the state's commitment to addressing and mitigating domestic violence comprehensively. Prosecutors can proceed independently based on the available evidence, thus ensuring that justice is pursued even without the victim's active participation.

Understanding Domestic Violence as a Criminal Offense

Why might prosecutors still charge you with domestic violence if your accuser changes their mind about testifying? The answer lies in understanding the difference between a civil and a criminal case.

The fundamental difference between criminal and civil cases lies in who initiates the proceedings. In civil cases, the victim (plaintiff) brings the lawsuit against the accused (defendant).

The primary goal is to seek compensation or some form of remedy. In criminal cases, however, the state, represented by the prosecutor, brings charges against the defendant. In other words, the state is effectively the "plaintiff." A criminal case aims to punish the offender and protect the public.

In domestic violence cases, the victim's role is that of a witness, not a plaintiff. Even if the victim decides not to testify or cooperate, the state can still pursue the case if sufficient evidence proves that a crime occurred.

When Are Defendants Arrested?

When a 911 call or domestic violence allegation is made, victims might later want to drop charges. Still, California Penal Code 836(d) PC allows the police to arrest without a warrant if there's probable cause. This often leads to charges filed by the District Attorney's office.

Victims of Domestic Violence Dropping Charges

PC 836(d) says, "Notwithstanding paragraph (1) of subdivision (a), if a suspect commits an assault or battery upon a current or former spouse, fiancé, fiancée, a current or former cohabitant as defined in Section 6209 of the Family Code, a person with whom the suspect currently is having or has previously had an engagement or dating relationship, as defined in paragraph (10) of subdivision (f) of Section 243, a person with whom the suspect has parented a child, or is presumed to have parented a child pursuant to the Uniform Parentage Act (Part 3 (commencing with Section 7600) of Division 12 of the Family Code), a child of the suspect, a child whose parentage by the suspect is the subject of an action under the Uniform Parentage Act, a child of a person in one of the above categories, any other person related to the suspect by consanguinity or affinity within the second degree, or any person who is 65 years of age or older and who is related to the suspect by blood or legal guardianship, a peace officer may arrest the suspect without a warrant."

While the alleged victim's testimony can be pivotal in a domestic violence case, it is not the sole determinant of whether the prosecution will proceed. Prosecutors are acutely aware that victims may retract statements or refuse to testify for various reasons, including fear, coercion, or a change of heart. Consequently, they are trained to build cases that do not solely rely on the victim's cooperation.

What is Evidence Beyond the Victim's Testimony?

California law enforcement and prosecutors can utilize a variety of evidence to establish a case of domestic violence. This evidence may include:

  • Physical Evidence: Photographs of injuries, medical reports, and any physical property damage can substantiate abuse claims.
  • Witness Statements: Testimonies from neighbors, friends, or family members who witnessed the incident or its aftermath can provide corroborative evidence.
  • 911 Calls: Recordings of emergency calls can capture real-time accounts of the incident, often reflecting the immediate distress and details narrated by the victim.
  • Police Reports: Detailed reports from responding officers, including their observations and statements made by the victim at the scene, play a significant role.
  • Text Messages and Emails: Any written communication between the involved parties can serve as evidence, especially if there are admissions of guilt or threats.
  • Prior Incidents: Evidence of past domestic violence incidents between the same parties can also strengthen the prosecution's case.

What are the Defense Strategies?

Although prosecutors can decide to charge you with domestic violence independently of the accuser's testimony, it is still often more challenging to prove their case without it. An experienced California criminal defense attorney can usually use this reality to your advantage. Common defense strategies may include:

  • Challenging the Evidence: A defense attorney can question the credibility, accuracy, and relevance of the evidence presented by the prosecution, even during the pre-trial phase. In many cases, proving the weakness of the evidence minus the accuser's testimony can result in charges being dropped.
  • Self-Defense: Demonstrating that any actions taken in self-defense can negate allegations of domestic violence.
  • False Accusations: Proving that the accusations are false or fabricated can undermine the prosecution's case.
  • Challenging the Accuser's Credibility: Discrediting the accuser by questioning their character, motivations, or credibility can weaken the prosecution's case. This argument can be bolstered if the accuser has changed their mind about testifying.

Contact our criminal defense law firm for more information. Eisner Gorin LLP is based in Los Angeles, CA.

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About the Author

Dmitry Gorin

Dmitry Gorin is a licensed attorney, who has been involved in criminal trial work and pretrial litigation since 1994. Before becoming partner in Eisner Gorin LLP, Mr. Gorin was a Senior Deputy District Attorney in Los Angeles Courts for more than ten years. As a criminal tri...

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