Can the victim make the State drop charges in a domestic battery case?

by Sami Azhari on February 3, 2011

Drop Charges in Domestic Battery

Many people believe that if they are the victim of a domestic violence incident, they can choose whether to press charges. During the course of a domestic altercation, they call 911 wanting the police to show up and calm the situation. In many instances, they do not want the defendant to be arrested.

But once the call to the police is made, the situation is taken out of their hands.

In Illinois domestic violence courtrooms, the person who is the victim has no say on whether the prosecution will go forward or drop the charges. The State’s Attorney has authority over the case and complete discretion as to which cases will be prosecuted.

Judges and attorneys refer to the victim as the complaining witness, because that is who made the complaint (eg, the 911 call that resulted in the arrest). The fact that the complaining witness refused to sign a written complaint, or make a written statement has no impact on whether the State’s Attorney will go forward with the case. A phone call to the State’s Attorney also has no influence on whether the case will go forward.

The reason is politics. Each county’s prosecutor, the State’s Attorney, is an elected official. State’s Attorneys get elected by being tough on crime. Domestic abuse is always a top priority for State’s Attorneys. If the prosecutor is seen as being weak in prosecuting domestic violence offenders that makes re-election almost impossible.

And so, the State’s Attorney policy will always be to prosecute these cases to the fullest extent of the law.

The decision to drop charges does not belong to the victim. In fact, the prosecution can go forward even where the victim does not cooperate.

For example, a common belief from complaining witnesses is that they can refuse to testify. This belief is mistaken. A complaining witness can be forced to testify against the defendant.

Very few people can lawfully refuse to testify. The defendant can refuse to testify, but only because he is protected by the 5th Amendment privilege against self-incrimination. The defendant can plead the 5th and suffer no consequences.

For anybody else, though, refusing to testify can cause the judge to hold them in contempt of court. In addition to being fined, they can be sentenced to jail. This happens more often than people expect. Once a case makes its way before a judge, the court is usually of the opinion that a refusal to testify is similar to obstruction of justice. Judges punish this behavior severely.

Illinois law recognizes the spousal immunity privilege. This privilege allows a spouse to refuse to answer questions, but it only concerns confidential communications between a husband and wife. The privilege protects things that are said in private between spouses. If a spouse is accused of domestic battery under 720 ILCS 5/12-3.2, that is not a confidential communication. Rather, the act was a criminal offense. Therefore, the court would say the complaining witness must testify against the defendant.

An arrest for domestic battery presents a complicated situation. The complaining witness has no control over the proceedings. The defendant must rely on the advice and defense strategies of his attorney.

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