There has been a lot of recent publicity about domestic violence in sports. In many ways these high profile examples of domestic violence reflect a broader societal problem. How does the judicial system deal with allegations of domestic violence?
The courts have had a difficult time addressing allegations of domestic abuse. In the criminal courts the burden of proof is defined as beyond a reasonable doubt which means to a moral certainty. In many cases the burden of proof is difficult to determine because there are often only the two parties present, the alleged batterer and alleged victim. The case of the NFL star Ray Rice is unique in that there was a video tape of the incident.
Beyond the “he said – she said” situation it is not uncommon for an alleged victim to decide not to pursue charges. In Massachusetts, if the parties are married, there is something called “martial privilege” which precludes marital partners from being compelled to testify against their spouses. In addition, there is also the legal concept of “fifth amendment privilege” which protects people (married or not) from incriminating themselves. So, even when prosecutors and judges are motivated to pursue charges against alleged abusers, they recognize the difficulty of getting alleged victims to testify against their partners.
In many cases the parties are able to resolve matters on their own, whether or not abuse had actually occurred. Given the dynamics of family relationships, complaining witnesses often refuse to go forward with a trial.
It is also common for alleged victims not to press charges if the parties are no longer together. In addition, there is often pressure from within the broader family circle on the alleged victim not to press charges which might result in jail time or loss of employment for a family member.
The complaining witness may also have financial reasons , such as child support, or emotional reasons for not wanting to go forward with a trial.
There is a legal mechanism called “excited utterance” which prosecutors might consider as a prosecutorial strategy with a reluctant witness, but it is a very difficult strategy to pursue.
In many cases treatment might be the best (and sometimes the only realistic) option. There are legal mechanisms by which people can avoid having a guilty plea or admission of guilt on their records if they agree to enter into a treatment program. (This option was recently taken by football star Ray Rice.)
Unfortunately, accusations of domestic violence have been used as a weapon rather than a shield in contentious cases.
Society has begun to take domestic violence much more seriously while the courts are struggling to address this very troubling and complicated area of the law. The courts are slow to change.