Can the Victim Drop Domestic Violence Charges?
By FindLaw Staff | Legally reviewed by John Mascolo, Esq. | Last reviewed May 16, 2023
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Let's consider a common domestic violence situation: Your spouse or live-in partner has threatened or caused you physical harm, and either you or someone you know (family, friends, neighbors, etc.) has contacted the police.
The police officer arrives and gathers evidence to determine whether to file domestic assault charges. The police officer takes witness statements and photographs of injuries. They may have you sign an affidavit to support your statement as the alleged victim. After determining probable cause, the police officer files a domestic violence charge against your spouse or live-in partner and arrests them.
The situation is chaotic. You're scared about what might happen. You don't want to be abused, but you also don't want to see your loved one get into legal trouble for domestic abuse. Many victims of domestic violence feel the need to protect their abuser. You may wonder: Should you work with the prosecutor's office or the criminal defense attorney? Do you, the victim, have the authority to drop domestic violence charges?
The answer is no. Once state authorities decide to press domestic violence charges, the victim has no authority to drop the charges. Why not? Domestic violence is a serious crime. Depending on the circumstances, offenders may face a misdemeanor or felony charge. In either case, jail time becomes a real possibility.
The process behind criminal charges is frequently misunderstood. Most people believe that victims of crime issue the charges. This is wrong. The state governs crimes, and it's the state that issues criminal charges, not the victim.
In other words, since you didn't issue the criminal charge, you can't drop it. Therefore, the state (in particular, the prosecutor's office) will decide whether to move forward with the case or dismiss the domestic violence charges. However, you will still play an important role as the proceedings advance.
The Victim's Role in the Domestic Violence Case
Victims have many roles to play as a domestic violence case moves forward. For example, prior to trial, the district attorney or prosecutor may reach out to the victim to discuss the domestic violence allegations. They will also compare the victim's statement to the one found in the police report. If the case proceeds to trial, the victim will likely be required to testify in court against the person accused of domestic violence. Both the district attorney and the criminal defense attorney can subpoena the victim. However, some states, such as California, have victims' rights laws that may allow a victim to refuse to testify under certain circumstances. The state may also request the victim to provide input on matters of bail, pre-trial release, or sentencing. In addition, the victim may be invited to make a recommendation when the judge decides whether to release the abuser.
Filing a Lawsuit
You don't need to be passive if you are a victim. In other words, a victim's role is not limited to responding to a subpoena and testifying in the criminal case. It's fully within a victim's rights to file a separate civil action regarding domestic violence allegations. Bringing a civil action means that the victim can sue the abuser for money to pay for personal injuries, wage losses, psychological injuries, and even other costs.
Filing for a Restraining Order
A victim can also separately file for a civil protection order or restraining order against an abuser. In this separate civil action, the victim will decide what relief to seek in the protection order. They can also later request that the court terminate the order when it is no longer needed. Protection or restraining orders can help provide for safety. Restraining orders may provide for the exclusive use of a residence and contain a no-contact order. Put simply, the victim can stay in the house, alone or with any children, while the protection order is in effect. Protection orders may also require an abuser to surrender firearms for the order's duration. Also, depending on your state, a protection order may provide for the option to break a household lease early. The victim may fear that the abuser's release will bring additional harm. In this case, the victim may take this option in order to secure a new residence.
Domestic Violence Charges: Differences Between Criminal Cases and Civil Suits
If you are a victim of domestic violence, consider filing a civil suit against an abuser, even if there's already a filed criminal charge. Remember, crimes are offenses against the state and only the state can issue or drop charges. Civil offenses, however, are offenses against victims. A victim can choose whether to sue.
There are benefits to filing a civil suit. In addition to helping to obtain money to pay for injuries, loss of wages, and any other costs related to the abuse, the burden of proof in a civil action is lower than in a criminal case. In a criminal case, the abuser must be proven guilty "beyond a reasonable doubt." The reasonable doubt standard usually requires more than 90% certainty. That means the state would have to prove that there is at least a 90% chance that your abuser committed domestic violence acts. In a civil case, however, the standard is "preponderance of evidence," which usually requires a 51% standard. So, a civil case only requires proof that it is more likely than not that your abuser committed the domestic violence acts.
Changing or Recanting a Statement
Even though victims can't drop domestic violence charges that the state files, victims frequently want to change or recant their statements to police and investigators. Eighty-to-ninety percent of domestic violence victims recant. Recanting means taking back the original statement. For example, a victim may tell police that their spouse caused physical harm but might later want to recant that statement.
Although the victim may believe they are aiding the defense strategy of the case, recanting is not always a good idea. Recanting won't necessarily force the state to drop the case. The state can still prosecute the case using police reports, photographs, medical records, witnesses, and other evidence. A victim that recants may face criminal charges for falsifying information to law enforcement authorities and the court. Victims of domestic violence may not understand that recanting domestic violence allegations can result in a criminal record if they are later convicted of falsification. For these reasons, victims should seek legal advice before recanting any statement.
Why Do Victims of Domestic Violence Often Recant Their Statements?
Reasons vary but may include:
- Emotional pleas from the offender or other family members
- Minimization of the offense by the offender or others
- Financial dependence on the offender
- A desire not to see the offender serve jail time
- Embarrassment or shame felt by the alleged victim
- Statements from the offender that they are contemplating suicide
The process following a domestic violence situation can be confusing and emotionally challenging, both for the victim and those close to the criminal case. Courts and prosecutor's offices often allow help from victim services professionals such as victim advocates. These advocates can meet and talk with victims throughout the life of the case. Victim advocates can provide victims with information on community services and emergency shelters. They can also help address other needs.
Trying To Drop a Domestic Violence Charge? Get in Touch With a Lawyer
Dropping a domestic violence charge may be unlikely, but there may be other things you can do to protect yourself and your children. You may want to know more about your options when the state issues domestic violence charges. You should seek the advice of a lawyer that understands the impact of both family law and criminal law in your area. You can contact a local family law attorney today.
You Don’t Have To Solve This on Your Own – Get a Lawyer’s Help
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Contact a qualified family law attorney to make sure your rights are protected.