The Recanting Victim and Domestic Violence
By John Mascolo, Esq. | Legally reviewed by Joseph Fawbush, Esq. | Last reviewed May 28, 2023
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The biggest difference between domestic violence and other forms of assault is that domestic violence involves people within the same family, household, or people that are dating. Prosecution of these crimes can be complicated, given the nature of the relationship. Victims of domestic violence may be reluctant to see a loved one so close to them get punished. When that happens, victims may stop cooperating with police and prosecutors. They may go so far as to recant their statements about the attacks.
In this article, we will use the terms "victim" and the word "survivor" interchangeably. Read on to learn more about recanting victims and domestic violence.
What Does "Recanting" Mean?
The state uses a victim's statements to the police about domestic violence to charge the abuser with crimes. Those statements then become evidence for the prosecution. If the victim later changes their story or takes back the statement altogether, it's known as recanting. This can happen at any time during the case, including at trial. Recanting often occurs after the incident and before trial in an attempt to get the charges against the abuser dropped.
Why Do Victims Recant?
There's no universal reason survivors of domestic abuse recant statements. The close relationship between the abuser and the survivor usually plays a big role. In some situations, it's the fear of future violence if the victim cooperates with the prosecution. Sometimes this fear also occurs because a survivor worries about how the abuser will behave after spending time in jail. A victim's fear may increase when they know that the state cannot always protect them. Local police lack the resources to ensure survivors are protected when their attackers are released.
Survivors may also face external pressure to recant. An abusive spouse may be the sole financial support for the household. Victims may fear they cannot feed their children if they leave. Pursuing the criminal case will mean living on their own or finding new housing. Recanting survivors may conclude that enduring the abuse is less harmful than housing instability.
Surprisingly, some survivors recant out of a sense of guilt. This is usually prompted when an intimate partner abuser claims to be a "victim" of the criminal justice system. A study of jailhouse conversations between abusers and victims identified a common pattern. At first, the offender would minimize the domestic violence incident. Later, the offender would appeal to the victim for sympathy. Finally, the offender would request that the victim recant, often so that they could be together again.
In some cases, the parties' history of domestic violence suggests that a victim may be experiencing Battered Woman Syndrome or BWS (also referred to as Battered Person's Syndrome).
Many states first recognized BWS as a criminal defense. For example, the defense is found in the Ohio Revised Code in Ohio. Under the defense, a person who faces criminal charges for a violent offense claims they suffer from BWS. They claim BWS demonstrates that they believed danger was imminent and they needed to defend themselves with force. The criminal defense attorney will seek expert testimony on BWS in such a case. The expert must have education or experience relevant to intimate partner domestic violence. The defense of BWS can mitigate the consequences for a battered woman who harmed an abuser.
Since the early 2000s, many courts have allowed BWS expert testimony in a prosecutor's case under certain circumstances. Such testimony may explain a victim's behavior when the defense has challenged the victim's credibility. This includes situations where the victim recants her original statement. The expert does not testify on the specific facts of the case. Instead, the expert testifies on the general behavior unique to survivors of domestic violence. The jury must weigh and determine whether the testimony helps explain the victim's behavior in the case. Cases involving domestic violence crimes may vary from state to state. Seek legal advice to clarify the use of BWS testimony in your area.
Moving Forward Without the Recanting Survivor's Cooperation
Just because a survivor no longer wishes to cooperate doesn't mean the case will be dropped. A criminal case is not like a private lawsuit between two parties. Criminal cases like domestic violence follow a different legal process. They are handled by a prosecutor's or district attorney's office. Therefore, the prosecutor will decide if the case goes forward. The prosecutor will assess the recanted statements of the survivor along with all the other evidence in the case. The prosecutor may pursue the case based on the strength of all the evidence taken together. Other evidence of the crime might include:
- Evidence identified in police reports
- Photographs of injuries or property damage
- Protective or no-contact orders
- Audio or video recordings, including 911 calls and jail phone calls
- Statements or threats made on social media
- Medical records
- Eyewitness accounts
- Admissions by the abuser to police or others
Effects of Recanting
Prosecutors may conclude there is enough independent evidence to proceed, even without the recanting survivor's cooperation. Prosecutors often expect domestic violence victims will recant their statements. In such situations, prosecutors may adopt strategies that are more like homicide cases. In a homicide case, no victim testifies and prosecutors hold violent offenders accountable.
In a common scenario, the domestic violence survivor cooperates with the signing of criminal charges. They also obtain a protective order or restraining order. The abuser then reaches out to the victim. Sometimes this occurs while the abuser is in jail and despite a protective order. The abuser requests or demands that the victim drop the domestic violence charges. The victim then requests that the prosecutor dismiss the case and recants their original statement.
Sometimes, the state cannot proceed with domestic violence cases when the survivor changes their story. The crime may go unpunished. The survivor and others may remain at risk of future domestic violence.
If you are a survivor of domestic violence, don't let yourself get pressured into recanting your statements. Contact local support groups or the National Domestic Violence Hotline (1-800-799-SAFE). Agencies like these exist to keep domestic violence survivors safe. You may also seek legal advice to help you decide what to do.
Can a Victim Face Criminal Charges After Recanting?
It depends. When a police officer responds to a domestic abuse call, he will often speak first to the alleged victim. Before filing criminal charges, the police officer may have the alleged victim sign an affidavit consistent with their statement. Later, when a victim recants, law enforcement may seek criminal charges against the alleged victim. Normally, this occurs when the prosecutor drops the case based on the recantation. The police may consider any number of criminal law offenses. They may pursue charges of perjury, a felony offense. They may also consider charges of falsifying a police report a misdemeanor offense.
The police decision to press charges against an alleged victim is difficult. If they press charges and convict the alleged victim, the victim will have a criminal record. What if the abuser attacks the victim again? The police have already questioned the victim's credibility. Will they believe the victim in the future?
The police and prosecutors must decide whether they believed the victim's original statement. If they did, then they may have ethical obligations to proceed. These same obligations would prevent them from filing criminal charges against the victim. Prosecutors do not only seek to convict. They must at all times seek a fair result.
Victims who receive a subpoena to testify in court and then do not appear face another consequence. The court may find them in contempt of court. Under proper circumstances, the court can issue an arrest warrant for a witness who was subpoenaed and failed to appear. Contempt of court can carry jail time and fines.
Get Legal Help With Your Domestic Violence Case
Domestic violence causes serious harm to survivors. As with any crime, reliable survivor testimony is absolutely critical for prosecutors. If you have any questions about a domestic violence case, contact any of the groups listed on our resource page for domestic violence survivors. If you have questions about recanting victims, you can also contact a domestic violence attorney or criminal defense lawyer with domestic violence experience.
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Contact a qualified family law attorney to make sure your rights are protected.