On March 8, through a unanimous ruling on Crawford v. Washington, the Supreme Court affirmed a defendant’s right to face and question accusers.
More subtly, it also affirmed the power of victims of domestic violence to exercise control over their own cases -- specifically over whether or not to pursue charges.
What are the circumstances of Crawford v. Washington? Michael Crawford pleaded self-defense in stabbing a man he believed had attempted to rape his wife. His wife was present during the stabbing and at one point made a taped statement to the police in which she said that the victim may not have been armed. But, she invoked marital privilege to keep from testifying against her husband at trial. In her absence, the judge accepted the taped statement she'd made to the police as "reliable," even though the tape precluded cross-examination by the defense. Crawford was found guilty.
In his opinion on the case, Supreme Justice Scalia stated: "Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty. This is not what the Sixth Amendment prescribes."
(The Sixth Amendment reads, in part, "In all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him.")
Crawford v. Washington did not involve domestic violence but the Supreme Court decision bears directly on such cases. Rules of procedure vary from state to state but, commonly, prosecutors have no obligation to produce a witness at trial. Instead, the judge can admit evidence such as statements made to the police by witnesses. In doing so, prosecutors often cite Ohio v. Roberts (1980) which found that a statement from an unavailable witness could be allowed if it was deemed trustworthy.
This prosecutorial strategy is particularly significant in domestic violence cases because victims are often unwilling to testify against "loved ones." In most crimes, it is unusual for a prosecution to proceed when an uncooperative victim wants to drop the charges. In domestic violence, such prosecutions occur regularly.
The reason is largely political. In the last two decades, a blast of outrage has been directed at the legal system for ignoring or trivializing complaints of domestic violence. Legal professions have been admonished to show sensitivity, not disdain, toward women traumatized by domestic violence who are in need of support. The system received a much-needed overhaul but, in the process, another group of women was injured: the victims of domestic violence who do not wish to press charges.
For example, many police departments have instituted mandatory arrest policies that remove police discretion from domestic violence cases. But they also remove the victim’s discretion. This is a bitter irony: In an attempt to protect one class of victims, another class has been further injured.
By requiring witnesses to appear in court in order for a case to proceed, Crawford v. Washington may open the door to a more equitable solution. Domestic violence victims who wish to press charges can benefit from increased sensitivity while those who decline to press charges can exercise control by refusing to cooperate with authorities. The wishes of the victim may once again become legally significant.
That’s how it should be. Victims should always have the final say over whether to prosecute. This control is especially important in cases that involve intimate relationships such as husband and wife, parent and child. A legal system that strips domestic violence victims of choice is committing an act of violence against them that may be more damaging than the original crime.
The legal disrespect of a victim’s right to say "no" to prosecution springs from a view of victimhood that has become popular over the last decades. In the ‘80s and ‘90s, mainstream feminism sold a simplistic theory of domestic violence and of its victims -- specifically, women. According to this dogma, there is only one valid solution to the complex social phenomenon of domestic violence: the woman should leave the relationship and press charges.
Reality frowns on this dogma. Many intelligent women choose to stay, and some do so for good reason. For example, a woman might want to help her husband and the father of her children through a rehabilitation process that will eliminate the "cause" of his violence.
To maintain the dogma of "one solution," however, women who stay or do not press charges have been portrayed as helpless victims who cannot recognize their own interests. In the ‘90s, it became popular within feminism to speak of the Stockholm Syndrome in connection with domestic violence victims. This refers to the traumatic bonding that can occur between a captor and a captive, an abuser and a victim. In short, women who stayed were said to be psychologically damaged so that even their clearly stated wishes should be disregarded…for their own good, of course.
The Stockholm Syndrome may apply to extreme cases of domestic violence. But the idea of traumatic bonding has been embedded in the everyday laws and procedures that define the status of victims of a common crime. Or, at least, it did define that status until Crawford v. Washington.
If the Supreme Court decision does disallow hearsay evidence across the broad horizon of criminal law, then defense attorney Dana Forman may be correct in considering it the most important Supreme Court ruling since Miranda in 1966. But the decision is not merely defense-friendly, as it has been portrayed.
It may also be a victory for a significant class of victims namely, victims of domestic violence victims who choose not to press charges.
Wendy McElroy is the editor of ifeminists.com and a research fellow for The Independent Institute in Oakland, Calif. She is the author and editor of many books and articles, including the new book, "Liberty for Women: Freedom and Feminism in the 21st Century" (Ivan R. Dee/Independent Institute, 2002). She lives with her husband in Canada.