By Mark David Blum, Esq.
Local prosecutors have taken it upon themselves to declare that once you are a victim of a crime, you are always a victim. According to policy and behavior, once someone seeks out police intervention, there is no choice but to require the solicitor to be forever under the control and domination of prosecutors. This holds true even when the victims themselves no longer want help nor seek prosecution. The question arises then as to who is in charge of the situation; prosecutors or the citizen.
The facts are simple; the problem complex. Hypothetically, assume that one night a young couple gets into a nasty fight. Heated words are exchanged and a few household objects are thrown. Assume further that in the heat of the argument, one of the involved calls police for help. Doing their job, police respond to the call and break up the fight. The non calling party is arrested and charged with a crime. There were no injuries nor did anybody use physical force against the other. Six months go by. The fight is long since forgotten and the couple has worked through the problems and is living happily ever after.
One day prosecutors decide to advance the case against the arrested partner. They send notice of their intent to proceed to trial. The partner who called police is summoned to testify before the Grand Jury. But she refuses. The problems that gave rise to the initial police intervention have long since been solved. People change, grow, and learn from their mistakes. One bad night does not a relationship make. Refusing to testify against a loved one, prosecutors tell the victim that she herself will end up in jail if she does not cooperate. She makes it clear she doesn’t want to proceed with the prosecution and wants the charges dropped. Our District Attorney does not want that to happen and insists the woman testify under pain of imprisonment.
I can sympathize with prosecutors and I do understand their mindset. If perchance something happens in the future and the victim is seriously injured or worse, prosecutors will be seen to have dropped the ball. They should have taken action sooner and not allowed the victim and accused to remain together. Domestic violence is a serious problem and there has to be some action taken to make sure that people can live safely and in peace.
At the same time, a citizen should have the final say in whether they want to continue their status as crime victim. They should be able to drop charges and let go of events that happened months earlier. If the couple has worked out its problems, then who are prosecutors to demand to interfere with the most basic of family privacy and insist on an unwanted prosecution.
Under our constitution, family privacy is amongst the most sacred and recognized freedoms that we Americans enjoy. Who we live with, the children we have, and how we fashion our relationships are issues far outside the scope of governmental interference. The question is begged as to wherefrom does the power of the State come to override the choice of the family. If the family is living happily ever after and does not want government help, then by what doctrine does the government force itself in between the couple.
As hypothetical as these facts are, they are also currently at play in a case pending in this county. A couple in a long term relationship had a bad night that resulted in police intervention. The couple resolved their disputes and have gone on to live happy. They share children and now several years of their lives together. Prosecutors still have an unsatisfied bloodlust and are demanding one partner continue with her prosecution of the other. The victim is herself being threatened with incarceration for refusing to cooperate with the Grand Jury despite making clear she does not want her partner prosecuted. Nobody except the defense attorney seems to care that this is a deep invasion of family privacy.
Society is not best served by mandating someone be a victim against their will. Police and prosecutors are in place for when citizens need help. At the same time, neither police nor prosecutors are parental authority figures and neither should have the power to step in and tell people they must prosecute one another.
I understand well the frustration and stress State actors feel as they try and protect victims of violence and crime within the family. From the Supreme Court on down, the family is shielded by a bubble of protection that precludes the state from peering inside, passing judgment of goings-on, or intervening without invitation. This shield against government involvement is a formidable barrier that at times can prevent help from getting to people in desperate need. Children can be harmed for years before help can come their way. Spouses can be brutalized without recourse. Government has a difficult time coming to the rescue of those needing help.
But, this is the world we live in the law under which we thrive. To turn the situation upside down and enable the state to involve itself in how families organize themselves and to hold all families to a state sanctioned litmus test would interfere with the most basic of fundamental rights. We do not live and thrive for the benefit of the state. The State is there to enable us to live our lives with greater freedom.
So the question becomes at what point must the State have to step aside and despite its desire to help, still recognize family privacy as being paramount. A citizen shielded by the right to family privacy should not be compelled under pain of imprisonment to testify against another in their family against their will. There are times when the State has to stand down and take no action no matter how much it wants to “help”.
I don’t know how the particular case is going to work itself out. But as a citizen and defender of rights, I have to call out the government when it insists on intervening in family privacy by force to help someone who does not want it. By mandating a citizen to remain a victim long after the problem has been solved makes the situation in society that much worse. Citizens will be less likely to seek out help if they know that the government and not the citizen is in charge of their own future. Doing so creates stress in the family that otherwise would not exist.
It is immoral and contrary to public policy to require a victim continue that status against their wishes. If prosecutors are concerned about safety in the family, then why would they themselves create the situation that adds to stress and seeks to tear a family apart. Society does not gain by such heavy handed police actions. An adult citizen should have the right to declare when they are no longer a crime victim. That decision should not belong to government.