Recanting Victims Don't Stop Domestic Violence Prosecutions

September 11, 2009

California domestic violence laws make it illegal to use violent force (or threats of bodily harm) against an intimate partner. An intimate partner is usually defined as a current or former fiancé, spouse, cohabitant, boyfriend, girlfriend or the parent of your child.

Following a domestic violence arrest, it's not uncommon for the alleged victim to "recant." For example, suppose neighbors call the police to report that Tom and Sue are in a heated argument. The cops come. Sue has redness on her cheek and tells the officers that Tom had slapped her. Tom gets arrested for domestic battery.

A week later, Sue goes to the police station and changes her story. "I made the whole thing up. Tom never slapped me. I got that swollen cheek when I fell. I don't want to press charges." Is the case over? Not if prosecutors believe that Sue told the truth the first time.

California domestic violence prosecutions proceed all the time, even with recanting "victims." It's commonly believed that DV victims are prone to false recantations...because they change their mind, they make up with the accused, and they no longer want to see him prosecuted.

So what if Sue takes the witness stand at trial and testifies that the battery never happened? California Evidence Code 1235 allows the prosecutor to present evidence of her "prior inconsistent statements"...for example, by calling the police officer to testify as to Sue's original story. Sue's prior statements are admissible not just to impeach her testimony at trial, but also for the truth of the matter originally asserted.

The prosecutor would then argue that the jury should believe Sue's original story to the cops...rather than her contradictory testimony in court.

So how effective are domestic violence prosecutions with recanting victims? To be sure, they happen all the time and many result in guilty verdicts. But prosecutors' tasks are usually more difficult when key witnesses don't cooperate.