Jailing Rape and Domestic Violence Victims is an Abuse of Prosecutors’ Power

When prosecutors ask judges to jail people, we assume that it’s because the person has committed some crime and is so dangerous that the person should not be out among the public. We hope that prosecutors will balance their pursuit of justice against the costs of prosecution to the victim and witnesses involved. We trust that prosecutors understand the tremendous power that they wield and use it wisely.

What we don’t expect is that prosecutors will use their powers to jail victims of violent crimes in order to secure their testimony, without regard to the impact on the victim. But prosecutors exercise this power every day in domestic violence and rape cases.

In a 2015 case in Texas that has recently come to light, a rape victim (already suffering from bipolar disorder) broke down while testifying during the trial of a man who choked, beat, and raped her. She could not finish testifying and was instead sent to the hospital. The victim at some point reportedly said that she would not retake the witness stand. To ensure that she would return to court, prosecutors requested, and a judge granted, a warrant allowing law enforcement to detain her as a material witness to a crime.

On December 18, 2015, she was handcuffed, arrested, and sent to jail. She was held for 27 days. During her incarceration, the woman was classified as a perpetrator—not a victim—of sexual assault and placed in the general prison population, where she was assaulted by an inmate and punched by a guard.

It’s easy to cast this as the story of overzealous prosecution gone wrong, an outlier. But it’s not an isolated incident. In 2012, prosecutors requested that a 17 year old who did not appear at her attacker’s trial be jailed to ensure her testimony was available for trial. She was released after three weeks in juvenile detention, but ordered to wear a GPS device until trial.

Prosecutors ask for, and judges grant, similar warrants in domestic violence cases on a regular basis. In September 2013, prosecutors in Kennebec County, Maine, requested an arrest warrant for Sheila Kimball after she was subpoenaed but failed to appear to testify against her husband. Kimball was arrested and brought to court in the fleece pajamas she was wearing when police arrived at her home. After continuing to refuse to testify, Kimball was incarcerated for a day and later released. Six months later, Kennebec County prosecutors had Jessica Ruiz arrested as a material witness in her husband’s domestic violence trial; after 17 hours in jail, Ruiz testified.

Service providers for victims of sexual assault and domestic violence are rightly concerned about the chilling effect that such policies have on reporting. As Noellee Mowatt—19 years old, 9 months pregnant–told a reporter while in prison for failing to appear for her boyfriend’s domestic violence trial, “I’m never calling the police again—even if I’m dying, I’m not going to call them.”

For victims of sexual assault and domestic violence, testifying in criminal trials can be an ordeal. They are forced to relive some of the most traumatic experiences of their lives, in public, face to face with those who harmed them. Their stories are constrained by time, the rules of evidence and a jury or judge’s willingness to listen. They are cross-examined by defense attorneys who are trained to make their stories seem unbelievable and to destroy the credibility of the storyteller. Though they are victims of crime, their behavior is scrutinized and their choices questioned. They are subject to prejudices and stereotypes about sexual assault and domestic violence that cause judges and jurors to ask what they were wearing, how much they were drinking, why they didn’t leave. The experience of testifying can be so damaging that psychologist Judith Herman has noted, “If one set out intentionally to design a system for provoking symptoms of traumatic stress, it might look very much like a court of law.”

And at the end of that ordeal, there is no guarantee that the offender will be held accountable in any meaningful way. Although his victim powerfully detailed the impact of the rape on her life, the judge who sentenced Stanford student Brock Turner decided that six months imprisonment was an appropriate response to raping an unconscious woman and leaving her body behind a dumpster. It’s not surprising, then, that some victims would rather not participate in criminal trials.

Prosecutors have a difficult job—protecting the community against those who would do us harm. But in their zeal to ensure that they convict wrongdoers, they are abusing those who they were meant to protect. Jailing victims of sexual assault and domestic violence to compel their participation in prosecution is simply wrong. The practice must stop.

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Leigh Goodmark is an anti-violence advocate and a professor at the University of Maryland Carey School of Law, where she directs the Gender Violence Clinic. She is the author of A Troubled Marriage: Domestic Violence and the Legal System.

Professor, University of Maryland Carey School of Law

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