Non-Cooperative Victim in a Florida Domestic Violence Case

You’ve been arrested in Florida for domestic violence and the victim doesn’t want to prosecute.  The victim may have even filed a Request Not to Prosecute or stated so in open court.  Should you just assume that the charges are going to be dropped?  The short answer is no.

Florida Law specifically states that domestic violence shall be treated as a criminal act rather than a private matter.  As a result, there is a pro-prosecution mentality even if the alleged victim does not want to cooperate in the prosecution.  The reasoning behind this position is the State’s public interest in “protecting” the victim of domestic violence.  The charging document or Information setting forth the criminal allegations will read that the State of Florida is prosecuting the crime.  It is not the victim versus the defendant.  Therefore, if the State Attorney’s Office elects to prosecute the crime, often times it is against the wishes of the victim.  So how does the State Attorney’s Office prosecute a case when the victim doesn’t want to press charges?

Independent Witnesses and Other Evidence

If the State Attorney’s Office does not receive cooperation from the victim, it can proceed with testimony from other witnesses who may have seen the incident or heard statements of the defendant or victim; or they may use additional independent or corroborative evidence to prosecute the case.  Evidence such as 911 recordings, photographs, or other forensic evidence is frequently used.

State Attorneys Office May Subpoena the Non-Cooperating Victim to Testify Against Their Wishes

The State Attorney’s Office may decide that even though the victim doesn’t want to testify; they are going to compel the victim’s testimony through the use of a court ordered subpoena.  Once served, if the victim fails to appear or refuses to testify, they could be facing a jail sentence or other sanctions.

Fifth Amendment Privilege to Refuse to Testify Generally Doesn’t Apply to the Victims of Domestic Violence

As a general rule, if you are the victim of a crime you cannot refuse to testify on the basis of the Fifth Amendment.  That privilege is invoked when someone is facing a criminal charge.  (There may be exceptions that apply.  You should consult a lawyer to discuss them).

In Florida the Husband-Wife Privilege Does Not Apply in Domestic Violence Cases When the Victim is the Spouse

In the State of Florida, Husband-Wife Privilege only applies towards communications which were intended to be made in confidence between the spouses.  However, Florida law specifically states that there is NO Husband-Wife Privilege when one spouse is charged with committing a crime against the other spouse. This privilege does NOT apply towards observations made by the victim spouse.

Recanting Victim Testimony

If the non-cooperating victim believes that lying or changing their story is the best course of action, they may want to think twice about that.  The victim can very easily go from a situation where they are truly the victim to one where they are now a criminal defendant themselves.  A victim lying to law enforcement or the State Attorney’s Office can lead to many legal problems.  The victim could be charged with perjury, obstruction of justice, filing a false police report, or be held in contempt of court.  All of those results can carry a possible jail or prison sentence.

The Defendant and the Recanting Victim or Witness

Another significant problem that could develop is when the defendant encourages the victim or a witness for that matter to testify untruthfully.  If this information comes to the attention of law enforcement, the defendant could be charged with additional crimes such as Witness Tampering.  The State Attorney’s Office would surely bring this information to the attention of a jury; arguing that it showed the guilty conscience of the defendant.

Conclusion

If you have been charged with domestic violence in the State of Florida and the alleged victim doesn’t want to prosecute, that is not necessarily the end of the case.  The State Attorney’s Office makes the ultimate decision in which cases they prosecute.  Sometimes that the decision to prosecute is at odds with the alleged victim’s wishes.  Once that occurs it can lead to significant legal issues and problems for both the victim and defendant.  You are urged to consult with an attorney to discuss these issues as soon as possible.