Challenging the efficacy of no-drop prosecution policies in domestic violence cases: a comparative legal analysis

Abstract

Domestic violence against women is regarded as a serious violation of human rights. The United Nations and regional organizations such as the Organization of American States and the Council of Europe have adopted binding instruments that address violence against women, which includes domestic violence. These conventions require effective enactment and enforcement of laws that criminalize domestic violence at the national level. State Parties are under an obligation to investigate and prosecute such acts of violence against women and ultimately to punish wrongdoers. This thesis evaluates the endorsement and use of mandatory criminal proceedings also known in the language of the UN Framework for Model Legislation as no-drop prosecution policies, ie, once the law and legal system are triggered the prosecution cannot be “dropped” even if the complainant herself wants to withdraw the case. No-drop prosecution policies are grounded in the consistent evidence that for a number of reasons domestic violence complainants often withdraw from legal proceedings after initiating them. The main goal assigned to no-drop prosecution policies is to send a message to society that domestic violence constitutes a serious crime, while also ensuring the safety of the victim. However, domestic violence is a crime like no other. By recognising the distinctive features of domestic violence, and examining the socio-political and historical legal backgrounds that shape the diverse criminal justice systems, this thesis invites a debate on the significance of endorsing no-drop prosecution policies on an international level and its effectiveness in preventing and combating domestic violence on the national level. This thesis presents an evaluation of no-drop prosecution policies through doctrinal and empirical comparative research undertaken in Portugal and the Canadian Province of Manitoba. The thesis combines an analysis of official statistical data on domestic violence in both jurisdictions, qualitative interviews with key professionals, and, in the case of Portugal, a detailed review of samples of case files. These comparisons provide a basis for understanding how international law may translate into law in practice. The empirical data shows that no-drop prosecution policies have catapulted domestic violence into the public arena with sizable changes in reporting, charging, prosecution and conviction. Yet, the analysis of qualitative data that complements the quantitative data reveals that victims’ involvement and cooperation carry a cardinal weight in prosecuting and securing a conviction. For that reason, the structure of the adversarial system in Manitoba, which incorporates the principle of opportunity and specificities of evidence law, allows the system to accommodate the interests of the victim in a manner that improves the probability of prosecution and conviction through the mechanism of plea bargaining and a guilty plea. Such a mechanism is alien to the Portuguese structure of criminal procedural law given its telos within the criminal justice system. And since the (reluctant) victim’s interests do not intersect with the interest of the state in prosecution and the ultimate goal of truth-finding at that point in time, the majority of reported cases are dismissed at the prosecution level. Finally, the question of deterrence remains an open question in both jurisdictions. Both long term trends on domestic violence crime and available data on recidivism do not suggest that the no-drop prosecution policies have a deterrent effect. In the final section, the thesis refines its contribution to the international debate on the implementation of no-drop prosecution policies to address domestic violence. It argues that, for a number of seminal reasons, the duty of due diligence in adhering to international law standards should be challenged and questioned as it may become part of the problem. Firstly, the international standards have been built upon the universal ideal of human rights, with little insight into the specificities of distinctive criminal justice regimes which reflect each State’s philosophical conception of justice, and thus affect the operation of such standards. Secondly, the effect of the use of no-drop prosecution policies in relation to deterrence remains controversial. Finally, there is potentially a normative conflict between international obligations, arising from the obligation to pursue prosecution and the protection of women from revictimization.