By Criminal Defense Lawyer Jeremy Rosenthal
A domestic violence or family assault charge is essentially a lawsuit between the State of Texas and the accused. The complaining witness is exactly that — a witness. Witnesses in a case really have no standing to independently decide whether a prosecution goes forward.
So the short answer to the original question is this: you can’t make them do anything.
People assume there is an implied power they have to “press charges” against another person. Maybe for theft or – as I’m discussing today — assault. I’m sure some police agencies might use the term with a victim asking them if they want to “press charges” kind of as cop-out (bad pun) of making a hard decision whether to arrest someone they really don’t want to arrest in the first place. “You don’t want to press charges, do you?”
The term “pressing charges” doesn’t really have any meaning in a courtroom in Texas, though. If a complaining witness, spouse, or victim uses the term telling the judge or prosecutor they want to “drop charges” or something to this effect, the Court has no power to do anything with this information… and it’s not binding on the prosecutor either.
What the Prosecutor or Police Really Hear when you Tell Them You Want to Drop Charges
Most prosecutors and police are big believers in what is known as the Duluth Model of domestic violence. This is where we get the term “Cycle of Violence.”
The Duluth Model is a theory which suggests domestic violence follows a pattern. First there is an explosive outburst followed by apologies and calming down, then with normalcy where everyone ignores the dysfunction followed by rising tensions and then resulting again in an explosive outburst.
Law enforcement is likely to think you’re merely in the clutches of the cycle of violence when you tell them you “don’t want to press charges.”
The Duluth model has some major issues – but this doesn’t mean the authorities aren’t big believers in it.
So Should I NOT Ask the Prosecutor or Police to Drop the Charges if Doing So is Pointless?
This is the part of the blog where I inform you I can’t tell you what to do or what not to do (especially not being your lawyer and also through a one-sized fits all blog and not knowing any specific facts of your case).
There is also nothing wrong with talking to the prosector in these instances either. They really do want to help you. They may just see your problem differently than you do. It’s not inappropriate for you to contact an attorney first if you feel the need. Your spouse’s lawyer probably shouldn’t be advising you on this topic as it probably constitutes a conflict of interest.
It’s important to be honest with prosecutors or police if you do speak with them after an arrest for domestic abuse or assault has been made where you are consider the victim or complaining witness.
*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization. He is recognized as a Texas Super Lawyer by Thomson Reuters.