Witness Intimidation by Extended Family Members in Domestic Violence: Issues and Solutions
Witness tampering is a kind of obstruction of justice, but in the context of domestic violence, it falls under the category of crimes that are usually not punished. A mantle of family privacy which used to cover a spouses’ assault, threats of physical violence, or rape, may make practitioners reticent to consider imposing criminal penalties for witness tampering. Prosecutors may lose the testimony of their star witness because an abuser, or his or her family, is encouraging a victim-witness to change her, or his, story, especially when coercion or threats come from a family member acting as a go-between for the abuser. I seek to examine the legal and social implications of this possible unspoken exception to the doctrine of witness tampering, and the consequences of failing to hold accountable batterers and their families in the wake of Giles, Davis, and Crawford. Formerly, prosecutors of domestic violence prosecutions could use evidence of domestic violence, such as statements to police about the incident, to prosecute even if the witness/ victim was uncooperative. Hearsay was admissible if probative and reliable, and the witness was unavailable. First, I would like to prove the existence of this and other obstacles to prosecuting perpetrators of domestic violence, and second, to explore the reasoning behind it. Is there a legal justification for prosecuting witness tampering in other contexts, such as mafia or gang prosecutions, but not when the tampering 3rd party is trying to preserve a family or marriage instead of an illegal enterprise? Is there a hidden mens rea requirement that allows selective prosecution of only certain group criminality? I see problematic implications to prosecuting only some witness tampering, and seek to explore possible solutions from other prosecutions against groups that seek to protect themselves, so that a prosecutor can continue their prosecution when a family has closed ranks.