by Jim Fisher

STAFF WRITER

Domestic violence is America's dirty little secret.

Everyone knows it happens, but no one wants to admit it. Whether it's because of pride, love or fear, victims of domestic violence often are hesitant to come forward. Even more often, they later recant their stories.

All of this makes it very difficult for the people who are trying to prevent domestic violence, protect the abused and prosecute the batterers.

While not every case can be prosecuted, perhaps the most frustrating thing for police and prosecutors is when a victim is unwilling to participate in the case.

"The law is set up to proceed with or without a victim and to protect the victim," said Clarksburg Police Chief John Walker. "It's always been, in any court system, a reluctance to proceed without a victim. It's frustrating, but it's been going on so long that I think everyone's used to it."

After a domestic incident, it's not unusual for a victim to ask police officers to drop the charges, Walker said. But Clarksburg, like most other police agencies, has a policy against that, Walker said.

Likewise, prosecutors often don't want to drop the charges if there is clear and convincing evidence that a crime has been committed, said Prosecutor Joe Shaffer.

"Probably three or four times a week, we get calls from victims who do not want to follow through with prosecuting domestic violence cases," Shaffer said. "If there are particularly egregious fact patterns ... anything more than pushing or shoving, we try to meet with them.

"There have been no instances that I can think of where there was intrusive contact that went unprosecuted simply because the victim was unwilling to proceed," he said.

There is even a belief that magistrates will not allow a case to go to trial if there is no victim. However, Chief Magistrate Mark Gorby said this is literally impossible, as a magistrate can only dismiss cases if a motion is filed.

Over the past several years, more and more cases are seeing the inside of a courtroom even without a victim. Physical evidence, police testimony, pictures and written statements all can be enough to take to trial, even though the victim's testimony is preferable, Shaffer said. The hard part is deciding if the case is winnable without that testimony.

"In a nutshell, and I'm not by any means an expert, we had problems in the past before the law was changed," said Harriet Sutton, executive director of HOPE Inc., referring to a 2000 state Supreme Court opinion.

In state v. Harris, the court held that police testimony as to a victim's statements in some cases is admissible under the "excited utterance" hearsay exception.

In that Ohio County case, a police officer testified that the victim stated several times during the course of the night that the defendant had beaten her several times. Because the judge ruled the victim had made the statements as a result of a startling event, was reacting under the stress of that event and the statements related to the incident, the officer's testimony was admissible.

However, the officer's testimony that an anonymous person in the crowd also said the defendant had beaten the victim was not admissible since there was no way to determine whether that person had personal knowledge of the incident, the court opined.

Hearsay is defined as a statement by a person that is not trial testimony and is offered as evidence to prove the statement to be true. For instance, if the defendant had been on trial for something other than domestic battery, the officer's testimony about the victim's statement would not have been hearsay.

"The way the law is written, (domestic violence) is the only misdemeanor crime not committed in an officer's presence that you can make a warrantless arrest," said Harrison County Magistrate Tammy Marple. "If an officer goes to a scene, they pretty much have to make an arrest."

Staff writer Jim Fisher can be reached at 626-1446 or by e-mail at jfisher@exponent-telegram.com