It is the first thing many people ask after a domestic violence arrest, and it comes from both the arrested party and the alleged victim. The accused arrestee asks it hoping for relief, and person who called the police asks it often filled with regret. The question is the same: can the alleged victim just drop the case?
The answer surprises almost everyone. No. In California, the alleged victim does not control a domestic violence prosecution, cannot dismiss it, and is not represented by the prosecutor who is pursuing it. Understanding why requires understanding who the players are, how the law got this way, and a set of rules about testimony and the Constitution that decide these cases far more often than the victim’s wishes do.
Can The Victim Drop The Case: The Short Answer
A criminal domestic violence case belongs to the government, not to the alleged victim. It is prosecuted by the County’s District Attorney on behalf of the People of the State of California, and only the District Attorney, or the court, can dismiss it. The alleged victim is a witness, not a party, and the prosecutor does not represent the alleged victim’s interests, a distinction that has enormous practical consequences.
This means an alleged victim who wants the case to end cannot simply drop it. What they sometimes decide to do is decline to participate, by refusing to testify or, in some circumstances, by asserting the Fifth Amendment. Whether that ends the case depends on what other evidence exists, and above all on whether the alleged victim’s earlier statements can be used even if they never take the witness stand to testify, which is a constitutional question governed by the Sixth Amendment’s Confrontation Clause. Those are often the real world mechanics, and they are very different from “dropping the charges.”
Who Is Who: The Roles In Domestic Violence Criminal Cases
The confusion at the heart of this subject comes from mixing up roles that the law keeps strictly separate.
Alleged Victim The alleged victim is the person the government says was abused. They are a witness and a complaining party, but they are not the prosecutor and not the prosecutor’s client. Their preference about whether to proceed is something a DA may consider, but it does not control the case.
Police The police are government agents who investigate, document, and arrest. In domestic violence criminal cases, they often operate under preferred arrest policies, discussed below, which limit their discretion to simply smooth things over at the scene.
District Attorney The County District Attorney’s Office (or prosecutor) is a government entity that decides what to charge and whether to proceed in court, and prosecutes on behalf of the People of the State of California. The district attorney (DA) does not represent the alleged victim. We explain how the DA’s charging decision is made, and how it can
sometimes be influenced before charges are filed, in our article on preventing domestic violence charges.
Accused The accused or alleged perpetrator, is the arrestee and if the case is ultimately filed in court, the defendant.
The single most important consequence of these roles is this: because the DA does not represent the alleged victim, an alleged victim who contacts the DA hoping to help the accused “drop the case” may be misunderstanding the role of the DA. The DA’s job is to prosecute when they believe that is appropriate, and anything the alleged victim says can be used toward that end. An alleged victim with their own goals, whether to protect the accused or simply to protect themselves, is entitled to hire their own attorney who will directly represent the alleged victim’s stated interests.
The History: When Victims Really Could Drop A Domestic Violence Case
For much of the twentieth century and before, domestic violence was treated as a private matter. Police called to a home for a “domestic” frequently defused the situation informally. An officer might tell the man to take a walk around the block, to cool off, to spend the night at a hotel, and leave it at that. If the victim said they did not want an arrest, that usually ended the matter. The case, in any practical sense, was the victim’s to drop, because the system generally did not treat the conduct as a real crime against the state,
That approach came to be seen as a failure, because it left victims in danger and treated repeat domestic violence as a series of private spats. Reform came through lawsuits and legislation. A landmark civil case, Thurman v. City of Torrington in 1984, in which a woman severely injured by her husband sued a police department for failing to protect her, helped establish that police could be liable for treating domestic violence less seriously than other crimes, and it accelerated a national move toward preferred arrest policies.
Over the following years, police departments adopted policies requiring or strongly favoring arrest where probable cause of domestic violence existed, removing the officer’s old discretion to walk the abuser around the block. Prosecutors adopted their own policies favoring prosecution, sometimes called no-drop policies, precisely so that a case would not evaporate the moment a frightened or dependent victim asked to drop it.
The famous O.J. Simpson case in 1994 poured fuel on this shift. Whatever its verdict, the case put domestic violence, and the pattern of prior unaddressed incidents that often precedes a homicide, on every front page in the country, and it hardened both public attitudes and prosecutorial resolve to treat domestic violence as a serious crime to be pursued regardless of the alleged victim’s wishes.
The result is the modern domestic violence system in California. The discretion that once generally let a victim drop a case was deliberately taken away, because too often the victim asking to drop it was the victim who would be hurt again. That reform protects many people. It also produces the hard cases this article discusses, where the person the state calls a victim does not want the prosecution to go forward, and the state proceeds anyway.
Refusing To Testify & The Fifth Amendment
When an alleged victim does not want a case to proceed, and the DA will not dismiss it, the case often turns on whether the alleged victim will testify, and whether they can be made to.
Refusing To Testify An alleged victim of domestic violence sometimes refuses to testify, and California law gives them a protection almost no other witness has. Under Code of Civil Procedure section 1219(b), a court may not jail a domestic violence victim for contempt for refusing to testify about the domestic violence. The court can refer the victim to a domestic violence counselor first, and other consequences such as a fine remain theoretically available, but the jail threat that coerces ordinary witnesses into testify when they do not want to is off the table for a domestic violence victim. This is a significant and deliberate protection that was enacted after alleged domestic violence victims were jailed as punishment for refusing to testify against their alleged abusers, an outcome that the California Legislature found intolerable.
An Alleged Victim’s Refusal Once Carried Substantial Real & Threatened Risk Before that protection existed in its current form, a domestic violence victim who refused to testify faced the same contempt power as any other witness, which meant jail until they decided to testify against their alleged abuser. Prosecutors used the threat to extract unwilling testimony from alleged domestic violence victims. An alleged victim who did not want to testify could be told, in effect, testify or go to jail. The threat was the leverage, and where the threat failed, prosecutors did seek to have the victim jailed to compel testimony. The 2008 protection exists because that practice was real and common.
The Fifth Amendment There is way that alleged victims of domestic often end not testifying without involving the issue of contempt. If an alleged victim’s original statement to the police was false, then truthful testimony correcting it might expose them to criminal liability, because causing a false police report to be filed is in theory a crime under Penal Code section 148.5. That exposure, even as a theoretical matter, may give the alleged victim a valid basis to assert the Fifth Amendment privilege against self-incrimination and decline to testify at all. The Fifth Amendment is a constitutionally protected right and asserting it, often with the assistance of their own attorney, sometimes results in an alleged victim not testifying after invoking their right to remain silent under the Fifth Amendment. A witness who validly asserts the Fifth cannot be punished for it. The prosecution’s only tool to overcome it is a grant of immunity, and offering immunity has its own costs, as the case below shows.
Either way, whether by protected refusal or by a valid Fifth Amendment assertion, the alleged victim can become legally unavailable to testify. This raises the question that actually decides many of these cases that proceed to contested trial.
The Constitution, Crawford & The Confrontation Clause
If the alleged victim never testifies, can the jury still hear what they told the police? This is the question that determines whether a case survives an uncooperative victim, and the answer comes from the Sixth Amendment.
The Sixth Amendment gives a defendant the right to confront the witnesses against them. In Crawford v. Washington in 2004, the United States Supreme Court held that this right bars the use of “testimonial” out-of-court statements by a witness who does not testify and whom the defendant has not had the chance to cross-examine. So if the alleged victim is unavailable, their testimonial statements to the police generally cannot be used against the defendant.
Much then turns on which statements are “testimonial,” and the Supreme Court generally drew that line in a pair of cases decided together in 2006.
In Davis v. Washington, the statements were made during a 911 call while the alleged violence was still unfolding. The Court held that statements made to enable police to meet an ongoing emergency are not testimonial, and can be admitted even if the victim never testifies. A frightened victim describing a recent attack in progress to a 911 call dispatcher sometimes leads to the admission of that 911 call, depending on many factors, even if the alleged victim never testifies in front of the jury.
In Hammon v. Indiana, decided in the same opinion, the statements were made to an officer after the emergency had passed, describing what had happened for the record. The Court held those statements were testimonial, and barred if the alleged victim was unavailable for testimony at trial, because their primary purpose was to establish past events for a later prosecution rather than to meet an ongoing emergency.
The practical line for domestic violence cases is therefore somewhat clear, although caselaw in this area is often changing. The 911 call made during an “ongoing emergency” often survives the victim’s absence and is heard by the jury. The in person narrative given to the responding police officer after things have settled often does not. Whether a domestic violence case can be proven without the victim frequently comes down to which side of that line the key statements fall on, together with whatever other evidence exists: the defendant’s own admissions if they survive Miranda and voluntariness challenges, injuries, photographs, third-party witnesses, and physical evidence.
A Past Case: When The State Was Willing To Jail Its Own Victim
Early in my career, as a young public defender and before the current version of section 1219(b) existed, I saw exactly how far the system would go. There was an alleged domestic violence victim who repeatedly refused to testify against her boyfriend, the man the state accused of abusing her. The District Attorney wanted the judge to jail her until she agreed to testify. At that time, before the protection was enacted, that was a real threat, and it was used.
I was appointed to represent her and when I looked at the case, I found something important. She had given a statement to the boyfriend’s investigator that entirely contradicted her original statement to the police. That contradiction mattered, because it meant that truthful testimony could potentially expose her to criminal liability for the inconsistency in her accounts per California Penal Code Section 148.5.
So I advised her of something the threat of jail had obscured. She had the right to assert the Fifth Amendment. And asserting the Fifth was a far better path than simply refusing to testify, because refusal, in that era, exposed her to jailable contempt, while a valid Fifth Amendment assertion could not be punished at all. The judge agreed that her assertion was valid.
The District Attorney was furious. The DA had one option left, to grant her immunity and compel her testimony that way. However immunity would have told the jury the prosecution had needed to strike a deal with its own key witness, handing the defense a gift. In the middle of trial, rather than risk a verdict on those terms, the DA dismissed the case.
That case taught me something I have never forgotten, and it is the real lesson of this whole subject. There are many ethical, well-meaning prosecutors. However, they do not represent the alleged victim, not in theory and not in practice. In that case, the prosecutor was willing to put a woman she believed to be a genuine victim of domestic violence in jail, in order to convict the man she believed had abused her. The person the state called a victim was the person the state was prepared to jail.
A Hypothetical: The Parent Who Wanted To Drop Charges Against Her Son
The principles above are not abstract. Consider a common situation, drawn from the kind of question we are asked regularly.
A mother’s adult son, who lives with her, is involved in a violent incident and is charged with a serious crime, felony elder abuse with great bodily injury. The mother never wanted charges filed. She wonders whether she is protected from being forced to testify, and whether her earlier statements can be kept out.
First, she cannot drop the case; that power belongs to the DA, not to her, and contacting the DA to help her son would be unwise because the DA does not represent her. She needs her own attorney, who can communicate with her son’s attorney and pursue her actual goals. Second, section 1219(b)’s protection against being jailed for refusing to testify reaches beyond spouses and dating partners, because it borrows the Family Code’s broad definition of domestic violence, which includes close relatives, so a parent and adult child living together can fall within it. Third, if her original statement to the police was false, she may have a valid Fifth Amendment basis to decline to testify, subject to the immunity dynamic described above. And fourth, even if she is unavailable, some of her statements may still reach the jury if they are non-testimonial under Crawford and there was some applicable hearsay exception, while her testimonial statements would be barred, and the case might still be proven through her son’s own admissions or other evidence. That is the full landscape a person in her position needs to understand, and it is why she needs counsel of her own.
What This Means If You Are Involved In A Domestic Violence Case
For the accused, the lesson is that a case does not disappear because the alleged victim wants it to, and a defense built on “the victim won’t testify” is incomplete. The case may proceed on a 911 call, admissions, and physical evidence regardless. A real defense addresses all of it. We discuss the broader defense in our related articles, and the interaction with any restraining order in our article on DVROs and criminal cases.
For an alleged victim with their own goals, whatever those goals are, the lesson is that you are not represented by anyone in the case unless you hire your own attorney. The DA is not your lawyer. Your own counsel can communicate with the parties, help you understand your rights around testimony and the Fifth Amendment, and pursue your interests, which no one else in the courtroom is there to protect.
Frequently Asked Questions
Can An Alleged Victim Drop Domestic Violence Charges In California?
No. Only the District Attorney or the court can dismiss the case. The alleged victim is a witness, not the prosecutor, and does not control the prosecution. They can decline to participate with potential legal consequences, but that is different from dropping the charges.
Can A Domestic Violence Victim Be Forced To Testify?
They can be subpoenaed, but under Code of Civil Procedure section 1219(b) they cannot be jailed for contempt for refusing to testify about the domestic violence. Other consequences like a fine may remain, but the jail threat that compels ordinary witnesses does not apply.
Can The Case Continue If The Victim Refuses To Testify?
Often yes. If the victim’s statements during an ongoing emergency, such as a 911 call, qualify as non-testimonial under Crawford v. Washington, they can be admitted even without the victim testifying, and the case may also be proven through the defendant’s admissions, injuries, and other evidence.
What Is The Difference Between Refusing To Testify And Taking The Fifth?
Refusing to testify is protected from jail for a DV victim under section 1219(b) but can carry other consequences for contempt, including referral to a counselor and a monetary fine. Asserting the Fifth Amendment, available where truthful testimony could expose the witness to criminal liability such as for a false report to police, is a constitutional right that cannot be punished at all when it is validly asserted, though the prosecution may respond with a grant of immunity.
Does The District Attorney Represent The Victim?
No. This is the most important and least understood point. The DA prosecutes on behalf of the state, not the victim, and does not represent the victim’s interests. An alleged victim with their own goals is entitled to hire their own attorney.
If I Am The Victim And I Lied Or Exaggerated, What Should I Do?
Consult your own attorney about your rights, including the Fifth Amendment, before doing anything.
This article provides general information and is not legal advice. Every case turns on its own facts, and the issues here, contempt, the Fifth Amendment, and the Confrontation Clause, are complex and consequential. If you are involved in a domestic violence case as an accused or an alleged victim, consult a qualified attorney.