concurring. While I agree that the facts in this case justify the trial court’s decision to dismiss on the basis of the court’s discretion, that discretion should be cautiously exercised in domestic violence cases, in particular, when the motion is predicated on the victims’ unwillingness to testify against their abusers.
In cases of domestic abuse, victims of battering often try to escape from their abusive partners, only to return once the immediate shock of the attack has receded or when the abusers “repent” and promise to change their behavior. All too frequently, these tragedies play out in the courts, as battered victims initially agree to testify against their abusers, only to drop the charges once the victims have convinced themselves that the abusive behavior was a passing aberration. Often, the victims have no income, nowhere to go, young children to consider, and may truly love their partners and believe that the future holds hope. Sometimes, if victims continue to press charges, they are further threatened by their abusers and drop the charges out of fear. Both police and trial courts are frequently frustrated by dealing initially with a distraught and injured victim who shows up weeks later to abruptly drop all charges.
In this case, the trial court exercised careful discretion, continued the case several times to be sure the pattern did not recur and that counseling continued, gave the victim time to think, and carefully questioned her motives in dropping the charges. Therefore, the judge did not abuse his discretion in dismissing the charges.
However, there may clearly be times that the prosecution should be permitted to move forward despite the victims’ objections, especially when a pattern of abuse continues and all the pressures previously mentioned weaken the victims’ resolve to pursue their abusers, or if the victims fear even greater retaliation if the case is pursued by the victims themselves. Society would never tolerate such assaults against total strangers. Such conduct should not be excusable or somehow less egregious because one is in a marriage or partnership. In these circumstances, the court must provide the forum to call abusers to account for their actions.