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Posted by chillaxin Monday, March 18, 2019

Victims Don’t Have Power to Dictate Criminal Charges

I honestly have no idea if Allkpop will even post this but I think there is a need to clear up what appears to be a lot of uninformed or misinformed readers. I see many comments where readers say a victim is fishy or shady because if they were victimized they would pursue criminal charges rather than money. Thinking this way is beyond problematic.

As an attorney in the US,I would like to provide the public with information as to how the justice system works in the US. In addition, I welcome attorneys from other countries to share any similarities or differences with their countries. An informed public would be less quick to jump to wrong conclusions.

First of all, victims have little to no say regarding whether or not the perpetrator is charged with an actual crime. I know everyone seems to look at TV shows and movies and they think the victim controls this by either testifying or not testifying. This is not the case.

The prosecuting attorney, not the victim, is the person that decides whether or not to pursue criminal charges. The main prosecutor, in my county that would be the District Attorney, is presented with a case file by the police and that District Attorney then decides after reading the file, possibly speaking with the victim, whether or not they will indict or charge the perpetrator with any criminal charges. The victim has no say in this. In an ideal world District Attorneys are all about pursuing justice for the victims, putting the guilty in jail or prison, making the world safer, etc. In reality, the District Attorney is selected by a local election. This means campaign money and track record is what gets them re-elected. I would love to hear about places where the head prosecuting attorney is not an elected official because I would think that would be a better system. However the only other method I am aware of is appointment which opens the system up to is the person appointed because they’ll do what their local government officials or state officials want them to do. It seems like a no win situation.

So to get re-elected most District Attorney’s are only pursuing those cases that they have no doubt they can win at a cost that doesn’t deplete already limited taxpayer money. That’s right, your tax money is what pays for those trials. So if a victim has a murky past, doesn’t have the right appearance (yes ethnicity and socioeconomic background does play a role), or is still so mentally shaken that they have difficulty testifying, they won’t pursur criminal Charges because they may not win. Wasting tax payer money on a lost case does not lead to reelection.

Here’s an example. In my area there are not a lot of Asian people. The typical juror is going to be a white male in his late 30s and 40s who, if you are lucky,  has at least  gone on vacation at least once in another state to get exposure to people that do not look just like them. This allows them to see that the stereotypes on TV and movies are not reality for most minorities. For example, not all Asian women work in massage parlors or nail salons. (Yes sadly I have literally heard this said out loud on more than one occasion! I wish that wasn’t reality, you have no idea.) So if an Asian female is testifying that she was raped by a white guy, she is not a model college student or in some sort of professional job, and heaven forbid she isn’t a virgin, that jury is unlikely to find that white male perpetrator guilty. In fact, those white male jurors are likely to think she is probably an illegal immigrant who is a “massage worker” or prostitute who tried to rip off or blackmail her John. And heaven forbid if the poor woman was brought over here under false pretenses and forced to work in a massage parlor or prostitute because those jurors are going to have zero sympathy whatsoever even though she is a total victim.

Keep in mind this is what African-Americans, people who are US citizens, experience everyday when it comes to the US justice system. Think about it. When you see a US story about a missing girl or woman, what does that girl or woman typically look like? She isn’t usually black, Asian, Latina, etc. She’s usually white. Why? Because that’s what the public pays attention to when it comes to news stories. That’s what drives news show ratings. People pay attention to Leslie Washington, the blonde 20 year old college student from Colorado from a middle class family, not little Maria Hernandez who’s missing from Houston, Texas whose parents are migrant workers, landscapers, or that  run a restaurant, even when those parents are actual business owners!

Next, the burden of proof in a criminal case is extremely high, beyond a reasonable doubt. This means that if the defense provides any possibly reasonable explanation why their client is not guilty, the jury has to find them not guilty. The idea behind this is that it is better to set a guilty person free, than to incarcerate an innocent person. Unfortunately we’ve seen that plenty of innocent people do go to jail and surprise! Take a look at what most of those people look like! So there is every possibility that you can charge someone criminally, but fail to convince the jury that you’ve met that burden of proof. I won’t even get into the statute of limitations problem with many criminal matters combined with the time it takes to gather enough evidence to meet the burden of proof.  However, in a civil case, the burden of proof is lower. Jurors are more likely to rule in favor of a victim because “it’s just money” and it isn’t incarceration. The victim gets some justice because there has been a public acknowledgement that they have been wronged and hopefully that money can help them get the counseling and assistance they need to deal with the trauma they’ve experienced.

Lastly, I want to say, I know this may be shocking to many, but this is our justice system. It isn’t perfect. It’s good, but it is flawed because it is administered and run by human beings so it will always be flawed. Humans have biases, prejudices, etc. I say this as someone who experienced being robbed at gun point who received no justice from the judicial system because at the time I was just an insignificant minority teenage girl walking home in  a not so great neighborhood. I was fortunate in the sense that I was a good kid, great student and well known and loved by my teachers, who along with my family raised hell with the authorities for not handling my case.  Keep in mind that I also say all of this as an attorney who has both prosecuted and defended people as a court appointed attorney, and a civil defense attorney. 

If I hope you take anything away from my opinion article it is this:

1. Don’t expect victims to be perfect when the justice system is far from perfect. 

2. Anyone can be a victim. Just because someone has a less than perfect past, doesn’t mean they can’t be a victim, or that they were asking for it.

3. Victims have the least power. They do not have the power to make the person that victimized them be charged criminally.

4. Stop victim blaming or assuming they are money hungry. Are there some out there that want money and are playing the system, sure. The system is not perfect. But for every one of those individuals you have 10 others that are just trying to get some public acknowledgement that they have been victimized. Unfortunately often seeking money damages is their only option.

Yes I’ve written this very quickly so please feel free to point out spelling and grammatical errors. I just needed to get this off my chest because it weighed heavy and I have just been so disappointed in reading the incorrect assumptions that people seem to have about the justice system. Thank you!

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    hohliu Monday, March 18, 2019 5
    Monday, March 18, 2019

    Thank you for your time and putting this article together... I do noticed there are comments on asking victims to send their perpetrator to jail in civil cases that is clearly misinformed. Especially as the court has acquitted the perpetrator. The victim can sue for financial benefits in civil courts but not jail terms.

    I wonder if SK legal system is similar?

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    Alice19 Monday, March 18, 2019 2
    Monday, March 18, 2019

    Great explanation. I'm living in Sweden right now, and only five days ago there was a documentary about this. This Tv show have 40 journalist and report about a different issue very week and started back in 2001. The information this documentary shared was:

    40 % of all reported rapes is dismissed without even interrogating the rapist, and those suspects who eventually was interrogated happened about 10 months later. Only 7,4 % of reported rapes results in a court case. Meaning less then 1 in 10 results in someone having a possibility of justice through court. It also depended on what area the rape was being reported, some 25 % and in some other areas only 5 % led to a court case. Multiple police officers are also recorded saying that rape doesn't have high status, so it's usually dismissed because of other crimes needing the tax money. (the comment continues below:)

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