“The Victim is Not Pressing Charges” – What Does that Mean?

In Uncategorized by Garrett, Walker, Aycoth & Olson, Attorneys at Law

“The victim is not pressing charges” is a phrase often heard when law enforcement or prosecutors are not pursuing criminal charges when potential criminal activity has drawn public attention. Recently, this phrase (or it’s equivalent) has been invoked frequently in the public discussion of Will Smith slapping Chris Rock during the 2022 Oscars. However, this laymen’s phrasing misses the mark. A close reading of the LAPD’s statement makes this clear. The LAPD released the following statement: “LAPD investigative entities are aware of an incident between two individuals during the Academy Awards program. The incident involved one individual slapping another. The individual involved has declined to file a police report. If the involved party desires a police report at a later date, LAPD will be available to complete an investigative report.” Note that the LAPD does not use the phrase “press charges” but rather discusses the filing of a police report. Quite simply, this is because it is the government that presses charges in a criminal case, not the crime victim. The criminal defense attorneys at Baldauf Masser, LLP defend against criminal charges made by the government, not the alleged crime victim. And police frequently complete police reports when there is no specific victim to a crime (like a DUI charge) or when a victim is or becomes uncooperative with an investigation.

Criminal Cases are Between the Government and the Defendant

Criminal cases are filed by a prosecutor on behalf of the relevant government jurisdiction (either the state or the United States) against a criminal defendant. That’s why the cases are called State v. John Doe or the United States v. John Doe. This contrasts with civil cases, where the victim of a tort or contract breach must file the case as the plaintiff. As a practical matter, the lack of cooperation from the victim of a crime can make it difficult for the government to prove their case. But this is not the case when a crime was committed in front of an international TV audience. What Will Smith did on television likely constitutes a battery. Battery is a harmful or offensive touching without consent. Simply, the police and prosecutors in Los Angeles could probably pursue charges for battery if they wanted to. And pursuit of such charges without cooperation of the alleged victim is not uncommon, particularly in domestic violence cases.

Domestic Violence charges are Pursued even when the Alleged Victim is Uncooperative

Domestic violence charges are a common instance where the alleged victim may choose to not cooperate with the police investigation. While this can make the investigation more difficult, it does not prevent police and prosecutors from pursuing these charges or seeking a no-contact order between the defendant and alleged victim. Often, there are statements made during a 911 call or during police interactions immediately following the alleged incident which are sufficient to pursue these charges even if the alleged victim subsequently chooses not to cooperate with the investigation. In addition, if medical treatment from paramedics was required this can result in evidence which may support such a charge. Finally, if the defendant contests the charges the prosecutor can subpoena the alleged victim to testify at trial. While the marital privilege can potentially be invoked to limit testimony about statements made by the defendant from the alleged victim (if the couple are married), this privilege does not apply to testimony about actions (rather than statements). Domestic violence charges are a good example of when the government can pursue charges even if a victim is uncooperative. 

“Pressing Charges” is a Misleading Phrase

As discussed above, it is the government rather than the alleged victim that presses charges in a criminal case. The use of this phrase in the criminal context is misleading and creates the impression that the government will only pursue charges when that is the alleged victim’s desire. That is not true in domestic violence cases and is not true, as a procedural matter, as it relates to The Slap. While a lack of cooperation from the alleged victim can make a prosecution more difficult, it is not an insurmountable hurdle. The choice by the LAPD and Los Angeles prosecutors not to pursue charges against Will Smith is simply that: a choice. While prosecutors have discretion about which cases they pursue, the invocation of such discretion to shield a rich public figure from prosecution for a likely crime which was seen around the world invites similar violence from those offend by statements who are far less likely to avoid being charged. Such invocation of prosecutorial discretion to shield a public figure invites obvious questions about whether “equal justice under the law” is a principle which prosecutors live up to or simply a phrase with as little meaning as “the victim is not pressing charges.”