Criminal Law Blog
February 18, 2005
The question is this: My girlfriend accused me of committing an assault family violence against her, but later she decided she wanted to drop charges. Then the County Attorney said they were picking up the charges and prosecuting me. Can they do that?
The short answer is “yes, they can.”
Actually, your girlfriend does not have a right to drop the charges. She should feel absolutely free to tell the prosecutor how she feels about you being prosecuted, but she has to understand that she does not control the decision about whether or not you are prosecuted. It might feel frustrating that she can’t simply sign an affidavit of nonprosecution and make your case go away. But that is how it is.
In most domestic violence cases, there are three phases. The first phase is the “tension building” phase. The tension building phase ultimately results in the “explosion of violence” phase and that is when the alleged offense occurs. Next is the “honeymoon phase”, during which the batterer (who is frequently presumed to be male) will do just about anything to get the victim to drop the charges.
Prosecutors who handle assault family violence cases don’t find it surprising when the alleged victim of an assault wants to have the case against his or her significant other dismissed. Their explanation is that the alleged victim and the defendant are in the “honeymoon” phase.
There is an important difference between a criminal case and a civil case. In a civil case, the victim of a car accident is his lawyer’s boss. In a criminal case, the State of Texas brings charges against someone, not the complaining witness or the victim. The complaining witness or victim have no power whatsoever to dismiss cases in criminal courts in the State of Texas. Most prosecutors will talk to the victim or complaining witness to find out how they feel about prosecuting the case, but a good prosecutor does not simply hand over the keys to the office and let the victims run the shop.
So, if the victim in your case has told you that he or she has “dropped charges,” don’t get too excited. At most, they’re telling you that they signed an affidavit of nonprosecution or have told the prosecutor that they don’t want to you to be prosecuted.
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