Don’t Blame the Prosecutors

Without Janay Rice, they didn’t have a strong enough case.

Photo by Ronald Martinez/Getty Images

Ray Rice may have gotten off easy by avoiding an aggravated assault conviction, but his case is far from unique.

Photo by Ronald Martinez/Getty Images

While Roger Goodell and the NFL scurried this week to come down hard on Ray Rice, New Jersey prosecutors are standing by their handling of the criminal case against the now-former Baltimore Ravens running back. A domestic violence advocate in New Jersey, however, told ESPN she was “stunned” and “outraged” by the resolution of the criminal charges Rice faced for punching and knocking out Janay Palmer, his girlfriend at the time, who has since married him. I’m trying to figure out if I feel the same way.

Rice is not going to prison. If he doesn’t get in trouble for another infraction in the next year, his record will likely be wiped clean. Does this suggest he got a special star-athlete deal, despite protestations to the contrary by the prosecutor’s office? And what should the legal consequences be for a man who is caught on video clocking his girlfriend in the face in an elevator, spitting on her, and then dragging her limp body into a casino hallway?

At the outset Rice’s case showed the strides the criminal justice system has made in handling domestic violence—and how videotapes push toward indictment. The police charged Rice with assault last February, following the incident in the elevator. A grand jury then increased the charges to aggravated assault-bodily injury in the third degree, probably after seeing the tape. If convicted, Rice would have faced a sentence of three to five years.

This part of the story is a long way from decades past, when police often ignored evidence of battering. “We’ve progressed from the belief that domestic violence is a private family matter to treating it as a crime that should be prosecuted,” Kim Gandy, president and CEO of the National Network to End Domestic Violence, told me over the phone. “It is 100 times better than it was 20 years ago,” said Karen Tronsgard-Scott, executive director of the Vermont Network Against Domestic and Sexual Violence. When we spoke she had just landed in Washington, D.C., for a celebration of the 20th anniversary of the Violence Against Women Act, which she credited for much of the shift.

What happened after Rice was charged, however, is more questionable. His lawyer asked for and got what’s called pretrial intervention—a chance to avoid a conviction if Rice fulfills a set of requirements ordered by the court. Most states have a remedy like this for first-time offenders. It’s like a one-time Get Out of Jail Free card—a chance to come away with a clean record if you do as you’re told and stay out of trouble for a prescribed amount of time. In Rice’s case, the prosecutor and the judge agreed to pretrial intervention with the requirements of anger management counseling and probationary supervision for a year.

Is that an unheard-of outcome for an offender who did what Rice did? New Jersey’s court rules say that when a defendant who applies for pretrial intervention has “deliberately” committed a violent crime, he or she should “generally be rejected.” But that doesn’t mean this kind of outcome hasn’t happened in other domestic violence cases. “It’s not all that unusual,” said Jane Shivas, executive director of the New Jersey Coalition for Battered Women. She pointed out that pretrial intervention involves both a carrot and a stick. It offers a chance for rehabilitation, while holding on to the leverage of prosecution for the original charges if the offender blows it again. “I certainly believe people can change learned behavior, and they should have the opportunity to do that, and be held accountable at the same time,” Shivas said.

Still, Shivas raised two concerns about the use of pretrial intervention in Rice’s case. The first is that the anger management counseling he will receive appears to be general in nature, based on many news reports, as opposed to specifically aimed at the mindset of domestic abusers. Rice should be going to a batterer intervention program, Shivas said—counseling for people who hit their partners as opposed to getting into a fight at a bar. “There’s a distinction in who their target is,” she said. “You ask, ‘When you’re mad at your boss, do you hit your boss?’ and they say, ‘Well, no.’ They can control their behavior.” Batterer intervention focuses on why an abuser does not control the impulse toward violence against a partner. If a program is intensive, it can be effective, Shivas said. (I called the prosecutor’s office to check on the nature of Rice’s court-ordered anger management program and didn’t get a response—I’ll update if I hear back.)

Shivas was also disturbed by what she sees as a mismatch between the details of Rice’s actions and the disposition of his case. This is the power of video: The footage inside the elevator, and after the assault, is worth many more than a thousand words in understanding what unfolded during the punch and afterward. You see the impact of a large man hitting a smaller woman. She is just out cold. And then you see Rice moving Palmer’s body with apparent callousness. “You see him drag her out of the elevator, leave her face-first on the ground, and poke her legs with his foot,” Gandy said. “He’s not bending down to see if she’s OK. If he hit her out of a split-second reaction, you’d have seen an expression of shock. Instead, he seems totally nonchalant.” The callousness, Shivas said, is what convinced her that pretrial intervention was the wrong call in Rice’s case.

Gandy made a broader argument: Pretrial intervention should only be available for nonviolent crimes, she said—especially in domestic cases, given how frequently the patterns tend to repeat. She also pointed out that by acting in public, Rice signaled that he wasn’t worried about consequences. “And when there’s a failure to prosecute for a public assault like that, I think it endangers the victim of the assault and emboldens the abuser,” she said.

There’s another person whose actions matter, though, and that’s Janay Rice. As Jodi Kantor wrote in the New York Times, “it’s not at all clear that she views herself as a victim of abuse.” Palmer married Rice the day after he was indicted for hurting her. She has stood by his side at news conferences and rallied to his cause on social media. She tried to take the burden off Rice’s shoulders in the spring when she said, “I do deeply regret the role that I played in the incident that night.” Rice and Palmer met in high school. They have a child together. She’s probably financially dependent on him. She has a lot of reasons to back him up. But that doesn’t mean prosecutors should take her statements at face value, Gandy said, or excuse Ray Rice because Janay Rice is still with him. Maybe she’s staying because she’s afraid to leave. When domestic violence ends in murder, it’s often after the victim tries to get out of the relationship.

At the same time, when a victim refuses to cooperate with the prosecution, the calculus for prosecutors shifts away from trial and conviction. “You could try to prosecute based on the videotape alone, but it ties the hands of the prosecution if they don’t have a complaining witness who will cooperate,” said Tom Ullmann, a veteran public defender in Connecticut. “Jurors like to see real people come in and testify. You could see the prosecutors here saying, ‘Let’s get what we can because it’s very clear she’s in his corner.’ ” It may seem cut-and-dried with the videotape. But in the courtroom, witnesses still matter.

Domestic violence advocates have succeeded in reforming many elements of the criminal justice system. Abusers can and should be arrested and charged independent of the wishes of their victims. And the Ravens and the NFL ultimately made Rice pay. But Rice’s case also shows that for a first-time offender, even one whose brutality is captured on camera, punishment, at least in part, is still in the hands of the victim. Prosecutors aren’t going to pursue a case they don’t feel confident they can win. In the end, I’m not sure we can be too outraged about that.