Taking back (“recanting”) your domestic violence statement will not automatically cause the criminal case to be dropped – especially if prosecutors have other evidence that abuse occurred. Plus, the police may then arrest you for giving false statements, obstructing justice, perjury, or even contempt if you fail to show up to trial.
To reduce the chances of you being prosecuted for retracting your domestic violence statement, try to convey that you thought you were telling the truth at the time you gave the statement, but you have since realized that what happened was an accident or that you misunderstood the situation.
If you admit to prosecutors you straight up lied, not only do you risk getting criminally charged – but also the prosecutors may not even believe you and will continue pressing domestic violence charges. In my experience, D.A.s presume that victims recant only because they are being pressured by family or simply want things to go back to “normal.”
If I recant, will the charges be dropped?
No, or at least not at first. When prosecutors bring domestic violence charges, they usually rely on more than just your 911 call, police report, or any affidavits you gave. They often have independent evidence that abuse occurred, such as:
- medical records/photographs/video of your injuries;
- medical expert testimony under oath that your injuries were not accidental;
- photos/videos of any property damage incidental to the alleged abuse;
- threatening messages by the defendant over text message, social media, email, voicemail, etc.;
- eye-witness testimony or other witness statements by third parties; and/or
- video surveillance footage of the domestic violence occurring.
So even if you stop being a “cooperating witness” and retract your original statement, the D.A. may still have a strong enough case to continue pursuing a domestic violence conviction. However, in my decades of experience defending against domestic violence charges, prosecutors will have a much harder time proving guilt beyond a reasonable doubt to a skeptical jury if you contradict your original story.
I had several domestic violence cases where the trial was just about to start, and last minute the prosecutor begrudgingly asked the judge to dismiss the charge because the victim failed to show up to testify against my client. This scenario is especially common in “he said, she said” situations where prosecutors have no independent evidence corroborating the victim’s accusations.
Why do prosecutors disbelieve recanting victims?
If you take back your domestic violence allegations, law enforcement will be suspicious that you are lying – especially if you had physical injuries. They may assume that:
- The defendant’s family is threatening to harm you if you do not withdraw your allegations;
- You want the defendant (usually a current or former spouse or girlfriend/boyfriend) out of jail and with a clean record so they keep their job and can continue earning money for your family;
- You are overwhelmed by the criminal justice system and just want everything to go back to how it was, even if it means you are in an abusive situation; and/or
- You blame yourself for what happened and feel bad for getting the defendant in trouble, which is common for domestic violence victims.
In truth, people fabricate domestic violence allegations all the time. Sometimes the accuser is simply angry at the defendant and wants to “teach them a lesson” by calling the police. Or perhaps the accuser is trying to gain the upper hand in a divorce or child custody family law court case. I have had cases where accusers actually self-inflicted their own wounds just to back up their false story.
Is there a way to recant without getting into trouble?
The best way to avoid criminal charges for recanting a previous statement is to claim that you believed your allegations at the time, but upon reflection you realized you were mistaken.
For example, perhaps the defendant never meant to touch you and what happened was a blameless accident, but at the time you wrongly presumed the defendant acted on purpose. Or perhaps you were intoxicated or suffering from a mental health episode when you made the police report, and it caused you to misremember and say untrue things.
Another tactic I use is when recanting statements to show that the police themselves are at fault for misreporting what happened or taking down your truthful words wrong. This way, the blame lies squarely with law enforcement, not you, for misstating what actually happened.
Victims do not decide whether criminal charges go forward. Prosecutors decide independently of whether the victim recants.
Are there penalties for recanting?
Possibly. If you recant your domestic violence statement, the police may react by arresting you for lying to them. In California, you may face misdemeanor charges carrying up to six months in jail and/or $1,000 for:
You can also be charged with perjury (PC 118) if you give sworn testimony that you then claim is untrue. This is a felony carrying fines of up to four years in jail or prison.
In the event you are subpoenaed for trial and fail to appear, the court can also hold you in contempt (PC 166). This is a misdemeanor carrying up to six months in jail and/or $1,000.
What if I’m a defendant, and the police coerced my confession?
I have had many innocent clients who fell prey to coercive police interrogation techniques, and they end up confessing to domestic violence even though were often the ones who called 911 and were victims themselves.
If you were coerced into confessing to domestic violence, I would demand the police’s body cam footage and any other video or audio recordings of the police’s interactions with you. My goal would be to use the police’s own words and actions against them to show that your “confession” was unlawfully extracted through undue influence and should be suppressed as evidence.
