Case in point that was in the news:

"BART identifies man in viral video of racist attack on train", East Bay Times

A California man attacked a stranger while expressing his hatred of the victim's ethnicity.

Everything was caught on video. It seems like an open-and-shut case of a hate crime.

However, the victim refused to press charges, and this went no further (The perp might be barred from using BART in the future, but I doubt that they can enforce that)

What I don't understand, from the legal perspective, is why the case depended on the victim pressing charges here.

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    The victim doesn't have to "press charges". That's a TV trope that the news media have uncritically picked up.
    – PJB
    Feb 16, 2018 at 13:18
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    @PJB ...it depends. In many states, a victim will have to press charges on misdemeanor crimes, but not on felonies, in most states different classes of crime are handled differently with regards to charging rules (automatic charging in domestic violence cases, even with a victim that's hostile to police or prosecution action, for example), and in every state, law enforcement resources are limited, so a crime with an uncooperative victim generally loses priority for enforcement. So yeah, it's a trope that someone has to "press charges" for every crime, but it's built on a grain of reality. Feb 16, 2018 at 15:43
  • @HopelessN00b You are completely right. Also: in most countries there is a huge backlog of criminal and civil cases for the justice system, so many that they cannot all be prosecuted concurrently, hence some form of priority will be given.
    – Bakuriu
    Feb 16, 2018 at 18:15

3 Answers 3


Criminal charges are filed and prosecuted by the government, on behalf of the public, and there is no requirement for approval or cooperation by the victim. As a policy matter, a DA may decide to not charge a person in case the victim is unwilling (though less so in cases of domestic violence), perhaps because of the widespread impression that the victim has to "press charges" (which indeed they would have to do in the case of private prosecution, which is no longer allowed in the US). The alleged victim's reddit exchanges on the topic are here. An uncooperative victim does not make a good witness, even if they are compelled to testify. The police statement that they cannot pursue an investigation should not be interpreted as a statement of law, it's probably a statement of policy and practicality.

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    There's also the matter of respecting the victim's wishes. In some cases (to use an extreme example, a serial rapist) no matter how much the victims say they don't want to press charges, charges will be pressed anyway, because the point of the system is to protect the public. However, for more minor things -- petty theft, for example -- the legal system will take the victim's wishes into consideration. A store owner may ask for a teenager who stole some cigarettes to be scared a bit without being actually punished, and the DA could follow that. Of course, they don't need to, in any case.
    – anon
    Feb 16, 2018 at 4:05
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    @DavidGrinberg: And yet, people are prosecuted for murder . . . the Confrontation Clause doesn't mean you get to face your victim, it means you get to hear any testimony against you and cross-examine the witnesses. If the victim never testifies against you, then you don't need to confront him/her.
    – ruakh
    Feb 16, 2018 at 6:57
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    @DavidGrinberg if the victim never accuses you then the victim is not your accuser.
    – phoog
    Feb 16, 2018 at 15:34
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    @DavidGrinberg You get to face your accuser, correct. If the DA accuses you of a crime, you get to face him in court. He can present his evidence, which you and your legal representation get to cross-examine. Said evidence may contain testimony from the alleged victim, maybe not.
    – user385
    Feb 16, 2018 at 17:50
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    @DavidGrinberg - (IANAL, but,) The principle is that the defendant has the right to face the witnesses against him. Witnesses, not accuser. In criminal cases the accuser, i.e. prosecutor, is always an agent of a governmental jurisdiction - e.g. an Assistant D.A., and will for sure be there in court, accusing like mad. Feb 18, 2018 at 3:47

Just to add a different legal perspective:

In Germany, it can indeed be necessary to "press charges" for a prosecution to happen. This is because German law distinguishes between Offizialdelikt (literally, "official crime", a crime which must always be prosecuted) and Antragsdelikt (literally "crime by request", a crime which is only prosecuted if the victim requests it). Typically, serious crimes are Offizialdelikt (for example murder,robbery and fraud are), while lesser crimes are Antragsdelikt (for example slander or petty theft).

This distinction does not exist in US law, as far as I can see, and as explained in the other answers.

  • 1
    This distinction does not exist in US law, as far as I can see, and as explained in the other answers. Not in US federal law, anyway, though there are 50 states with different approaches. Feb 16, 2018 at 15:47
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    As a further note, some crime statutes that are normally an Antragsdelikt can become an Offizialdelikt if the prosecutor's office decides that the prosecution of this particular act carries “significant public interest”. Feb 17, 2018 at 11:52
  • 1
    So it's like delik aduan in Indonesia. Do you know the english for Antragsdelikt?
    – user4951
    Sep 10, 2018 at 11:55
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    @J.Chang: It seems there is no English term for it, because the concept does not exist in the laws of English-speaking countries. Wikipedia claims it's called "Antragsdelikt" in English, too. en.wikipedia.org/wiki/Antragsdelikt
    – sleske
    Sep 10, 2018 at 12:02
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    I am not aware of any U.S. jurisdiction that makes that distinction. Germany needs Antragsdelikt crimes because unlike the U.S. prosecutors, German prosecutors don't have unfettered discretion to decline to prosecute crimes in the face of clear evidence that a crime was committed. So, U.S. prosecutors don't need a legal justification to allow them to honor a victim's wishes, while a German prosecutor does.
    – ohwilleke
    Mar 6, 2019 at 3:28

So, what I think is happening is that the victim is necessary to the case in order to prosecute the accused individual. I haven't looked at the video, but it seems from the description that the man does not do anything considered legal assault beyond offensive language and intimidating language. The former is morally repugnant but not a criminal offense whereas the later might be, depending on the context.

In cases where the accused's language and behavior are part of assault charge, then the State must demonstrate that the victim perceived his language and behavior as a threat to the physical well being of the victim (it only counts if you can prove what was said was a threat of imminent lawless action. If the victim did not feel this was the case, then there wasn't an assault or threat of assault). If the victim refuses to testify, then they cannot prove this in a way that the accused's defense cannot pick apart.

In addition to this, and keeping in mind that I have yet to view the video, the physical component of the two punches may have been recorded after the video began capturing the incident. Another issue I found that will be problematic to the case going forward is that while the story says a third party passenger in the car called the BART police to the scene, nobody was able to identify the man despite the fact that he had yet to leave the car when the police left (but was identifiable with the aid of the video). This is not to say that the accused did not do what he is accused of, but more to say that it raises doubt that the story the witness against the man is telling the court is, in fact, the actual events that happened.

In all matters of Criminal Law in the US, the victim has little say regarding what charges are filed. The Prosecutor files the charges on behalf of the legal entity of the state. However, when a victim does say they do not wish to press charges, it means they will not aid the state's case against the accused. Depending on the evidence available to the state and the circumstances of the case, the State might not have the evidence it needs to get the conviction which means no prosecutor will want to go forward with the case. The prosecution will only ever have one shot to convict the guy and a weak case against a guilty person will mean a guilty person will go free.

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    The swing at the victim at the beginning puts this in the range of assault. The ethnic slurs would be the basis for a "hate crime" charge, if they are substantiated in the unedited video.
    – user6726
    Feb 15, 2018 at 22:29
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    @User6726: Thanks for the help. Again, I have not had a chance to watch the video and had a weird night last night after getting home.
    – hszmv
    Feb 16, 2018 at 19:42

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