Gender-Conscious Confrontation: The Accuser-Obligation Approach Revisited

The Supreme Court’s recent Confrontation Clause decisions have had a dramatic effect on domestic violence prosecution throughout the United States, sparking debate about possible solutions to an increasingly difficult trial process for prosecutors and the survivors they represent. In this Note, I revisit and reinterpret the suggestion by Professor Sherman J. Clark in his article, An Accuser-Obligation Approach to the Confrontation Clause,1 that we should view the Confrontation Clause primarily as an obligation of the accuser rather than a right of the accused. Specifically, I reevaluate Clark’s proposition using a gendered lens, ultimately suggesting a novel solution to the problem of the “victimless” domestic violence prosecution that would extend beyond the domestic violence context. An approach that views the Confrontation Clause as an accuser’s obligation, and focuses on the values of honor, courage, and respect, while simultaneously taking a gender-conscious approach in defining those values, will produce a body of jurisprudence that can satisfy the courts, academics, and advocates alike.