Where is The Middle Ground between Mandatory and Discretionary Domestic Violence Legislation?

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Years ago when I was living in Boulder, Colorado, I volunteered as a legal advocate with the Safehouse Progressive Alliance for Nonviolence (SPAN) and learned about catastrophic cases of domestic violence. As part of my training to become a legal advocate, I became familiar with the federal and state-specific legislation covering domestic violence. Colorado is one of 22 states that apply mandatory or preferred arrest in cases of domestic violence. When they enacted the mandatory arrest law in 1994, legislation fostered by the federal Violence Against Women Act (VAWA), policymakers had the best of intentions to protect former and potential victims from repeated intimate partner violence.

Mandatory arrest laws were enacted to protect women from experiences like that of Tracey Thurman, a Connecticut woman who was left for dead in the driveway by her husband who had beaten and stabbed her multiple times in 1984. Against all odds, Tracey not only survived her husband’s attack, but successfully sued the City of Torrington, Connecticut for failing to protect her after she had repeatedly reported her husband’s violent episodes to authorities. Unsurprisingly, after Thurman’s case, domestic violence advocates nationwide pushed legislators to pass mandatory and pro-arrest laws that transfer the decision to press charges from women to law enforcement officers.

However, empirical evidence in the last decade has caused some researchers and practitioners to raise their eyebrows. Before mandatory arrest laws became popular, police had full discretion in calling the shots with regard to domestic violence incidence. The implementation of the mandatory arrest laws in the 1990s removed law enforcement’s discretion, directing police officers to arrest the identified perpetrator or in some cases, perpetrators. But, has the legal pendulum swung so far that it is time to reevaluate the statutes? Are mandatory arrest laws effective or, by implementing them, do we create more harm for victims because police are ineffectively trained to enforce the laws and knowing this, victims become too scared to call the police when they have experienced domestic violence?

Former Harvard researcher Radha Iyengar tracked homicide rates in states with mandatory arrest laws compared to states without such laws. Iyengar’s findings revealed that in the 22 states that mandate arrest, homicides have increased by 50%, while in states that employ police discretion, homicides have actually declined. Iyengar attributes the increase in homicide rates to the reluctance by victims of abuse to put their partners behind bars. The fear of seeing their partners go to jail has in fact led victims to contact police less frequently than in previous years. Iyengar notes:

The mandatory arrest laws were intended to impose a cost on abusers. But because of psychological, emotional, and financial ties that often keep victims loyal to their abusers, the cost of arrest is easily transferred from abusers to victims. Victims want protection, but they do not always want to see their partners be put behind bars.

Victims of intimate partner violence want their voices to be heard. But it appears that mandatory arrest laws, however well-intentioned, may instead be silencing victims and, more distressing still, triggering retaliatory violence.

One of the most significant consequences of mandatory arrest laws has been the subsequent rise of dual arrests when police respond to a domestic violence call. A 2008 publication produced by the National Institute of Justice commented that not only were “arrest rates in intimate partner cases 97% higher in states with mandatory arrest laws, compared to states with discretionary arrest laws,” but also, “mandatory, but not preferred, arrest laws increased the likelihood that police would arrest both parties”. Similarly, Iyengar’s research finds that victims avoid calling the police out of fear that they will be arrested for acting in self-defense. She also notes the possibility of dual arrest most concerns victims with children at home.

The National Institute of Justice report revealed that dual arrest is more likely in domestic violence cases where the victim is unclear. This was particularly true in incidents involving simple rather than aggravated assault. In aggravated assault situations, the increased physical violence and evidence help police more clearly distinguish between perpetrators and victims. In same-sex cases, dual arrest rates were ten times the rate observed in incidents between female victims and male offenders. Police officers in mandatory arrest law states may not be properly trained to address same-sex domestic violence, leading to an increase in dual arrests.

Research in recent decades supports greater discretion in police intervention in domestic violence cases. The enactment of mandatory and preferred arrest laws in the 1980s and 1990s was meant to provide increased support for victims. Both decades witnessed a rise in the number of fatal domestic violence incidents, prompting legislators and victim advocates to utilize these tragic cases as a platform to promote punitive reform in domestic violence laws. There is little doubt that these laws were developed with the victim in mind. However, contemporary research questions the capacity of mandatory arrest laws to provide victims with the protection that legislators and victim advocates had expected.

Mandatory arrest laws may have once seemed necessary to draw attention to the growing domestic violence problem in the United States. However, in recent years, it has become clear that these laws have failed not only to provide victims with greater protection but led to more victim arrests by police unable to make discretionary decisions based on probable cause. As it stands, states with mandatory arrest laws may not be appropriately equipped to deal with domestic violence until they understand the intricacies of the legislation and work to promote victims’ rights and eliminate gender inequality embedded within law enforcement’s patriarchal nature. Until then, the unintended consequences of the laws may be outweighing the anticipated benefits. The available research offers evidence to promote a middle ground approach between “discretionary” and “mandatory” arrest.

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Author: Courtney R. Rowe

Courtney is in the process of completing her M.S. in Leadership and Policy Studies from DePaul University and holds a B.A. in International Affairs from the University of Colorado, Boulder. Her areas of interest include wartime sexual violence and its effects during the transitional and post-conflict phases, the role of women in peace building with a focus on civil society, the disarmament, demobilization and reintegration (DDR) of women and former child soldiers, and intimate partner violence in the United States. In 2011, Courtney's chapter "The Disarmament, Demobilization and Reintegration of Former Child Soldiers" was published by the National Defense University Press in the book, The Monopoly of Force. Courtney recently worked on Department of State grant-funded projects in Iraq with DePaul University's International Human Rights Law Institute (IHRLI). Prior to her experience at IHRLI, she held a research assistant position with the Social Science Research Center.

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