Mandatory arrest and pro-arrest statutes are state laws that direct how government agencies respond to domestic violence. There are three types: mandatory laws, preferred laws, and discretionary laws. States with mandatory laws require police compliance with their provisions, states with preferred laws indicate a preference for arrest, and states with discretionary laws leave the decision making to the individual police departments. This essay discusses the growing role of arrest in domestic violence, the impact of mandatory and pro-arrest statutes, and the advantages and disadvantages of these statutes on victims.
The Growing Role Of Arrest
Since the early 1980s, there has been an increased policy preference toward the use of arrest when responding to domestic violence, coupled with a growing desire to limit police discretion in domestic violence incidents. The new pro-arrest consensus emerged when the traditional policy of nonintervention lost credibility and when earlier reform efforts such as crisis intervention lost adherents. Further, there was growing political pressure by women’s groups, a surge of lawsuits brought against police departments for negligence and failure to provide equal protection to female victims in domestic violence situations, and the research findings of the Minneapolis Domestic Violence Experiment.
It had long been known that arresting certain domestic violence offenders was both proper and essential. Arrest provided the only method by which police could ensure separation of the couple and prevent subsequent violence, at least until the offender was released. Although the impact of arrest on domestic violence offenders was uncertain, at a minimum it was believed essential to the creation of a formal societal boundary defining acceptable behavior.
As a result, there has been an almost unprecedented wave of statutory changes since the 1970s, culminating in legislation in all 50 states, an effect that has irrevocably altered this position. These laws seek to expand police powers and govern practice when responding to domestic violence calls and enforcing suspected violations of restraining orders. State statutes provide the outside parameters within which the police must operate in their particular state.
State statutes vary considerably in their requirements. However, they all expressly purport to make profound structural changes in how government agencies respond to domestic violence. They enhance police powers, grant new criminal sanctions to prosecutors and the judiciary, increase the availability and enforcement of civil restraining orders, educate the public about the problem and the effects of violence in the family, and provide state and federal funding through the Violence Against Women Act for police, prosecutors, courts, and victim services.
In the calendar year of 2000, there were statutory provisions in 22 states and the District of Columbia for mandatory arrest, 6 states for preferred arrest, and 22 states for discretionary arrest in cases of domestic violence. Thirty-three states mandate arrest when there is probable cause to believe there has been a violation of a restraining order.
Arrest requirements in states with mandatory arrest statutes vary based on the circumstances, including elapsed time and seriousness of injury, as well as the relationships encompassed. Although some states have mandatory arrest provisions that apply to all crimes of domestic violence, others limit their provisions to felonies or limit their provisions to offenses committed within a specified timeframe.
In states with discretionary arrest provisions, there is variation in the arrest powers granted to officers. Although they typically allow police the authority to make warrantless arrests with probable cause to believe that a domestic violence offense has been committed, states vary in their limitations. These limitations include specifying the types of domestic violence offenses (such as felonies only), the time period during which the offense must have been committed, and the requirement of physical injury.
However, many departments within discretionary or preferred arrest states have mandatory or more restrictive arrest policies than required by state statute. Therefore, the interrelationship between state law, departmental policy, and actual police practices is the source of considerable investigation by researchers.
Impact
The implementation of legislative and policy mandates was intended to influence and change police behavior. This expectation has been supported by research on domestic violence legislation that has resulted in increased rates of arrest, prosecution, and conviction as well as improved responsiveness toward victims with the imposition of mandatory arrest requirements.
Research indicates that the implementation of mandatory and preferred arrest laws and/or policies is clearly associated with higher arrest rates. Arrest rates from data collected in the 1970s and 1980s were generally increasing. For example, in one analysis of 2000 National Incident-Based Reporting System data, it was reported that the overall arrest rate for assault and intimidation was well in excess of 30%: 49% for intimate partner violence cases and 44% for other domestic violence cases.
Advantages For Victims
Although possibly unintended, the current effect of such legislation has been to give primary responsibility— and power—for the suppression of ongoing domestic violence to the criminal justice system. This approach provides several potential benefits for victims. First, the criminalization of domestic violence confirms the status of domestic violence victims as victims of crime rather than as guilty participants in a battling relationship. The legal identification and label of victim (although many would prefer the term survivor) was also believed to increase victims’ confidence in asserting their legal rights and as a possible vehicle for a victim to gain access to support services.
Second, by placing the burden of an arrest fully on police, it is also believed that there will be less pressure on already traumatized victims. When the police aggressively respond by arresting an offender, the victim might be greatly relieved because both the immediate source of the terror and the responsibility for coercive actions taken against the offender have been removed.
Third, such a policy fulfilled some victims’ needs for retribution or punishment. The underlying rationale of retribution is that, given similar factors, victims of interpersonal violence deserve the same societal reaction as victims of stranger violence. Although many researchers discredit the legitimacy of retribution, it is a well-recognized goal of criminal justice intervention— institutionalizing retribution and obviating the need for vigilantism.
Fourth, many victims want batterers arrested in order to mandate their treatment by the courts. Their preferred outcome is to maintain the relationship without violence.
Disadvantages For Victims
The primary goal of all mandatory arrest policies is to prevent further violence and to protect victims. However, its implementation may further disempower victims and possibly work against their best interests. In many cases, the goals of assisting and empowering domestic violence victims are not as straightforward as in other settings. Even among violent crimes, victims of domestic violence may differ from other victims if only based on their intimate knowledge of and relationship to the offender. The victim’s goals are similarly diverse. Some may wish to salvage a flawed relationship in which aggressive behavior is now customary, whereas other victims may have already terminated contact with the offender.
Jurisdictions with mandatory arrest policies cannot incorporate the complexity of these victim needs and preferences into policies and practices. However, some consider this concern irrelevant because the goal of the criminal justice system is to address the offender’s behavior rather than the victim’s preferences and needs. This concern is justified by pointing out that when victims successfully leave an abusive relationship, the batterer simply targets a new victim. Without the offender’s identification by the criminal justice system, potential victims as well as police will be unaware of the threat this individual poses.
In addition, it has been argued that although victims have preferences, they may not be capable of judging what is in their best interests and that professionals should make these decisions. For many racial and ethnic minorities, the risks of arrest may outweigh potential benefits. Rates of domestic violence are the highest among racial and ethnic minorities and the poor in general, and thus arrest rates will disproportionately increase among these subpopulations.
There has also been an increase in the arrest of an ongoing victim of abuse in jurisdictions with a preferred or mandatory arrest policy. In some cases, dual arrests may be a result of insufficient police training in identifying the primary aggressor. Alternatively, such arrests may constitute a mechanism to further punish women. With the inability or refusal of police to distinguish victims from offenders accepted as the first explanation for the existence of high dual arrest rates, states, beginning with Washington in 1985, enacted primary or predominant aggressor laws. Currently 24 states have such laws.
Bibliography:
- Buzawa, E. S., & Buzawa, C. (2003). Domestic violence: The criminal justice response. Thousand Oaks, CA: Sage.
- Hirschel, J. D., Buzawa, E. S., Pattavina, A., Faggiani, D., & Reuland, M. (2007, May). Explaining the prevalence, context and consequences of dual arrest in intimate partner cases (NJC No. 218355). Retrieved from https://www.ncjrs.gov/pdffiles1/nij/grants/218355.pdf
- Sherman, L. W., & Berk, R. A. (1984). The specific deterrent effects of arrest for domestic assault. American Sociological Review, 49, 261–272.
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