Domestic Violence and A Mandatory Arrest

Domestic violence is a serious problem in today’s society. According to FBI statistics, about 4 million incidents of domestic violence occur throughout each year in the United States. The FBI states, “In the United States of America, a man beats a woman every 12 seconds” (Mordini, 2004). Mordini, an associate at the Davis Brown Law Firm, conducted a study that found approximately 3.3 million children witness acts of domestic violence each year and that 70% of men who beat their wives also abuse their children. Domestic violence costs American businesses $4 billion dollars each year in the “low” productivity, staff turnover, absenteeism, and excessive use of medical benefits (Mordini, 2004).

During the early 1970’s and 1980’s, research and studies on domestic violence drew national attention to the issue. Since the middle of the 1980’s, recognition of domestic violence has resulted in the problem of shifting from a minor public concern to a major policy issue. Since 1994 alone, the number of new laws enacted across the country that deal with domestic violence is well over 1,500 and the number of bills introduced during this same time is estimated to be around 10 to 20,000 (Miller 2005). In order for mandatory arrest laws on domestic violence to be put into action there were serious debates occurring on how police officers can make an arrest if they have probable cause that domestic violence has in fact occurred.

During the mid to late 1980’s, a number of states adopted such laws as an effort to combat domestic violence and to control police behavior. However, there is no clear consensus among politicians, law enforcement officials and researchers on the effects that mandatory arrest policies have for victims of domestic violence (Miller, 2005). Thus, the verdict remains unclear on whether these laws provide the intended protection and relief to victims they were designed to, or whether they are the cause of unintended consequences such as increased violence.

The domestic violence law slowly evolved throughout the years. Under early common law, women were seen as the property of their fathers or their husbands, and they consequently lacked any kind of identity of their own. This principle was embodied by common law because, when a man and a woman marry, they were seen as a legal entity. A husband had inter-spousal immunity from torts from his wife, but he would be held responsible for torts of his wife, prior to and after marriage (Mordini, 2004).

Due to this principle, a husband is able to ‘discipline’ his wife if she misbehaved. This introduces the “Rule of Thumb” concept. This concept encouraged violence against women and came from a time that allowed a man to beat his wife as long as he didn’t use a stick that was thicker than his thumb (Rizer III, 2005). This concept regulated the use of violence and allowed acceptance within society. Under the 1974 North Carolina court ruling, “the law provides that, absent a showing of permanent injury or malice, the preferred treatment of domestic violence cases was to ‘draw a curtain’, shut out the public gaze, and leave the parties to forgive and forget” (Mordini, 2004).

The beating of a wife became a big social issue and it took awhile for the court to deem it unlawful. In 1920, violence against women finally became illegal in all fifty states, including the District of Columbia. However, the legal prohibition of domestic violence still did not protect domestic violence victims because the predominant opinion was that the law should stay out of the private matters of the home (Mordini 2004). Finally, until the 1960’s and 1970’s, did women start taking a stand and domestic violence women’s shelters were created. Another development over history was the Battered Women Movement. Rather than taking on an overwhelmingly political front, shelters looked at the psychological aspects of battery. Instead of having marches and protests on the streets, coordinators and volunteers at these shelters worked individually with each victim and gave the movement a very personal and individual voice. Hotlines and crisis centers were created for victims. The motto of this movement was “we will not be beaten”. This movement led to more victims speaking out about how they are being abused behind closed doors by their husbands. Some believe that the Battered Women’s Movement is often overlooked because of the perceived lack of impact it had during the second wave of feminism. Because there were no dramatic rallies or events to draw large-scale attention to the movement, people have often disregarded it as nothing more than moderately influential. However, what they don’t realize is that it had a different type of power that didn’t draw too much of attention as how other feminist acts did (Lutz, 2004).

Police response to domestic violence became an issue when efforts were criticized for putting too much attention on victims and not on legal remedies. These complaints were mostly about the inadequate police response to domestic violence calls, and the failure of the criminal justice system to treat these incidents as crimes. In the criminal justice system, police officers are considered to be mediators and peacemakers within the community when it comes to enforcing the law on domestic violence.

Research was done and found that police officers followed what is known as the “stitch rules”. These rules justified a wife who claims to be abused by her spouse must acquire a number of surgical stitches before an arrest could be made. Another research found that the police response time was slightly longer when it came to responding to domestic disputes. The average response time was 4.65 minutes compared to 3.86 minutes for non-domestic disturbance calls (Mordini, 2004).

However, in the mid 1980’s there was a great shift in expanded change within the legal approach to consider domestic violence as a criminal act. The expansion of law enforcement to make warrant less arrests assisted the introduction of domestic violence as a criminal act. This new change demolished the common law and changed the views of law enforcement. Instead of following the common law approach, law enforcement based their arrests on discretion and probable cause.

However, some police officers still believed that their role was to mediate the issue and not use probable cause in certain cases involving domestic violence. In 1984 an experiment called the Minneapolis Domestic Violence Experiment (MDVE) was conducted by two individuals, Sherman and Berk. These two individuals were the first to study mandatory arrest. The reason for this study was to address and figure out how police should respond to misdemeanor cases of domestic violence. In this study, they found that arrest reduces and deters future violence acts from occurring (Sherman and Berk, 1984).

With the continued reluctance of police officers willing to respond properly to domestic disturbance calls, new issues arose. The case of Tracy Thurman vs. City of Torrington made an impact on law enforcement response time and grabbed the attention of the criminal justice system. In this case, Tracy Thurman, a domestic violence victim, was repeatedly assaulted by her estranged spouse. In June of 1983, she was stabbed and left permanently disabled. The problem that occurred with this case was that police officers knew her husband as a counter worker at the community diner. Knowing about previous calls to the police and his one prior arrest which led Mrs. Thurman to put a restraining order on her husband, the police overlooked the situation.

The outcome of this case led the city of Torrington to pay Tracy Thurman $2.3 million and the court ruled that, “”If officials have notice of the possibility of attacks on women in domestic relationships or other persons, they are under an affirmative duty to take reasonable measures to protect personal safety of such persons in the community. Failure to perform this duty would constitute a denial of equal protection of the laws” (Miller, 2004).

This case, as well as other cases involving domestic violence victims, played an important role in reminding law enforcement that assault against a partner is considered a crime and that victims have constitutional rights to police protection (Miller, 2004). Mandatory arrest is the mechanism that controls police behavior and helps to clarify the role of the police in domestic violence situations (Rizer III, 2005). “Between the years 1984 to 1989, the most support for mandatory policies was generated and arrests increased by 70%. This may not necessarily be a good thing because more arrests means more police time, and it is estimated that it takes around three to four hours of an officer’s time to process a domestic arrest” (Rizer III 2005).

The main accomplishment of mandatory arrest is that it protects the victim from immediate violence by separating the batterer and the victim. Mandatory arrest also sends a message to the batterer that his or her behavior is criminal and will not be tolerated by the community. It also sends a message to the victim, who has been assaulted, that domestic violence is a social problem and it is not the victim’s responsibility to stop it.

Even though there are accomplishments of mandatory arrest, there are also concerns. One of the concerns is known as the Blanket Approach. This approach states that mandatory arrest fails to take into account the fact that not all victims are the same and how it affects a victim’s desire to have their batterer arrested. Victims may not want their batterer arrested because they are either dependent on them, don’t want the arrest to occur in front of their children, the arrest might jeopardize their immigration status, or the arrest may put the batterer’s job at risk.

Another concern about mandatory arrest is that it may be too harsh in certain circumstances. This is where the no-drop prosecution policies are introduced. The no-drop prosecution policies occur when a victim drops the charges as part of the cycle of the abuse (Simon, 2007). These policies also allow police reports to be used by prosecutors in court to convict an individual for domestic violence.

Mandatory arrest has its positives and negatives. One problem that falls under mandatory arrest is the process of dual arrest. Dual arrest is when “both parties allege that the other was the aggressor, leading the police to arrest both parties, including the innocent victim who may have been acting in self-defense” (Miller, 2005). A 1988 study was conducted in Los Angeles, California to show significance of the dual arrest policy. In this study, with the use of mandatory arrest policies, three times as many women were arrested compared to less than twice as many men. This study showed that dual arrest has consequences for victims of domestic violence which include, the loss of ‘victim status’, transportation to a safe location, issuance of a restraining order, participation in victim assistance programs, loss of employment, and loss of child custody (Miller, 2005). Due to the dual arrest policies, victims may feel that seeking police help or intervention leads to these negative outcomes.

In order to deal with this problem of dual arrest, the criminal justice system introduced disproportionate outcomes that address the concern of innocent victims being falsely accused and arrested for domestic violence. States adopted new policies that “mandated that officers receive training to develop their abilities in handling domestic complaints effectively” and adopted primary aggressors to mandate dual arrests (Rizer III, 2005). However, there is concern that these policies are discriminatory. Some researchers claim that the policies are bias against males and police will usually arrest the male even if there isn’t substantial evidence to support the arrest being made.

Another problem is that mandatory arrest policies could also provoke the batterer into becoming more violent towards their partner (Iyengar, 2006). Comparing states with the mandatory arrest law show that they have about a 50% higher homicide rate than states without such laws. Radha Iyengar assumes that arrest doesn’t deter violence, but it may in some cases cause revenge towards the victim when the batterer is released.

As mentioned earlier, the Minneapolis Domestic Violence Experiment was the most influential research conducted on mandatory arrest laws and domestic violence. This study was random and scientifically controlled. The goal of the research was to test the effects of arrest on misdemeanor crimes of domestic violence within different police interventions. The findings of this experiment found that the arrest group maintained the lowest rates of future assaults, threats, and property damage (Sherman and Berk, 1984).

Sherman and Berk introduce the specific deterrence doctrine and labeling theory as the literature of how punishment affects behavior. The specific deterrence doctrine claims that legal sanctions suppress crime by making punished persons more sensitive to legal threats in the future and human behavior is considered to be rational when influenced by incentives (Sherman and Berk, 1984). The labeling theory states that punishment makes individuals more likely to commit crime and legal sanctions increase crime by assigning the role or label of “criminal” to offenders. This primary deviance results in secondary deviance (Sherman and Berk, 1984).

The subsequent research and intimate partner homicides were conducted by Radha Iyengar, a professor at the London school of economics. In her study, she wanted to find out if the certainty of arrest actually reduces domestic violence. Iyengar used the FBI

Supplementary Homicide Reports, which provide data on all homicides in the United

States that took place in the years 1976 to 2003. The results of her analyses showed that although overall homicide rates have been on the decline, states with mandatory arrest policies had a significant increased amount of intimate partner homicides (Iyengar 2006). She further reinforced her findings by looking at a number of covariates for demographics, economic conditions, and social policies such as provisions of divorce laws and welfare assistance, which she found no significant effect (Iyengar 2006).

As a result in her findings, Iyengar found that there was conflict with the Minneapolis Domestic Violence Experiment findings. Her study estimates the effect of knowing that arrest is a definite consequence of contacting the police and that the threat of arrest is inadequate in deterring abusers from killing their victims (Iyengar, 2006).

In the Rural and Urban Homicide studies, researchers found that the norms of society and tradition govern behavior that lead to violence among certain groups. For instance, family and intimate partner homicides are usually a result of a history of abuse, where other homicides involving strangers are not. In stranger-acquaintance homicides, males are more likely to be the victims and account for over 90% of the perpetrators. In comparison, women are at greater risk of being the victims of intimate-partner homicides and when they are perpetrators in a homicide, they are more likely to kill within a ‘family context’ (Gallup-Black, 2005).

There are differences between rural and urban areas considering the layout of geography, the community dynamics, crime control, and family-intimate partner abuse patterns. The nature of interpersonal relationships may be more or less likely to involve individuals to know one another based on these differences in communities in the different areas. Lack of state in rural communities may exert a ‘chilling effect’ on those seeking assistance for intimate-partner or family abuse. This problem could lead to an increase in homicide rates (Gallup-Black, 2005).

After discussing about domestic violence and mandatory arrest laws, many questions have erupted about this issue. What else should be considered? Gender stereotypes have an importance due to the different definitions of gender and sex. This can propose obstacles for victims who are trying to get protection and also for the criminal justice system that has to deal with these cases. Research has also shown that sex of the perpetrator influences the criminal justice response to domestic violence (Schmesser 2007). This suggests that not only do definitions of domestic violence need to be considered, but also how these laws are carried out in practice, and the social context and biases that may impact their effectiveness and or application.

Same-sex relationships are not addressed in statutes, which deny them equal protection under the law. The way states depart from each other is by whether their domestic violence law covers couples who live together, who lived together previously, who are dating or who dated prior and same-sex couples. Future research may aim to look more specifically at the definitions and protections within each state statute because the protection levels provided are not uniform across all fifty states.

Another issue that should be considered is race, ethnicity, and socioeconomic status. This is significant because it suggests that the implementation of mandatory arrest policies may have unintended consequences for minority groups. Race is an important variable to consider when looking at the effectiveness of these laws, because race impacts domestic violence. In order to understand this impact, race needs to be understood in context of our society’s long history of oppression and subordination of different minority groups, most notable African Americans (Buzawa & Buzawa 2003). This may cause these groups to be less likely involved in calling for police assistance if it means an arrest will occur. Socioeconomic status and race are also significant together because studies have found that “environmental stress and family pathologies-including poverty, social dislocation, unemployment, and population density. Future research may consider the importance of place, socioeconomic distress factors, and race when looking at the effectiveness of mandatory arrest laws on domestic violence.

In conclusion of this policy, the studies and researches conducted to justify the mandatory arrest policy on domestic violence proved that this policy will undergo further debate. This is a strong topic and a difficult issue to have a similar opinion on but with further research and studies, the criminal justice system can come to an agreement on how to handle this policy. Domestic violence is a huge problem within the United States and hopefully the criminal justice system can figure out a policy that can help decrease the amount of cases involving domestic disputes and disturbances. Law enforcement also plays an important role with this policy.

Police officers must realize that community policing, as well as traditional policing can lead to the reduction of domestic violence. Each state has its own way of dealing with domestic violence. The state of Hawaii is in the learning process on creating laws to protect victims on domestic violence due to the recent amount of homicide cases involving domestic assaults. As each day passes, there is a new victim to domestic violence. It is up to the government to find a policy that can help victims and their families cope with domestic violence and law enforcement needs to stay involved with the mixture of community and traditional policing.