The United States as a whole continues to grapple with finding the best solutions for coping with and ending the high incidence of domestic violence that currently exists today. Policy makers continue to struggle with identifying and implementing the most appropriate and effective response to this epidemic. The law enforcement community, in particular, has faced many challenges in responding to and developing new policies for coping with the occurrence of domestic violence during the past two decades.
Law enforcement agencies have generally adopted three approaches over the years for responding to domestic violence calls for service. The first approach involves officers serving as mediators at the scene of domestic disputes, the second approach involves the use of presumptive arrest policies, and the third approach uses mandatory arrest policies. Mandatory and presumptive arrest policies are the latest approaches being implemented at the state level in an attempt to curb the prevalence of domestic violence. These types of policies have been the subject of recent research studies and have yielded inconsistent results. The progression of presumptive arrest policies will be outlined and explained in this article.
Social Changes
Traditionally domestic violence was viewed by society as a private family matter that did not warrant government intervention. This social view dates back to a time period when women and children were merely viewed as chattel. Common law allowed and even encouraged a man to use physical force against his family in order to maintain order or for disciplinary purposes under the belief that he would be held responsible for the actions of his family members. Society gradually became less tolerant of domestic violence, but the view that it was a private family matter remained until approximately twenty years ago. By the end of the nineteenth century, American appellate courts began to denounce the common law approach and refuse to recognize a spousal exemption in cases of assault and battery. During this same time, states began to amend divorce statutes to include cruelty as a ground for divorce.
Law enforcement officials were limited in their ability to respond to such calls for service due to the fact that domestic violence was not considered a crime. Probable cause is a requirement established by the Fourth Amendment of the Constitution. The Supreme Court held in Gerstein v. Pugh, 420 U.S. 103 (1975) and Beck v. Ohio, 379 U.S. 89 (1964) that ”probable cause to arrest exists when the facts and circumstances known to the officer are sufficient to warrant a reasonably prudent person in believing that the suspect has committed or is committing a crime.”
Two major motivators began to alter the way states responded to domestic violence cases. The federal and state courts began to establish the right to police protection from domestic violence in cases such as 1984′s Thurman v. City of Torring-ton, 595 F. Supp. 1521. In the Thurman case a federal jury determined that the Torrington Police Department failed to adequately protect Mrs. Tracey Thurman and her son from domestic abuse. The case asserted that had Mrs. Thurman and her son been attacked by a stranger the police department would have reacted differently and this failure to act appropriately constituted a violation of Mrs. Thurman’s Fourteenth Amendment rights under the Equal Protection Clause. The court awarded her $2.9 million dollars in damages. This case made it clear that inaction on the part of the law enforcement officials could have severe legal consequences.
Limitation of potential liability became one important motivator for the states to adopt a new policy toward domestic violence. The second major enticement occurred in 1994 when President Clinton signed into law a crucial federal crime bill that included the Violence Against Women Act. The significance of this act was that millions of grant funds were made available to those states that adopted pro-arrest or mandatory arrest legislation.
The three general approaches mentioned earlier that law enforcement agencies have adopted over the years for responding to domestic violence calls for service are explained in the following paragraphs. The first approach involves officers serving as peacekeepers at the scene of domestic disputes, the second approach involves the use of presumptive arrest policies, and the third approach uses mandatory arrest policies.
Law Enforcement Officers as Peacekeepers
Because domestic violence was not traditionally considered a crime and was viewed by most as a private family matter, law enforcement officers initially resorted to mediation techniques when responding to these calls for service. Law enforcement officers maintained a peacekeeping role on the scene and encouraged the couple to sort out their disagreement without the use of violence. Officers became makeshift counselors in this situation and often referred the victim and/or offender to counseling services that were available to them within their community. Sometimes an officer would involve social services after a visit. Many police agencies adopted a mediation policy that discouraged arrests and instead provided a cooling-off period for those involved with officer presence that would allow for a peaceful resolution to the dispute at hand.
In some cases, however, the mediation intervention was not enough, and the police presence may have served to further exacerbate the situation. Although the intentions behind this policy were good, it received its fair share of criticisms. One such criticism is that the adoption of a mediation policy approach enhances the perception that domestic violence is not a crime, but is instead a private family issue less worthy of legal intervention. Another criticism of mediation policy is that adoption of such a policy contributes to the offender’s rationalization for the abuse, which leads to the belief that both the victim and offender are to blame for the abuse and almost ensures future abuse.
Critics of the mediation policy insist that a more punitive approach is needed for offenders of domestic violence in order to prevent it from happening on a regular basis.
Presumptive Arrest Policies
When the view of domestic violence began to shift and was no longer considered a private family matter, the response from the criminal justice system began to shift as well. Law enforcement agencies began implementing presumptive arrest policies due to the criminalization of domestic violence throughout the United States. A presumptive arrest policy is a type of pro-arrest policy that provides officers with discretionary abilities and allows them to make arrests when they deem them necessary.
There are two versions of pro-arrest policies. The first one typically encourages arrests through policy but leaves the decision to the officers who will be responding to the calls for service. This approach is often referred to as a pro-arrest approach. The second approach to domestic violence encourages officers to make an arrest but ultimately leaves this decision up to their discretion. This is what we call a presumptive arrest policy. This approach assumes that the officer will know best how to handle the situation based on his or her experience and expertise. It is presumed that an arrest will be made if the officer finds evidence that domestic violence has occurred.
The Progression of Presumptive Arrest Policies
In 1977, the state of Oregon experimented with mandatory arrest laws and concluded that the use of arrest and the threat of arrest were very powerful tools for deterring future acts of domestic abuse (Jolin 1983). In 1984, the Minneapolis Experiment was conducted to determine the most effective response to domestic violence calls for service. The researchers concluded that an arrest deterred future acts of domestic violence. Several studies replicated this experiment, but results varied (Berk and Newton 1985; Berk et al. 1992; Dunford 1992; Hirschel and Hutchinson 1992; Pate and Hamilton 1992; Sherman et al. 1992). Three subsequent studies, including ones conducted in Charlotte (Hirschel and Hutchinson 1992) and Omaha (Dunford 1992), concluded that an arrest actually increased future acts of domestic violence. Some researchers have argued that it is the inconsistency of the legal system that contributes to future acts of violence. When an offender is arrested but the case is dismissed in court, it defeats efforts made by the law enforcement community. The enactment and reenactment of the Violence Against Women Act has ensured that states take a serious approach to ending domestic violence through the enactment of appropriate legislation.
Mandatory Arrest Policies
The mandatory arrest approach does not allow officer discretion and requires by law that one or both parties involved in the dispute be arrested. There are two basic variations of the mandatory arrest policy. The first requires officers responding to a domestic violence call to arrest the primary aggressor. The criticism associated with this policy is that it is not always clear who the primary aggressor is, and the victim may actually end up going to jail simply because an arrest had to be made. The second variation generates the most criticism in that officers are required to arrest both parties involved and let the judge determine who is at fault later in a courtroom.
Many states have adopted mandatory arrest statutes that require law enforcement officers to arrest suspected batterers if there is probable cause that domestic violence has occurred. Furthermore, most mandatory arrest statutes are coupled with a warrantless arrest provision that allows law enforcement officers to make a misdemeanor arrest in cases where the officer has probable cause, but did not observe the battery. The probable cause element to this law helps prevent false arrests in cases where a person claims abuse to get revenge on the alleged offender. If probable cause cannot be established, law enforcement officials are not required to make an arrest. Victim advocates proclaim that dual arrest polices cause more harm than good and hinder the efforts of victims to seek help in the event of future victimization.
Conclusion
The debate over which policy is best continues today. Perhaps it is safe to conclude that a one-size-fits-all approach to domestic violence still does not exist. The mediation approach where the officer serves as a counselor has lost a lot of support over the years. Critics assert that this policy furthers the belief that domestic violence is not a crime and sends a message to offenders that physical abuse of family members is acceptable. The presumptive arrest policy encourages an arrest to be made but ultimately leaves this decision up to the officer’s discretion. Critics of this policy assert that officers will not make an arrest when they are left with discretion and mandatory arrest is the best approach. Critics of the mandatory arrest policy claim it does more harm to the victim than it does good. There are drawbacks to each of the three types of polices. Perhaps researchers should examine the judicial response to domestic violence as well as the policies adopted by law enforcement officials.
