Dual Arrest Policies Related to Domestic Violence
Abstract
Domestic violence is also referred to as domestic disturbance, spousal abuse, domestic abuse or intimate partner violence. It is broadly defined as a pattern comprising of abusive behavior by both or one partner in an intimate relationship like dating, marriage, friends, family or cohabitation. It is therefore clear that defining domestic violence is an issue in itself. Domestic violence entails a class of offenses whose definition differs from one state to the other on the basis of law enforcement and a statutory code.
Dual arrest policies are also called mandatory arrest policies, which are not enforced to a similar degree across all jurisdictions. These polices have been enacted in virtually all states in an attempt to reduce domestic violence. An arrest is initiated by mandatory policies when a criminal offence of violence has been filed against a partner. A significant debate has been generated following the implementation of mandatory arrest laws on domestic violence. States that have mandatory arrest laws require a police officer to make an arrest if they have a probable reason for reporting domestic violence. In the mid-1980s, a number of states adopted mandatory arrest laws in an attempt to curb domestic violence as well as regulate police behavior.
The first goal of this paper is explaining the relationship between domestic violence and dual arrest policies. It will give a historical account of the rise of these policies including an account of the Minneapolis experiment, attitudes in policies and women’s movement influence in propelling dual arrest policies in 1970s. The paper will further attempt to give the definition of dual arrest policies as well as the enactment and history of the policies across the United States. A brief discussion of variances across jurisdictions will be offered. Finally, the paper will briefly touch on the current issues and controversies concerning dual arrest polices as well as future directions for the policy and practice.
Introduction
State legislation began shifting towards dual arrest approach for police officers’ interventions on domestic violence more than twenty years ago. A thorough examination of the dual arrest policies associated with domestic violence will be presented in this research study. Moreover, the discussion seeks to explore the fact that different jurisdictions have varying degrees of enforcing such polices. Before the enactment of dual arrest policies, the stance taken by police officers was that of “underenforcement” due to the fact that domestic violence was not considered a crime. For instance, training programs that focused on domestic violence gave police officers arrest alternatives like referral or mediation. Many police agencies had a tacit policy of having police officers avoiding arrests.
It is believed that the most effective way of reducing domestic violence is through arrests. An experiment on the Minneapolis domestic violence indicated that the most effective standard method that could be used by police officers with the aim of reducing domestic violence was arrests. In the experiment, the arrest method was compared to tow other methods, which are, sending assailants ways from home for many hours and trying to counsel the conflicting parties.
Dual arrest polices are also referred to as mandatory arrest policies. These policies require police officers to arrest along with their female partners in instances of domestic violence. Such policies oblige police officers to make an arrest. Hence, under mandatory and preferred arrest policies, police officers can arrest batterers even in instances where they have not witnessed the actual violence incident. Domestic violence began being regarded as a serious crime and social issue in the early 1970s. This was partly because of the surfacing of Women Movement. Consequently, the number of arrests for domestic violence has significantly increased since the late 1980s due to enactment of preferred and mandatory arrest policies. Police interventions in cases of domestic violence have changed radically over the last thirty years from viewing wife assault as a family issue to viewing it as a crime that necessitates criminal justice intervention. This is due to increase in domestic violence cases, resulting to criminalization of domestic violence via preferred and mandatory arrest policies (Bush, 1992).
One limitation that may be encounters in the attempt to comprehend the relationship between mandatory arrest policies and domestic violence is that it is not possible to come up with reliable approximations of the number of domestic violence crimes and victims. There is often an under-representation of domestic violence crimes because virtually all data collected is based on the reports obtained from law enforcement agencies. This implies that crimes that are committed against victims who do not seek help from law enforcement agencies are not accounted for. Moreover, not all law enforcement agencies and states take part in attempt to report the number of domestic violence cases and crimes. The other limitation of the reported number of crimes is that the methods of measurement vary in different law agencies and jurisdictions (Hirschel and Buzawa, 2002).
Due to the mentioned limitations, data regarding domestic violence crimes was obtained from the research study conducted by Radha Iyengar, who makes use of the rates of homicide due to the fact that such crimes are almost reported perfectly. According to Iyengar’s argument, alterations in the rates of homicide can be related to the total number of domestic violence cases. Iyengar further agues that failure to report domestic violence cases to law enforcement agencies could lead to an increase in the intimate partner homicide rate (Iyengar, 2009).
Domestic violence is deep-rooted in the Patriarchal systems that were brought by colonialist when they initially settled in the New World. However, during that era, such violence was not viewed as a crime but rather, a man’s duty. It was acceptable for a man as the head of the family to take control over his children and wife, and could use any means possible to achieve this order, including via domestic violence. In 1868, there was the case of State Versus Rhodes regarding domestic violence. In view of this case, the Supreme Court of North Carolina ruled that even though a husband had the mandate to whip his wife, it were considered abuse if the switch was thicker than the thumb. The Rule of the Thumb standard was applicable to the majority of the state courts during the colonial era. This allowed men to use any instrument to enforce family obedience through physical means, so long as the instrument used was not greater than the thickness of a man’s thumb (Davis, Smith and Nickels, 1998).
Feminist scholars claim that dual arrest policies have substantially contributed to the increasing number of women arrested for domestic violence. It is noteworthy that up to date, only countable research studies have been conducted to examine the justifications given by police officers regarding the application of dual arrest policy. The increase in the number of women arrested has kindled a major debate in literature in an attempt to identify causes underlying the observed trend. The relationship between domestic violence and dual arrests will be investigated in this research study. Accounts of the rise of dual arrest polices in the 1970s as well as attitudes in policing also be provided. Through investigation of enactment of dual arrest polices across the United States, it will be proven that different jurisdictions enforce dual arrest policies to varying degrees (Hirschel, and Buzawa, 2002).
Discussion
A key global problem in the United States in domestic violence where about twenty five percent of women report cases of physical assault or rape by an close partner in the course of their lifetime. The response to this was criminalization of domestic violence in several communities via mandatory and pro-arrest policies governing domestic violence. Through pro-arrest polices, officers can make arrests in response to domestic violence calls and when there is evidence of domestic violence. It is however clear that under both mandatory and pro-arrest policies, police offers are allowed too make arrest in cases where thy do not have adequate evidence or witnesses to prove the violence incident. Though mandatory arrests resulted to increased number of arrests, they resulted to an unexpected trend of an increase in the number of women arrested for the offence of domestic violence (Hovmand, Ford, Flom and Kyriakakis, 2009).
There is often the failure by the law enforcement officials to arrest and prosecute domestic violence offenders. The reason behind inadequate police response may be inadequate sate laws governing arrest in cases of domestic violence. Majority of legislatures and states have tried to address this problem with statutory amendments including permitting warrentless arrests for offences that are not witnessed by police officers. It is inappropriate to overlook the essence of eliminating domestic violence in the society. This is because domestic violence is the main cause of injury to majority for the women in the United States. About a third of women homicide victims nationwide are murdered by their former or current spouses. Moreover, domestic violence accounts for more than twenty percent of suicide cases in women. More than fifty percent of couples in the United States experience domestic violence at some point during their marriage or relationship (Hovmand, et al., 2009).
Prior to the late 1970s, a typical police response to domestic violence was inaction. This is because the society including police officers viewed domestic violence as a private issue that did not require law intervention. Communities showed reluctance in application of criminal law to domestic violence prior to the modern battered women’s movement in the United States. Majority of the police agencies that existed during this era had policies that required police to refrain from arrests unless the victim was severely injured or the police had individually witnessed the violence. Response of police officers to violence was through mediation attempts. The mediation comprised of various approaches like attempts to convince the conflicting parties to reconcile or utilizing of alternative programs for conflict resolution. Police officers were trained on ways of separating conflicting parties in domestic disagreements, calming them down and generating resolution discussions (Mathews, winter, 1999).
The use of mediation by police officers did not address the dynamics associated with domestic violence. The basis of the ideology and practice of mediation is resolution of conflicts via negotiation between two equal conflicting parties. There is incompatibility of this construct with the dynamics associated with domestic violence, where the basis of abuse is the need to gain power and control over another individual and not a basis of conflict. The actual definition of conflict in this case is a situation that an abuser generates as a justification of beating the partner. Moreover, the future implication of mediation approach is the lack of the offender to be accountable for the abusive behavior. The victim is made to believe that he or she is at fault Sherman and Cohn, 1989).
In the late 1970s and early 1980s, polices and police practices radically altered because of the findings obtained from the Minneapolis Domestic Violence Experiment and police liability. These findings in combination with several lawsuits and pressure exerted by advocacy groups led to passing of laws necessitating the departments of police to come up with written polices regarding domestic violence arrests. Alterations in policy department during the 1970s and the 1980s shifted to a stance that favored arrest but still gave officers significant discretion in decisions to arrest. While some department policies adopted mandatory arrest, others agencies adopted presumptive attest. The aftermath of changes of legislation was enactment of dual arrest policies whereby officers were required to arrest offenders of domestic violence in cases where the behavior fulfilled specific threshold elements. It is however unfortunate that in the course of shifting towards formal enforcement practice, the transition lacked consistency across all jurisdictions (Tonry, 1992).
Currently, there is more than 91% of the total number of police departments having a drafted policy governing domestic arrests. Out of the 91% police departments, 72% have mandatory arrest policy while 17% have a pro-arrest policy. According to pro-arrest policies, police officers are encouraged to make arrest that lacks a warranty in response to domestic violence calls. Mandatory polices on the other hand obligate police offers to make arrests in response to domestic violence. It was expected that the mandatory and pro-arrest polices would lead to increased accountability for male batterers and increase battered women’s safety. Contrary to the expectations, there was a disproportionate increase in the number of women who were arrested because of domestic violence. Some of the negative consequences associated with dual arrest policies include losing custody of children, disempowerment and re-victimization (Sherman, 1989).
During the 1970s, public attitudes towards domestic violence began to change. Public accusations of inadequate responses to domestic violence emerged due to lack of a formal action by police officers. There was pressure from women’s advocacy groups demanding for state legislatures to amend their policies regarding domestic violence. In the year 1976, there was filing of a class action suit against the Police Department of Oakland, California. In the year 1977, another action suit was filed against the New York City Police Department. In regard to the lawsuits, it was argued that women were not given due process and equal protection when action was not taken against the offenders. Both cases resulted to amendment of several internal procedures and policies in order to promote response to victims of domestic violence (Phillips and Sobol, 2008).
In the year 1984, Lawrence W. Sherman and Richard A. Berk conducted an empirical research using information collected with the help of the Police Department of Minneapolis in a trail called Minneapolis Domestic Violence Experiment. The main objective of the experiment was to determine if arresting of domestic violence offenders could decrease the chances of future aggression acts. The Minneapolis experiment involved three hundred and fourteen incidences of domestic violence. The Minneapolis Police Department utilized a system of three randomly assigned responses in response to the domestic violence calls. The offenders were either counseled by police officers, arrested, if the officers had a sure cause of making the arrest or separated from the victim with the threat of future arrest in case the incidence was repeated. This was followed by a six-month follow-up period (Iyengar, 2009).
According to Sherman and Berk conclusions regarding reports from the victims, separation treatment procedures resulted to greatest recidivism while arrest procedures resulted to lowest recidivism. Interview responses of victims further confirmed the fact that arresting domestic violence offenders put women at a much lower risk of multiple abuse compared to the other two interventions. Hence, it was concluded that the most effective law enforcement response to domestic violence crimes was arrest. The results obtained in this experiment gained great extent of publicity and had a significant impact on public policy governing domestic violence. As consequent, majority of states enacted mandatory arrest laws in accordance to the findings of the experiments rather than a right of practice (Hovmand, Ford, Flom and Kyriakakis, 2007).
There were replications of the Minneapolis experiment that were undertaken in various locations including Milwaukee, Omaha and the Dade County of Florida. The findings of the replication studies raised major controversies since some indicated that dual arrest policies did not reduce instances of domestic violence. Instead, other studies indicated that the policies initiated further domestic violence. According to the findings obtained form the Omaha experiment, the result of arrest of domestic violence offenders was a decrease in the number of injuries and assaults.
According to findings from the Milwaukee experiment, there was reduced repeat violence during the first six months following offender arrest. Critics postulated that the there were inherent flaws in the replication studies, which seemed to understate the deterrent effect of offender arrest. The contradictory findings and arguments from the critics however, did not lead have an effect on the mandatory arrest policies. By the mid-1990s, virtually all states had enacted the mandatory arrest policies. Enactment of dual arrest policies was regarded as an essential tool for reducing domestic violence. The immediate intention of the policies was to protect domestic violence victims and to stop the offenders from committing violence acts in future (Hovmand, et al., 2007).
According to a meta-analysis of six studies carried out by the National Institute of Justice in the year 2001, domestic violence offenders were less likely to commit a similar offence against a similar survivor in the course of the follow-up period. Due to these findings, some scholars have called for the repealing of dual arrest laws due to a failure to prove that they could reduce recidivism. Several states enacted dual arrest laws according to the findings of Minneapolis Domestic Violence Experiments with the expectations that arresting domestic violence offenders in each incidence of domestic abuse would curb future aggressions. Similarly, states enacted such polices with the aim of avoiding liability (Davis, et al., 1998).
There are complexities regarding the link between mandatory arrest policies and victim arrests. The immediate merit of mandatory arrest is the reduction on the number of primary offenders entering the system. However, the long-term effects are a decline in the stock of cases at risk and a detriment on the level of collaborative relationship, which necessitates a secondary intervention. Cooperation in the community’s response to domestic violence is essential in attempts to curb the problem. It is however to important to note that collaborative responses mat at time proves to be non-beneficial. For instance, cooperative community response may lead to an increase in expectations for police agencies to share information regarding offenders and victims. The act of information sharing is at times asymmetrical and ineffective with regard to enhancing victim safety and promoting offender accountability. More communities have implemented dual arrest policies with the success of the battered women’s movement. Moreover, communities are more inspired to deal with issues of battered accountability and victim safety.
A major issue of concern that has been raised regarding dual arrest policies is that they ate harmful to domestic violence victims, who are women. This concern is in response to research findings indicating that the criminal justice system takes serious action on batterers. A Large number of batteries, who are mostly men, tend to victimize women systematically. Violence in women may arise due to attempts or acts of self-defense. According to research studies women and men’s violence are different in both quantitative ad qualitative terms (Bush, 1992).
Despite the fact that several states have made fundamental statutory amendments with the aim of providing for and facilitating arrest in situations of domestic violence, California portrays a wide gap and delay in adopting the trend. California was among the last states to do way with warrantless misdemeanor arrests in cases when the offence was witnessed by a police officer. Though the legislature was altered in the year 1996, there is still a requirement for a warrant prior to arresting majority of domestic violence offenders. The law enforcement agencies have for several times interpreted the California Penal Code in an attempt to exempt majority of domestic violence cases. As a consequent of this, there is the need for a novel legislative reform that would provide sufficient safety to domestic violence victims in California (Hirschel and Buzawa, 2002).
The current federal and state policy and legislation trends concerning domestic violence have a significant effect on children who witness domestic violence. The first major effort of the Congress to address domestic violence was the Family Violence Prevention and Services Act that was enacted in the year 1984. The aim of the legislation was to help states in the attempt to increase public insight about domestic violence. The legislation was also designed to provide homes and many other forms of assistance to domestic violence victims as well as their children. The forms of assistance that were provided fro by the Act included technical assistance, resource centers, training and grants to nonprofit organizations and states to implement model programs and domestic violence education services for the youth (Hoctor, May, 1997).
Despite the fact that state interventions to domestic violence do not target children, they have a great impact on children’s welfare and safety. This is because such interventions and policies provide tools through which nonviolent parents can protect themselves as well as their children from domestic violence. For instance, currently, virtually all states provide means through which domestic violence victims can get restraining orders. Restraining orders refer to orders that are issued by judges in an attempt to compel a violent individual to stay at a specific distance way from the domestic violence victim, the victim’s home as well as the workplace. The battered parent is obliged to file a drafted petition in court followed by attending a hearing in order to obtain a restraining order Phillips, 2008).
Different jurisdictions have varying duration and breadth of restraining orders. California as an example has restraining orders that may last up to a period of three years. Moreover, the orders can safeguard the victim’s children, the victim as well as other family members. The order may further include extra provisions like repayment of expenses resulting from domestic violence, exclusion from a common residence and mandated treatment of batterers. There are some states that provide for visitation, child custody, and for the issues concerning child support to be resolved in accordance to the restraining order action. Effectiveness of restraining order can only be achieved if the orders are enforceable and accessible. Some of the barriers faced by victims include those revolving around obtaining and enforcing restraining orders. However, majority of states have made recent attempts to enhance the effectiveness and access to such legal interventions (Sherman and Cohn, 1989).
There have been claims about the ineffectiveness of mandatory arrest policies. According to the United States Sentencing commission, mandatory arrest laws result to shifting of power from the judges to the prosecutors. Consequently, this leads to dislocations in processing of cases and imposition of penalties in such a way that everyone involves is made to believe that the system is unduly harsh. From the research studies conducted in the 1970s and 1980s, findings indicated that enactment of dual arrest policies had short term effects or marginal deterrent effects that eroded within a short time period. This brings us to a question as to why legislatures in virtually all states enacted the mandatory arrest polices between the late 1970s and early 1980s (Sherman, 1989).
The main reason behind the enactment is that majority of elected officials who were in support of mandatory laws were only interested secondarily in the effects of such policies. The official wanted to merely demonstrate that they did not tolerate crime at any given point of time or instance. They did not care if such polices worked or not. This was a period of heightened public anxiety, and what mattered most in elected officials was being on the right side of the issue of social unrest and crime. Being on the right side was more important compared to making logical and sound decisions that concerned public policies. It has therefore been argued that mandatory arrest policies have more costs compared to benefits. However, this does not imply that rational policies should not incorporate severe punishments for severe offences. Critics of mandatory arrest policies have postulated that there are ways that are more effective and less costly that can be used to address domestic violence cases.
The other issue of concern regarding mandatory arrest is the claim that it employed a blanket approach to a problem that does not have a simple solution. Mandatory arrest policies fail to account for the fact that all victims are not the same. Such polices hold the assumption that the desire of all victims is to have the offenders arrested, which is not the always true. This is especially the case when victims rely on their batterers in various aspects such as income or job. This is a serious concern because it may lead to a victim showing reluctance in attempting to seek assistance for the violence abuse experienced. It can therefore be presumed that mandatory arrest policies result to loss of autonomy in that, the victim is not given the mandate to make the decision regarding the action that should be taken against the offender (Tonry, 1992).
In attempts to improve research on the relationship between mandatory arrest policies and domestic violence, it is essential to consider some factors. The suggestions are based on the limitations of domestic violence polices in terms of relationship statuses, gender stereotypes, ethnicity and socioeconomic status as well as the definitions codified by the law. It is essential to take gender into full account when conducting research concerning the impact of domestic violence policies. Varying definitions of sex and gender may pose significant barriers to victims attempting to obtain protections from law enforcement agencies (Hirschel, 2002).
Research on the effect of domestic violence laws does not take into account homosexual relationships. Majority of the state statutes do not address domestic violence in homosexual relationships. This is essential for future research due to the fact that a measuring tool such as that employed by Iyengar does not exclude data collected from homosexuals (Bush, 1992). Consequently this results to a flawed design in investigating the impact of mandatory arrest policies on domestic violence.
Conclusion
It is evident that mandatory arrest policies have led to both detrimental and successful effects to domestic violence victims. This implies that there is no simple and straightforward solution as to what the effect of mandatory arrest policies are to domestic violence. It is generally challenging to implement sound and effective policies governing domestic violence. Hence, regardless of the good intentions that [policymakers have, there are uncertain consequences and outcomes that might be associated with the policies enacted. The objectives that a policy is intended to achieve may fail to be universally achieved through a single directive. It is therefore recommendable for any form of research on a given issue to be viewed as a microcosm of a larger picture or subgroup.
The contradictory findings in various research studies on the impact of mandatory arrest policies may be partly contributed by the fact that domestic violence is a social issue that entails a lot of complexities that re beyond empirical analyses and studies. Domestic violence is a research filed that will most likely continue to develop. It will most likely develop positively with more informed and educated research.
References
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