Mandatory Arrest for Domestic Violence - Research Paper Example

?Mandatory Arrest for Domestic Violence Mandatory Arrest for Domestic Violence of the Policy: The Mandatory arrest for domestic violence is a criminal procedure law which would requires the police to make arrests in domestic violence cases when there is probable cause to do so, regardless of the wishes of the victim. Where the evidence establishes probable cause to believe that a misdemeanor or felony was committed, the police are prohibited from even asking the victim about whether to arrest the alleged abuser. Before mandatory arrest programs in the US were implemented, law enforcement authorities were not allowed to arrest individuals suspected of domestic violence (Hoctor, p. 644). Hoctor (p. 644) discusses that by the time officers respond to domestic violence calls, they often end up being mediators in the dispute. Such mediation can take on various approaches, including reconciliation attempts by officers for the parties involved or the use of formal resolution programs. Mediating the domestic violence did not assist in resolving these issues; moreover, these incidents have often escalated to more incidents of violence and even deaths. Moreover, these incidents often disturbed the neighborhood peace and violent outbreaks often ended up involving other parties (like neighbors or bystanders attempting to break up the fight). Because of the escalation of these incidents, as well as the public disturbance that these incidents often caused, some territories have implemented mandatory arrests for incidents of domestic violence. The discussion on mandatory arrest during domestic violence has not been completely resolved because many people still believe that the policy has an unfavorable impact on the assailants, the victims, and their family members; it also potentially causes the breakdown of the family unit, causes economic hardship on the victims, and causes trauma to the families as well as lack of childcare in instances of dual arrests (Hoctor, p. 644). Regardless of the above concerns, the policy has been implemented with some success in the achievement of goals – protecting involved parties from the impact of physical violence and keeping the general peace. With the above scenario, this paper shall discuss the details of this policy in terms of theories and ideological underpinnings. It shall discuss research evidence in its application; and it shall also present a critical discussion of the merits and the demerits of the program. The suggested policy is based on the guidelines set forth by the Wisconsin Coalition against Domestic Violence. In any case, the suspect must be atleast 17 years of age having a relationship with the victim described as: spouse, former spouse, adult with whom a child was created, and adult with whom the suspect resides or has formerly resided with. The following acts are all grounds for mandatory arrest: intentional infliction of physical pain, physical injury or illness; intentional impairment of physical condition; sexual assault, physical act that may cause a person to fear imminent engagement of the above acts (Wisconsin Coalition Against Domestic Violence, p. 1). The arresting officer may also find reasonable grounds to believe that the person committing the act is or has committed domestic abuse; that the person’s actions constitute a crime; the officer believes that continued domestic abuse is likely; there is evidence of physical injury on the victim; and the suspect is the main aggressor (Wisconsin Coalition against Domestic Violence, p. 2). This mandatory arrest policy can also apply if the violence is reported to the law enforcement authorities within 28 days from the time the abuse occurred. In this policy, the law enforcement officer must arrest the suspect if he has reasonable grounds to believe that the suspect is committing or has already committed domestic abuse and his actions are considered crimes (Wisconsin Coalition against Domestic Violence, p. 2). The predominant aggressor in this case is the first and the most dominant aggressor in a domestic violence incident. In order to prevent further violence on the victims, the police officers must consider the history of domestic abuse between the parties; the statements made by witnesses; the degree of injury inflicted on the victim/s; the extent of fear felt by the victim against the aggressor; whether any party is threatening or has already threatened future harm on another party or family; and whether either party acted in self-defense or in defense of any other person under the circumstances (Wisconsin Coalition against Domestic Violence, p. 2). The decision of the police officer in carrying out the arrest under the above circumstances is not based on the consent granted or not granted by the victim or any other party having any relationship with the parties (Wisconsin Coalition against Domestic Violence, p. 2). His decision would also not be based on the presence or absence of any visible injury on the victim. In instances when no arrest is carried out by the law enforcement officer, despite there being reasonable ground to believe that the suspect has committed or is committing domestic abuse, the officer shall make a report indicating his reasons for not carrying out the arrest. Such report shall be submitted to the district attorney’s office, and the DA’s office shall have to carry out an assessment of the incident to determine if any charges should be filed against the parties involved (Wisconsin Coalition against Domestic Violence, p. 3). The arrested aggressor shall avoid the residence of the victim for atleast 72 hours following the incident; he shall avoid any contact with the victim or ask any other person, except law enforcement officers or his lawyers to contact the victim. Law enforcement officials carrying out the arrests during these domestic violence incidents shall be immune from civil and criminal liability, so long as the decision was made in good faith and with the proper application of the minimum requirements of a proper arrest. In determining the likelihood of continued violence, the mandatory arrest policy would require the officers to evaluate such likelihood. These officers shall consider if the suspect has had previous arrests for domestic violence; if he has ever violated a restraining order; if the suspect has had a history of assault; if the suspect has made previous statements of future abuse; and if the victim has expressed fear of continued violence from the suspect (Wisconsin Coalition against Domestic Violence, p. 4). Theoretical and Ideological Underpinnings In recent years, the policy preference for arrest has been attached with the desire to reduce police discretion during domestic arrests. The result of this has been the implementation of mandatory arrest policies mandated through administrative or legislative acts (Buzawa and Buzawa, p. 126). This practice has become the standard for domestic violence because it has been assumed that the impact on victims, the aggressors, and the society were responsible for such changes in policy. The implementation of the mandatory arrest policy has been based on the belief that the imposition of said policies is important in actually changing street-level justice (Buzawa and Buzawa, p. 126). Another assumption also sets forth that legally eliminating officer discretion on the incident in question would impact on these officer’s behavior in the streets. The supporters of the policy do not necessarily agree with the fact that abuse of discretion is the main issue affecting police behavior. They actually believe that the main issue is the vagueness of the relationship between the police officer and the citizen in the domestic violence setting (Buzawa and Buzawa, p. 127). For the most part, it is assumed that the officer must draw from his previous experiences to assess the situation and evaluate the consequences of his actions. With such determination, he can apply his discretion to make clear and appropriate interpretations of vague facts and circumstances (Kelly, p. 97). In domestic violence cases, police officers must judge whether to make an arrest, to warn the parties, or to simply separate the combating parties. Police officers know that carrying out arrests in the domestic setting may prove futile in the long run, however, the importance of using their discretion in these settings is the governing principle in the process of making these arrests (Kelly, p. 97). Those who support the mandatory imposition of arrests acknowledge the fact that most police authorities are either ill-equipped to handle domestic violence cases or oppose police interference (Buzawa and Buzawa, p. 127). Through the implementation of mandatory arrest measures, a change in the behavior of the officers is forced on to them, without their attitudes on domestic violence situations being changed. Changes in their attitudes would likely come in time after they have been subjected to trainings on the rationale of these mandatory arrests. The implementation of a mandatory arrest policy also increases the possibility for convicting offending parties. Arrests indicate that the officers consider a probable cause for a crime to have occurred and the defendant carried out said crime (Stark and Buzawa, p. 45). Such arrest would influence the prosecutors and the courts in taking the domestic violence cases seriously. More often than not, judges and prosecutors often look with disfavor upon court actions initiated by victims (Stark and Buzawa, p. 45). Some studies even reveal that these cases are not taken seriously or are dropped immediately even without adequate evaluation. With arrests carried out in these domestic violence cases, more credibility is attributed to the incident – more than just a domestic incident, but one which has adequately been assessed by an officer of the law as a possible crime. Supporters of mandatory arrest also set forth that benefits have been seen for victims of domestic violence in instances when the mandatory arrest policy has been implemented. Some theorists have pointed out that without the imposition of this policy women have become disillusioned with the police for the latter’s inability to protect them from harm (Buzawa and Buzawa, p. 127). Worse, this belief has even prompted them to not call on the police when they feel threatened or when they are on the other end of domestic violence yet again. In addition, mandatory arrest policy is also related to the concept of deterrence with the policy serving as a preventive means for the perpetuation of violent acts in the domestic setting. Mandatory arrest in the domestic setting is also based on the theory that arrest itself would benefit victims and support their status as victims of crimes, and not guilty participants of the violence (Stark and Buzawa, p. 28). In the past, when the offenders were merely admonished for their acts, such offenders were seemingly given more freedom to perpetuate their acts. They believed that since they were just reprimanded, that they can get away with their violent acts. Mandatory arrests serve as more solid warnings and reprimands. Moreover, these arrests also give the victims a chance to avail of support services to help them deal with their traumatic experiences. The burden is placed on the police, not on the traumatized victims (Stark and Buzawa, p. 23). When offenders are arrested, the victims are freed of the violence which may have been a major part of their life and the burden of reprimand and responsibility for said acts are transferred to the police authorities. The policy has also been set forth in order to offer some sort of retribution for the victims. The underlying concept is that with similar factors, victims of violence deserve the same reaction as victims of stranger abuse or violence. Even as this goal of retribution is rejected by many people, it is still the ultimate goal of criminal intervention, discarding the need for vigilantism among victims of violence. Research evidence Based on a study Iyengar (pp. 1-37), mandatory arrest for domestic violence policies are counterproductive. Based on data from the FBI Supplementary Homicide Reports from 1976 to 2003, the level of intimate partner homicide actually increased in states implementing these mandatory arrest policies. This increase may be attributed to two reasons, first, through the increased need for reprisals by the abusers and second is through the reduced reporting by the victims (Iyengar, 2007). The second reason causes more violence to be committed against the victims because they are less protected by the authorities. In studies by the National Institute of Justice (NIJ) covering findings in different US cities, findings establish that the Sherman and Berk results were not the same across the covered cities (Dugan, p. 1). These findings reveal that arrests reduced continued violence in two of the covered cities (Schmidt and Sherman, p. 601). However, in three of the covered cities, mandatory arrests caused increase in domestic violence (Dunford, et.al., p. 183). Studies by Sherman later established that mandatory arrests only seem to impact positively on those who are married or those who have children. In another study by Dugan, Nagin, and Rosenfeld (p. 187), an assessment was conducted on how changes in resources and policies meant to protect battered women affected by intimate partner homicide in 48 of 50 large cities in the US. Since the rates of partner homicide differed in terms of the victim’s race, gender, and marital relationship with the aggressor, their study assessed these relationships based on three dimensions. Their findings revealed that the impact of domestic violence were largely dependent on the type of resources of the victim (Dugan, Nagin, and Rosenfeld, p. 178). The strong arrest policies were linked with decrease in rates of homicide for the white married males. However, these same policies were linked with increase in homicide rates for the black unmarried males and females (Dugan, Nagin, and Rosenfeld, p. 178). Such findings triggered another study which covered data from the National Crime Victimization Study. The goal of such study was to assess the impact of state statutes on the possibility that someone in the household was going to be a victim of domestic assault, that the police officers would be informed of the assault, and that the police would make arrest (Dugan, p. 283). Other findings also established that the victims in states having mandatory arrest policies are not likely to report assaults, that police officers in these states are not likely to make an arrest, and that the homes in these states are not likely to see domestic violence (Dugan, p. 283). In effect, this study claims that the mandatory arrest policies are effective deterrents to the commission of domestic violence. In a study by Strout (p. 27), where she assessed studies of mandatory arrest policies in different states, the author revealed that in Omaha, Charlotte, and Milwaukee, these mandatory arrest policies are not any more effective than other responses in deterring future domestic violence incidents (as cited by Strout, p. 27). In Metro-Dade and Colorado Springs, these arrests did exemplify a deterrent impact based on victim data, however no official arrest reports were seen. Strout (p. 27) further explained that an initial decrease in domestic violence incidents, however this reduction did not last for long and incidents soon increased. In effect, Strout (p. 27) pointed out that the policy may have a deterrent effect in the short term, but in the long term, it may increase the incidents of domestic violence. Arrests were also found to reduce violence in some cities, but increase it in others (Schmidt and Sherman, p. 601). Moreover, some of the studies manifested that arrests deterred the commission of domestic violence only for the offenders who were employed; but it increased it for those who were unemployed. Evidence also seems to suggest that not making the arrests potentially hurt working women, but reduces it for those who are economically struggling (Schmidt and Sherman, p. 49). These authors also suggest that similar exchanges may be seen according to race, marriage, education and neighborhood. These results have prompted the authors to point out that mandatory arrest policies must be repealed, most especially in cities with ghetto populations and high unemployment risks (Schmidt and Sherman, p. 49). All in all, the research findings on the impact of mandatory arrest on domestic violence have not been consistent. Some of these studies also manifest with various limitations. The characteristics of sample offenders, the scope of the intervention, including the types of interventions themselves have not provided consistent applications. The types of cases were also different, creating samples which were not applicable to the general population (Strout, p. 28). In other words, these studies were not carried out in large cities covering a wide range of respondents. In order to establish a clear assessment of efficacy, more studies need to be undertaken and on a larger scale in order to produce acceptable results. Critical Evaluation In assessing the efficacy of this policy, it is important to note that according to various studies, the policy has not exhibited firm and effective deterrence for domestic violence. In fact, it has caused unintended consequences for the parties involved. For one, it has caused victims to be reluctant to seek police assistance. This is primarily due to the risk of dual arrests (Miller, p. 107). In dual arrests both parties allege the other to be the aggressor, including the victim who may have been acting in self-defense (Miller, p. 107). Data also seems to indicate that many more women have been arrested for domestic violence ever since the mandatory arrest policy was implemented (Strout, p. 17). In a 1998 study, mandatory arrest policies caused the increase of three times as many women being arrested for domestic violence, compared to less than twice in incidence for men (Dayton, p. 4). This is a major problem because such arrests can have negative consequences for victims, who often end up losing their access to shelter and transportation; who may end up losing the rights to restraining orders against aggressors; who may end up losing their custody to their children; or who may end up losing access to victim assistance and empowerment programs (Strout, p. 17). These unintended consequences would likely deter victims from seeking help from the police or from reporting the incident to the law enforcement authorities. Another unintended consequence of mandatory arrests is the fact that arresting aggressors are often provoked to become more violent on their partners (Iyengar, p. 7). Studies have even revealed that as the rates of murders by intimate partners have not increased in the past 20 years, it is unfortunate to note that states with mandatory arrest policies have reported a 50% increase in homicide rates, as compared to states without mandatory arrest policies (Iyengar, p. 9). Iyengar sets forth that the increase in homicides has been caused by the arrest policies which is deterring victims from reporting and calling the police authorities (p. 9). In other words, even as the mandatory arrest policy may prevent domestic violence from escalating, if victims are not willing to call the police, the reduction of violence in these instances would be highly unlikely (Strout, p. 18). In any case, mandatory arrests do not seem to prevent violence, more often than not, they actually cause the aggressors to lash out on their victims for having them arrested. This policy has various advantages. First of all, it immediately removes the aggressor from the domestic situation and causes a reduction in the amount of physical damage inflicted on the victim (Harcum, p. 37). Second, it reinforces the criminalization of the domestic violence in the eyes of the police officers and in the eyes of the aggressor; finally, it gives the victims access to support and therapeutic services for the trauma and the physical violence they have endured (Harcum, p. 37). It is however disadvantageous in the sense that it can cause unintended consequences, especially on the part of the victims. These unintended consequences include more violence on the victims. In cases of dual arrests, it may also cause the victims to lose custody of their children and to lose access on other services (Strout, p. 18). Conclusion and Recommendations Basing on the above discussion, it is safe to conclude that the policy of mandatory arrests in domestic violence has effective goals for victims of domestic violence. Potentially it helps remove victims of violence from harmful situations and prevents the aggressors from continuing to harm the victims. However, in its application in different territories, it has presented inconsistent results in terms of reducing domestic violence. In some territories, rates for domestic violence decreased, however, these studies are filled with limitations. The same thing is true for studies which claim that its application is ineffective, and yet limitations also abound in these studies. With the above issues in the application of mandatory arrests in domestic violence cases, I therefore recommend that policy makers also implement therapeutic programs for both aggressors and victims. These policies would help address the emotional issues that both parties are going through which give rise to their status as aggressors and as victims. These programs would address the cause of the domestic violence—preventing repeat incidents in more than just the superficial levels of physical arrest. Another alternative program I would recommend is on the implementation of permanent relocation programs for victims of violence – offering these victims the chance at a new life. Many victims of domestic fear that they may lose custody of their children, they also fear that they would be arrested as aggressors in their attempt to defend themselves. It is therefore important for police officers to undergo thorough training in the assessment of domestic violence incidents – to properly know when and whom to arrest. After such arrests, victims must be given a chance at being permanently being removed from the hapless situations they find themselves in. Only with such measures can mandatory arrests serve the goals of reduced violence in the domestic setting. Works Cited Buzawa, E. & Buzawa, C. “Domestic violence: the criminal justice response”. 2003. California: Sage Publications. Dayton, J. “Intimate Violence: The Silencing of A Woman’s Choice: Mandatory Arrest and No Drop Prosecution Policies in Domestic Violence Cases.” Cardozo Women’s Law Journal, 2003, vol. 281 (9). Dugan, L. “What is Known About Mandatory Arrest for Intimate Partner Violence”. University of Maryland. (n.d). 17 June 2011 from Dugan, L. “Domestic violence legislation: Exploring its impact on the likelihood of domestic violence, police involvement and arrest”. Criminology and Public Policy, 2002, 2 (2): pp. 283-312. Dugan, L., Nagin, L., & Rosenfeld, R. “Explaining the decline in intimate partner homicide: The effects of changing domesticity, women's status, and domestic violence resources”. Homicide Studies, 1999, vol. 3: pp. 187–214. Dunford, F., Huizinga, D., & Elliott, D “The role of arrest in domestic assault: The Omaha police experiment”. Criminology, 1990, vol. 28: pp. 183–206. Harcum, J. “Razing the Castle: Making domestic violence a public issue”. Praxis, 2002, vol. 2, pp. 32-40 Hoctor, M. “Domestic Violence as a Crime against the State: The Need for Mandatory Arrest in California”. California Law Review, 1997, vol. 85(3), pp. pp. 643-700 Iyengar, R. “Does the Certainty of Arrest Reduce Domestic Violence? Evidence from Mandatory and Recommended Arrest Laws. Harvard University, 2007. 17 June 2011 from http://personal.lse.ac.uk/iyengarr/mandatory_arrest_revise_2.pdf Kelly, K. “Domestic violence and the politics of privacy”. 2003. London: Cornell University Press. Martin, M. “Double Your Trouble: Dual Arrest in Family Violence”. Journal of Family Violence, vol. 12(2), pp. 139-157 Miller, N. “What Does Domestic Research & Evaluation Say About Domestic Violence Laws? A Compendium of Justice System Laws and Related Research Assessments.” International Law Journal, 2005. 17 June 2011 from National Institute of Justice. “Domestic Violence Cases: What Research Shows About Arrest and Dual Arrest Rates”. 2008. 17 June 2011 from Schmidt, J. & Sherman, L. “Does arrest deter domestic violence?” American Behavioral Scientist, 1993, vol. 36(5): pp. 601-610. Sherman, L. & Berk, R. “The specific deterrent effects of arrest for domestic assault”. American Sociological Review, 1984, vol. 49 (1): pp. 261–272. Stark,, E. & Buzawa, E. “Violence against women in families and relationship,” Volume 2, 2009, New York: Praeger/ABC-CLIO. Strout, A. “Impact of Mandatory Arrest Laws on Domestic Violence”. University of Vermont, 2009. 17 June 2011 from Wisconsin Coalition against Domestic Violence. “Mandatory Arrest Checklist: Sec. 968.075, Wis. Stats.” 2007. 17 June 2011 from Read More