Mandatory Arrests For Domestic Violence Offenders Criticized

The Protection Battered Spouses Don’t Need is the title caption of a New York Times Op-Ed piece this week, online here. From the article by Radha Iyenga, a fellow in health policy research at Harvard,

TWO decades ago, in an effort to curb domestic violence, states began passing “mandatory arrest” laws. Police officers responding to a call for help would no longer need to determine whether one person was truly violent or out of control; every time someone reported abuse, the police would simply be required to make an arrest.

It seemed like a good tactic — at least to people who work with victims of domestic violence. (Police officers tended to be less enthusiastic, because they prefer to make arrests at their own discretion.) Arrests would immediately stop the violence and might discourage abusers from further acts of abuse.

But 20 years later, it seems the mandatory arrest laws are having an unintended, deadly side effect. The number of murders committed by intimate partners is now significantly higher in states with mandatory arrest laws than it is in other states.

The opinion piece goes on to say

What the laws did not take into account was that eventually the victims of violence would come to realize that if they called the police, their abuser would certainly be arrested. And over the years, it turns out, that realization seems to have led victims to contact the police less.

I recently conducted my own study of mandatory arrest laws by comparing the rates of murders by intimate partners before and after the laws went into effect. Intimate partner homicides have generally decreased in the past 20 years, perhaps because greater awareness of the problem of domestic violence has led to the creation of more resources for victims. But in states with mandatory arrest laws, the homicides are about 50 percent higher today than they are in states without the laws.

The mandatory arrest laws were intended to impose a cost on abusers. But because of psychological, emotional and financial ties that often keep victims loyal to their abusers, the cost of arrest is easily transferred from abusers to victims. Victims want protection, but they do not always want to see their partners put behind bars.

In some cases, victims may favor an arrest, but fear that their abusers will be quickly released. And many victims may avoid calling the police for fear that they, too, will be arrested for physically defending themselves. The possibility of such “dual arrests” is most worrisome for victims who have children at home.

The situation is different in incidents in which abuse is suffered by people who are not intimate partners — children, for example. The certainty of arrest does nothing to deter the reporting of such cases, usually by teachers, doctors or other third parties. In fact, my research shows that in states with mandatory arrest laws there are fewer murders of non-intimate-partner family members than there are in states without the laws.

Despite two decades of increased public awareness, domestic violence remains a serious problem. Arresting abusers is often desirable, as are efforts to educate the police about domestic violence and effective intervention and to provide treatment and support for victims. But it makes no sense to keep following a strategy that discourages victims from reporting abuse.

I think in any call for reform it is important to distinguish mandatory arrests for violation of an existing order of protection from arrests at the initial call to the police, before an emergency protective order is entered. I firmly believe that arrests for violation of a domestic violence order lessen the lethality risk of intimate partner violence and doubt that the possibility of future arrests discourages victims from initially seeking protection. Time and studies will tell.
Thanks to Janet Langjahr of Florida Divorce Law Blog for pointing out this editorial.