FIGURE 7.1
Of the violent offenders convicted of a crime against an intimate, the majority, 72.3%, were serving time for assault, 12.3% were incarcerated for rape or sexual assault, and 4.7% were convicted of homicide. The remaining 2.4% were convicted of robbing an intimate.
The fact sheet also noted that half of all inmates serving time in local jails had been previously placed under a restraining or protective order. Four out of ten of these inmates had criminal justice status or a protective order in effect against them at the time of the offense.
The Bureau of Justice Statistics report supported arrest in domestic violence cases, stating that it could:
- prevent future criminal behavior
- prevent further injury to the victim
- demonstrate to the offender that he will face legal consequences
- demonstrate to the victim, the offender, and the community that domestic violence is criminal behavior
- increase the number of offenders subject to prosecution, court supervision, treatment, and other community intervention
Arrest gained popularity as a tactic after the publication of a series of six studies funded by the National Institute of Justice known as the Spouse Assault Replication Program. All of the studies were designed to explain how arrest in domestic violence cases could serve as a deterrent to future violence. L. W. Sherman and R. A. Berk, the authors of the influential first study in the series, "The Specific Deterrent Effects of Arrest for Domestic Assault," found that "the arrest intervention certainly did not make things worse and may well have made things better" (American Sociological Review, vol. 49, no. 2, April 1984).
Although Sherman and Berk cautioned about generalizing from the results of a small study dealing with a single police department in which few police officers properly followed the test procedure, they concluded that in instances of domestic violence, an arrest is advisable except in cases where it would be clearly counterproductive. At the same time, Sherman and Berk recommended allowing police a certain amount of flexibility when making decisions about individual situations, on the premise that police officers must be permitted to rely on professional judgment based on experience.
Arrest Is Not More Effective
Sherman and Berk's study had a tremendous impact on police practices, despite the fact that five other Spouse Assault Replication Program studies found arrest had little or no effect on domestic violence recurrence—for example, J. David Hirschel et al. in "The Failure to Deter Spouse Abuse" (Journal of Research in Crime and Delinquency, vol. 29, no. 1, 1992). A survey conducted two years after the Sherman and Berk report found more than a fourfold increase in the number of police departments reporting arrest as their preferred policy in domestic violence disputes.
Arrest Does Deter Some Men
Sherman et al. were among the first investigators to examine and report rates of recidivism in their Milwaukee police study, "Crime, Punishment and Stake in Conformity: Legal and Extralegal Control of Domestic Violence" (American Sociological Review, vol. 57, 1992). The study found that arrest deters men with strong attachments to their local communities, perhaps through employment, friends, or family. Batterers who have little "stake in conformity," such as the unemployed and unmarried, have a tendency to become more violent in response to arrest. However, this landmark study did not consider other variables that might have influenced the results. For example, employed offenders might have less violent histories, less stressful home life, or may be older—all factors that might affect their rates of recidivism.
Peter G. Jaffe et al. in "The Impact of Police Laying Charges" (Legal Responses to Wife Assault—Current Trends and Evaluations [Newbury Park, CA: Sage, 1993]), studied the effect of police intervention in London, Ontario. The participants were ninety female victims of assault. Fifty-two of the women had called for police intervention and filed criminal charges, fourteen had received police intervention but no charges were filed, and twenty-four had neither received police help nor filed charges. Although arrest alone did not decrease the violence in this study, it was a significant deterrent when charges were filed. Jaffe et al. urged that police support be integrated into a community response that includes all aspects of support for battered women.
Warrantless Probable Cause Arrests
In the early 1970s, it was legal for the police to make probable cause arrests without a warrant for felonies, but only fourteen states permitted it for misdemeanors. Because the crime of simple assault and battery is a misdemeanor in most states, family violence victims were forced to initiate their own criminal charges against a batterer. By 2002, West Virginia was the only state that did not authorize warrantless probable cause misdemeanor arrests in domestic violence cases. However, more than half of the states have added qualifiers, such as visible signs of injury or report of the violence within eight hours of the incident. Most state codes authorizing warrantless arrests require police to inform victims of their rights, which include the acquisition of protection orders, as well as referral to emergency and shelter facilities and transportation.
Mandatory Arrests
By 1992, fifteen states, the District of Columbia, and dozens of municipalities had instituted a mandatory arrest policy whenever police were called to a domestic violence situation. Some battered women's advocates do not support mandatory arrest. They fear that poor and minority families are treated more harshly than middle-class families and that if the police arrive and both spouses are bloodied by the fight, both will be arrested, forcing the children into foster care. In Connecticut, where a strict arrest policy is mandatory, the dual arrest rate is 14%.
Recent data suggest that mandatory arrests may actually increase violence, especially if the batterer is unemployed or has a criminal record. Some observers suggest that mandatory arrest should be replaced with mandatory action, such as providing transportation to a shelter or granting the victim the option to have the offender arrested. Mandatory action would allow police officers to make decisions appropriate to each individual case.
Some police departments have adopted a presumptive arrest policy. This policy means that an arrest should be made unless clear and compelling reasons exist not to arrest. Presumptive arrest provisions forbid officers from basing the decision to arrest on the victim's preference or on a perception of the victim's willingness to testify or participate in the proceedings. Proponents point out that arresting an offender gives the victim a respite from fear and an opportunity to look for help. Furthermore, they claim it prevents bias in arrests.
Evan Stark, in "Mandatory Arrest of Batterers: A Reply to Its Critics" (Do Arrests and Restraining Orders Work? [Newbury Park, CA: Sage, 1996]), offered reasons for a mandatory arrest policy other than deterrence. Stark asserted that mandatory arrest policies provide:
- a standard against which to judge variation in police responses
- immediate protection from current violence and time for victims to consider their options
- measurable reductions in the overall incidence of domestic violence directly (because arrest might deter recidivism) and indirectly, by sending a clear message that battering is unacceptable
- access for victims to services and protection that would not be available outside the criminal justice system
However, David Hirschel and Ira W. Hutchinson found support for a police policy of taking victim preferences into account in the decision to arrest in their study "The Voices of Domestic Violence Victims: Predictors of Victim Preference for Arrest and the Relationship between Preference for Arrest and Revictimization" (Crime & Delinquency, vol. 49, no. 2, April 2003). Victims based their preferences for arrest on the seriousness of the violence and the perpetrators' prior abusive behavior; victims in fact proved to be good judges of the seriousness of the violence and the likelihood of it recurring. The researchers found that victims who wanted their abusers arrested were more likely to suffer subsequent abuse than were victims who did not want their batterers arrested. "Based on these data," the authors wrote, "victim desire for arrest of the offender would appear to be a factor that police should take into account in determining subsequent action."
Police Response Can Empower Victims
Researchers Carolyn Hoyle and Andrew Sanders contended that police intervention in cases of domestic violence can do one of two things—either further intimidate women or actually help them to improve their own circumstances. In "Police Response to Domestic Violence: From Victim Choice to Victim Empowerment?"(British Journal of Criminology, vol. 40, 2000), they examined the views of victims about the value of criminal justice interventions in light of pro-arrest policies and the establishment of specially trained domestic violence units and officers.
Hoyle and Sanders interviewed sixty-five women in three communities in Thames, England, to find out what the victims wanted when they called the police to intervene in domestic disputes. In earlier studies, Hoyle and Sanders characterized the police policy as "victim's choice"—the police approached each instance of domestic violence according to the woman's preferences about pursuing legal action. This policy was widely criticized because it allowed victims to decide on actions without consideration of the consequences of nonprosecution on perpetrators and victims. Critics also felt that many women were not actually expressing their true wishes and that their choices were coerced or influenced by fear of retribution from their abusers.
Since 1993, Thames police policy has shifted from victim's choice to pro-arrest, on the premise that arrest and prosecution better serve the interests of victims and the community at large. The policy changed in response to U.S. research findings that arrest correlates with short-term reductions in domestic violence. The new British policy based on these findings favored immediate intervention—arresting the abusers—and longer-term intervention—pressing charges that presumably might result in sentences of rehabilitation or incarceration. The authors argued that this policy is the opposite of the previous one because it assumes that policy makers are more capable of deciding on correct courses of action than the victims themselves.
More than half (thirty-one) of the survey participants called the police with the intent of having the offender arrested, but the majority of these women did not wish to pursue prosecution. The balance either wanted the offender removed from the scene—simply to get a break from the abuse—or wanted the police to calm the agitated man. The women cited a wide range of reasons for their choices, from fear of retaliation, to a desire to remain married, to genuine sympathy for a substance-abusing or otherwise impaired spouse.
Hoyle and Sanders found that arrest, with or without prosecution, might in some instances act as a deterrent, but it does not reduce violence. They asserted that arrest is most effective when combined with other strategies, such as treatment programs, incentives to reduce recidivism, and social supports for women. They termed this the "victim empowerment model" and proposed that it might prove more effective than the exclusively legal remedies provided by either the victim's choice or pro-arrest policies.
Hoyle and Sanders concluded that battered women are a diverse group in need of different kinds of support. They also observe that victims' preferences are shaped by a variety of factors and that an ideal approach would be to support each victim to change her circumstances in order to reduce coercion and to help her to make different choices, including the decision to end the violent relationship.
JoAnn Miller, in "An Arresting Experiment: Domestic Violence Victim Experiences and Perceptions," focused on the Spouse Assault Replication Program victims' perceptions of police interventions and arrest (Journal of Interpersonal Violence, vol. 18, no. 7, July 2003). She examined two concepts of power: personal power (control of economic and social resources) and legal power (perceived empowerment in response to police intervention).
Miller found that women did not use their sense of personal power (derived from an independent income) to end domestic violence. But, she found, victims' perception of legal power (derived from their satisfaction with the police action taken) could be used to feel safer and to control interactions with violent partners in the future. She concluded that "the most reasonable criminal justice and social service responses to domestic violence are those that consider the victim's needs by taking into account her subjective experiences, her cultural and social resources, and her personal and legal resources." In other words, mandatory arrest policies tend to undermine victims' personal power because they do not take into account individual victims' needs.
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