VIII. Domestic Violence Legislation
While domestic violence has been criminalized in some way in every state, the degrees of the offense and penalties for offenders vary significantly from state to state. For a breakdown of the criminal code provisions, criminal procedure, and police and prosecutor training and guidelines as they vary among states, see Domestic Violence: A Review of State Legislation Defining Police and Prosecution Duties and Powers (N. Miller, 2004).
The criminal justice system has made substantial improvements and changes pertaining to domestic violence offenses over the past 15 years. According to Miller (2004), some of the more noteworthy changes include the adoption of anti-stalking laws in every state, the repeal or limitation of states’ spousal exemption laws in rape cases, and the passage of new domestic violence laws that provide unique penalties in family-related assault cases. In addition, every U.S. state now allows law enforcement personnel to make an arrest without a warrant for domestic violence cases, and penalties that offenders’ have to pay have been increased for violations of protective orders. In many states, reduced court fees and protection for nonmarried couples have made court protection more accessible. While each of these changes is a step in the right direction, domestic violence legislation remains inconsistent across the nation. Significant variations exist from state to state in the degree to which new laws have been adopted and in prosecution rates for offenders.
The most obvious indicator of the way a particular state legislates domestic violence offenses can be seen in whether it categorizes the offense as a misdemeanor or a felony. At the time this research paper was written, 11 states have yet to adopt laws explicitly dealing with domestic violence. Within the other 39 states, the first domestic violence offense can be treated as a felony in 9 states; the second domestic violence offense is treated as a felony in 7 states; and in 18 states, the third domestic violence offense is a felony. In addition, 13 states have enhanced penalties for violations of domestic violence law committed in the presence of a minor, and 3 states have instituted enhanced penalties for the assault of a pregnant woman (N. Miller, 2004).
As the recent changes in domestic violence law have benefited the domestic violence movement to a great extent, advances within law enforcement policies and enhanced prosecutor training have also been making a positive difference. Across the nation, entry-level training for police in most states now includes a domestic violence requirement, with a few states including in-service instruction as well as entry-level training. Also, some states have begun to require knowledge of written policies and procedures as they pertain to domestic violence as a component of law enforcement training (N. Miller, 2004). While the current advancements in police training have yet to reach consistency across the nation, they do provide a stark contrast to such training in the past. For example, police training as it existed in Chicago 40 years ago provided no training for domestic violence; however, it did include 1 hour of instruction on dealing with disturbances in general, out of a total 490 hours of training (Parnas, 1967). Prosecutor training for domestic violence cases has seen a slight improvement, but it lags behind law enforcement. To date, a mere four states require training for prosecutors in handling domestic violence cases; three others offer domestic violence instruction for prosecutors, but not as a requirement (N. Miller, 2004).
Overall, great strides have been made in domestic violence legislation, enforcement, and prosecution. However, the vast inconsistencies among states reveal the need for comprehensive, nationwide policies pertaining to the arrest and prosecution of offenders.
A. Effects of Legislation
The Minneapolis Domestic Violence Experiment (MDVE) was conducted to determine whether arresting offenders for domestic violence significantly reduced subsequent arrests (Sherman & Berk, 1984). Many in the legislative community and elsewhere interpreted the MDVE results, which suggested that mandatory arrest could reduce future arrests, as a strong support for mandatory arrest laws for the law enforcement response to domestic violence. In fact, most states soon passed pro/mandatory arrest statutes, and law enforcement agencies implemented pro/mandatory arrest policies for cases of domestic violence. It did not take long, however, for the practice community to realize that there were going to be several unintended consequences of mandatory arrest policies. For example, as a result of mandatory arrest policies, female arrests for domestic violence have increased dramatically because often, officers who respond to domestic violence calls are unsure which partner is the primary aggressor. If the perpetrator has wounds as well as the victim, the officer is often unable to conclusively identify whose wounds are offensive and whose are defensive. Having not witnessed the altercation, the responding officer has no choice but to arrest both parties (Parmley, 2004). Some feel that as a result of the increased risk for arrest, victims of domestic violence may be less likely to contact the police, thus risking their safety and further enabling the abuser.
Others point to the more hidden consequences that mandatory arrests pose in regard to issues of race and class. As previously discussed, dual arrest rates surged as a result of mandatory arrest policies. For example, the rates of female arrests for domestic violence rose from 12.9% to 21% in the state of Maryland; from 6% to 16.5% in a California study; and shockingly, in the city of Sacramento alone, there was a 91% increase in women arrested, and a 7% decrease in men arrested (Chesney-Lind, 2002). Concurrently, African American females were arrested at almost 3 times the rate of Caucasian women in 1998 (Chesney-Lind, 2002).
In addition, various forms of racial bias have come to light as a result of increased arrest for domestic violence. For example, Maxwell, Garner, and Fagan’s (2001) reanalysis of the MDVE replication studies cites official arrest data showing that men of color are more likely to recidivate. On the other hand, victim interviews have shown that white men were more likely to batter again (Chesney-Lind, 2002). It is theorized that the disparity stems from a stronger likelihood for police to arrest suspects of color, as it has been shown that African American women are more likely to alert authorities when domestic violence has occurred. Accordingly, official data may reflect a disproportionate number of men of color as domestic violence offenders, which promotes racial stereotypes and leads to the overpolicing of people of color (Chesney-Lind, 2002).
Mandatory arrest policies may have caused unintended consequences for victims of lower socioeconomic class as well. For example, victims with limited resources may look to law enforcement as their best option to keep them safe. However, mandatory arrest policies increase the chances that the primary provider will be taken from the home, resulting in a loss of income. As a result, these victims may become less likely to call the police (S. Miller, 1989).
Others debate the issue of whether mandatory arrest policies have been helpful to victims or disempowered them. Many feminists profess ambivalence because they want to hold law enforcement accountable for keeping citizens safe, but they also feel that often a police officers’ power comes at the expense of women, particularly women of color and women of lower socioeconomic status (Coker, 2000).
Coker (2000) also discusses the consequence of having resources focused on arrests to the detriment of other benefits to victims, such as social programs leading to empowerment through education and job training. Having fewer social systems in place to support change leaves the criminal justice system with increased responsibility to produce results. Consequently, a failure on the part of the criminal justice system may breed victims’ antagonism toward the system, thus reducing their likelihood of using police and court assistance in the future, particularly if the consequences include dual arrest or even arrest of the offender against the victim’s wishes (Smith, 2000).
It is important to reiterate that there are benefits to mandatory arrest. For example, a mandatory arrest policy takes the decision out of the hands of the victims, and therefore the batterer should not hold the victim responsible for his or her prosecution. In addition, mandatory arrest policies send a punitive message to batterers and to the community that the criminal justice system responds to the crime of domestic violence in a harsh manner and holds offenders accountable. However, the unintended consequences of mandatory arrest must also be weighed when determining the best policy approach to this crime.