Battling domestic violence: replacing mandatory arrest laws with a trifecta of preferential arrest, officer education, and batterer treatment programs.

AuthorZelcer, Amy M.


On June 27, 2005, with its decision in Castle Rock v. Gonzales, (1) the United States Supreme Court delivered a crushing blow to mandatory arrest statutes--laws requiring police officers to arrest suspected batterers where there is probable cause to believe abuse has occurred, regardless of officer discretion or victim preference. The events of the Gonzales case were, in the words of the Supreme Court, "horrible" and "undeniably tragic." (2) In 1999, Jessica Gonzales obtained a domestic violence restraining order, shielding herself and her three daughters from her abusive ex-husband, Simon Gonzales. (3) About one month later, Mr. Gonzales abducted and eventually murdered their three daughters despite Ms. Gonzales's repeated calls to the Castle Rock Police Department notifying them of her ex-husband's violation of his permanent restraining order. (4) Colorado law mandates an arrest for such a violation. (5) However, the Supreme Court found that, despite Colorado's mandatory arrest statute, the enforcement of the restraining order was not, in fact, mandatory. (6) The Court dismissed Ms. Gonzales's complaint. (7)

The Court's holding in Castle Rock calls the validity of mandatory arrest statutes nationwide into question. (8) In the wake of this decision, advocacy organizations and legal scholars have decried the "backward step" the decision represents for victims of domestic abuse. (9) Many scholars are scrambling for ways to fight against the Castle Rock holding to ensure the effectiveness of mandatory arrest statutes. (10) Some advocate doing so by traditional means: state legislative action aimed at amending mandatory arrest laws by adding stronger language, which would give law enforcement clear direction, and by increasing penalties for violating restraining orders. (11) Other scholars look to the role of international tribunals in influencing United States policy. (12) Despite the tragedy of Castle Rock and the ongoing problem of domestic violence, such efforts to circumvent Castle Rock are misguided.

This Note posits that the Castle Rock decision presents an opportunity to attack domestic violence from a different angle, rather than an occasion to further enshrine mandatory arrest statutes. Part I will discuss the history of domestic violence law in the United States, the development of state law protection, and the birth of mandatory arrest statutes. Part II will argue that mandatory arrest statutes introduce major problems and should be replaced. To do so, the Part discusses several negative effects of mandatory arrest laws, including a lack of improvement in perpetrator behavior, the disempowerment of women, an increase in female arrests, particular threats to women with children, adverse effects on poor and minority communities, and various procedural problems. Finally, Part III will suggest a three-pronged strategy for effectively battling domestic violence: (A) preferential arrest statutes, (B) improved education of law enforcement officers regarding the seriousness of domestic violence, and (C) mandatory treatment programs for batterers.


    Jurisprudence and attitudes regarding domestic violence have progressed significantly over the last several hundred years. Colonial law permitted spousal abuse based on the English common law of the "Rule of Thumb." (13) This turn of phrase referred to a man's authority to beat his wife with a '"rod not thicker than his thumb.'" (14) The traditional institution of marriage in the United States stemmed from English common law roots, in which a woman did not exist as an independent legal entity upon marriage to her husband. (15) Husbands were legally responsible for their wives' conduct. (16) By the same patriarchal reasoning, husbands had the right to control their wives' behavior even by physical force or violence. (17) Interactions between husband and wife were considered private, and efforts to expose those interactions through spousal abuse proceedings would introduce unnecessary public shame. In fact, the Mississippi Supreme Court affirmatively gave husbands permission to hit their wives in emergencies. (18) Marital privacy was sacrosanct.

    Legal recourse against spousal abuse did not begin to take form until the late nineteenth century. In 1871, the Alabama Supreme Court delivered one of the first rulings that prohibited husbands from physically abusing their wives. (19) A Massachusetts court followed suit the same year, (20) and in 1883, Maryland enacted the first law criminalizing spousal abuse. (21) Public sentiment toward domestic violence began to shift as well, due in part to the increasingly "companionate" conception of marriage as an institution. (22) Indeed, a nineteenth century family law treatise recognized that "the rule of love [had] superseded the rule of force." (23)

    Moving into the twentieth century, special family courts were established to field domestic relations issues. These courts were staffed with social workers who emphasized counseling for married couples to address domestic violence situations, rather than using the criminal justice system. (24) Prior to the 1970s, there were no shelters devoted specifically to aiding women escaping violent home or relationship situations. Battered women had to seek refuge in catchall homeless shelters or religious shelters, which stressed the importance of family unity--in effect, validating patriarchal relations within the home. (25)

    A second wave of grassroots feminism in the 1970s brought the problem of domestic violence to the forefront of public opinion. (26) In response, many cities established shelters devoted specifically to caring for battered women and their children--a critical development for abused women. (27) "In 1979, President Jimmy Carter established the Office of Domestic Violence within the U.S. Department of Justice to disseminate information about spousal abuse." (28) Advocates also demanded police intervention on behalf of abused spouses and advocated further legislation to address domestic violence. (29) During this period, many states passed statutes to provide for civil protective remedies. (30) These developments signaled that domestic violence was a criminal harm against the public, not confined to the private sphere, and that it should be treated as seriously as an assault against a stranger. (31)

    Yet, despite these developments, the response by the criminal justice system was still grossly insufficient. One study conducted in the early 1970s showed that out of twenty-three cases in which men were arrested for severely beating their wives, only nine of the defendants went to jail. (32) The author of the study attributed the lenient sentencing to the court's belief that the men were merely "responding to marital stress" or to their wives' incendiary conduct. (33) Women were "agents provocateurs" in their own thrashings. (34)

    The "front end" of the criminal justice system was similarly toothless, as law enforcement officials were often unwilling to intervene in what they characterized as private, domestic matters. (35) This attitude is evident in a 1984 case, Thurman v. City of Torrington, (36) In Thurman, police failed to respond to ongoing, escalating abuse of Mrs. Thurman by her husband. (37) Although Mrs. Thurman had a judicially issued restraining order, her husband continued to harass, threaten, and abuse her over the course of several months. (38) During one such episode, she called the police, who did not arrive for twenty-five minutes. (39) Once an officer arrived, he watched without intervening as the man kicked his wife's head until her neck broke. (40) The officer continued to stand idly by while the batterer grabbed his child and told the child that he had "'killed [his] [expletive] mother.'" (41) It was not until another half-hour passed and the husband attempted to attack his wife again while she was on a stretcher being loaded into an ambulance that the police finally wrestled him to the ground and arrested him. (42) This case highlights the criminal justice system's failure to safeguard victims of domestic violence during this era. The Thurman tragedy, however, inspired a turning point of improvement in the legal system's response to domestic violence. (43)

    Following 1983, "there was a dramatic shift in the police response to domestic violence." (44) This stemmed largely from the Thurman tragedy, but also resulted from the publication of an empirical study of the effects of mandatory arrest in domestic violence incidents. (45) The Minneapolis Domestic Violence Experiment (46) in 1984 was considered one of the most rigorous studies of its kind and was the first controlled, randomized experiment in history on the use of arrest for any offense. (47) The National Institute for Justice funded and the Police Foundation conducted the experiment. (48) The study involved 314 incidents of domestic violence, each randomly assigned to one of three experimental conditions: mandatory arrest of batterers upon reasonable suspicion, counseling by officers, or temporary separation of the parties with the threat of arrest for future incidents. (49) The results of the experiment were striking: "arrest worked best." (50) Arrest and a night in jail cut in half the risk of recidivism against the same victim over a six-month follow-up period. (51) The New York Times published these findings in April of 1983, (52) and shortly thereafter, the New York Police Commissioner issued orders that required mandatory arrest in domestic violence cases. (53) The United States Attorney General also issued a report recommending that arrest be the standard law enforcement response to domestic violence cases. (54) By the early 1990s, however, only seven states had passed mandatory arrest statutes for domestic violence. (55) It was not until the infamous murder of Nicole Brown Simpson and the media firestorm it...

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