Domestic violence and mandatory arrest laws: to what extent do they influence police arrest decisions?

• Author: Hirschel, David

1. INTRODUCTION

   In an effort to combat intimate partner violence, state laws governing the warrantless arrest powers of the police in domestic violence cases have been greatly expanded over the past thirty years. All states have empowered the police to make warrantless arrests in cases of domestic violence, and some state statutes have sought to reduce police discretion by mandating specific actions be taken when responding to such incidents. The extent to which states have permitted the police to retain discretion varies considerably. While some states allow police a great deal of discretion, many states require more aggressive intervention. While a mandatory arrest law states that an officer must make an arrest if (s)he finds probable cause to believe that an offense has been committed, a preferred arrest law instructs the responding officer that arrest is the preferred response.

   Current research indicates that the passage of mandatory and preferred arrest domestic violence laws has resulted in an increase in arrests for intimate partner violence as well as other relationships included under such statutes. (1) This research also suggests that the increased arrest rate is in part attributable to a disproportionate increase in arrests for females either as a single offender or as part of what is known as a "dual arrest," the situation that occurs when the police arrest both parties involved in an incident for offenses committed against each other. The findings from these studies are limited in that they often include a single jurisdiction or small sample sizes. (2)

   There may also be a "net widening" of domestic violence arrest practices because more recent legislation has considerably expanded the scope of relationships covered under such statutes. While initial domestic violence statutes typically only addressed violence between married couples, definitions have been expanded to encompass a broader range of domestic relationships, such as couples with a child in common, (3) persons in a dating relationship, (4) and adults related by blood or marriage. (5) No research has yet evaluated the impact of the new laws on these other types of domestic violence cases. The question to be addressed in cases of nondomestic violence is whether the increased attention legislation gives to intimate partner violence has a similar impact on non-domestic assaults, or, alternatively, limits the resources or willingness needed to provide a similarly aggressive response to those cases.

   In this study we investigate the impact of domestic violence legislation on arrest practices in police agencies in nineteen states. In the sections that follow, we: (1) describe what is currently known about arrest practices; (2) describe our research approach; (3) present research findings; and (4) discuss the policy implications and future research needs as a result of these findings.

2. THE INCREASE IN DOMESTIC VIOLENCE ARRESTS

   Beginning in the 1970s, political pressure exerted by women's groups, lawsuits brought against police departments for negligence and failure to provide equal protection to female victims in domestic violence situations, (6) and the findings reported by the Minneapolis domestic violence experiment, (7) resulted in a nationwide movement toward arrest as the preferred response to domestic violence. (8) At the core of this movement have been legislative mandates aimed at modifying police behavior. The fulfillment of legislative goals has been evidenced by research reporting increased rates of arrests, prosecution, and conviction, as well as improved responsiveness to victims. (9)

   Prior research indicates that the raw numbers of domestic violence arrests increased in many police departments after the implementation of mandatory or pro-arrest laws and policies. Arrest rates from data collected in the 1970s and 1980s were generally in the 7% to 15% range. (10) More recently, however, these rates have been observed to be 30% or greater. (11)

   Legislative mandates can be expected to promote the desired change, but compliance may impact organizational behavior in unexpected ways. (12) There is an acknowledged need to determine how change impacts police behavior both in intended and unintended ways. (13) Of particular concern has been research suggesting that domestic violence laws have resulted in an increase in female arrests.

   1. THE INCREASE IN FEMALE ARRESTS

      An increase in the number of females arrested for assault accompanied the general increase in domestic violence arrests following the implementation of a preferred or mandatory arrest law. (14) Part of the increase in female arrests may be the result of the increase in cases where the police arrest both parties. (15) The first detailed study of dual arrests examined the disposition of domestic violence cases handled by the criminal courts in Connecticut just after implementation of a mandatory arrest policy in 1988; the study found the dual arrest rate in adult intimate family violence cases to be 33%. (16) More recent research has shown wide variations in dual arrest rates. Where statewide data are available for domestic violence cases, dual arrest rates are as high as 23% in Connecticut, (17) are as low as 4.9% in neighboring Rhode Island, (18) and are 8% in Arizona. (19) The percentage of domestic violence offenders arrested who are women also varies. In these three jurisdictions, the percentages are 30.8%, (20) 17.4%, (21) and 28% respectively. (22)

      In some cases, dual arrests may be the result of legislation, department policies, or both failing to require officers to identify the primary aggressor. In addition, when such provisions are present, police may lack the training or information needed to identify the primary aggressor when responding to a domestic violence assault. This situation may be compounded by batterers who have become increasingly adept at manipulating the criminal justice system, and may make efforts to "pre-empt" victims from notifying police in order to further control or retaliate against them. (23)

      Current political and organizational pressure may discourage officers from arresting women as aggressors, and, unsure what to do, the officers may arrest both parties. This observation is supported by some of the existing research. A 1999 study conducted in Boulder found that male victims were three times more likely than female victims to be arrested along with the offender. (24) Similarly, a study of three Massachusetts towns revealed that male victims were five times more likely than female victims to be the subjects of a dual arrest. (25)

      There are other possible explanations for high rates of female single and dual arrests. Police officers, inclined to assume that adult male against female violence involves a male primary aggressor, may find that they are in a situation where the female (according to both parties' admissions and evidence upon arrival) is the primary aggressor. Research suggests that women do in fact commit a considerable number of violent acts in intimate relationships that do not constitute self defense; the same research has emphasized that the women's rates of violence are considerably lower and their acts are less severe than those perpetrated by males. (26) In addition, a comparison of 1980 through 2003 Uniform Crime Reports ("UCR") arrest and National Crime Victimization Survey ("NCVS") data leads to the conclusion that women have not become more violent. (27) While the UCR data showed that females constituted an increasingly higher percentage of arrests for both simple and aggravated assault, the NCVS data did not reveal a concomitant increase in female offending.

   2. ARREST IN NON-DOMESTIC CASES

      In cases of domestic and non-domestic assault, arrest has generally been infrequent and considered a last resort. (28) Statutes mandating arrest in cases of domestic assault are likely to result in an increase in a more "legalistic" approach to domestic assault resulting in a greater likelihood for arrest in a domestic compared to a non-domestic assault. Because the vast majority of domestic violence incidents involve a female as one of the parties while the majority of non-domestic assaults involve males only, there may be a disproportionate increase in the proportion of females arrested for assault overall as a result.

      Research regarding leniency toward domestic violence compared to non-domestic violence cases has resulted in mixed findings. While some studies indicate that the police are less likely to arrest in domestic violence cases, (29) other studies show a consistent police response to domestic and non-domestic violence cases. (30) A critique of this research is beyond the scope of this Article, but it should be noted that major differences in methodological strategies make it difficult to draw any conclusive results. (31) Further, research attempting to examine data nationally has relied on NCVS data, (32) an approach that cannot account for potentially major, and possibly conflicting, practices among police departments. Moreover, prior research suggests that dual arrest may occur less frequently in intimate partner relationships than in other types of domestic violence situations, such as disputes between siblings or a parent and child. (33)

      In sum, there are several explanations suggested for the increase in domestic arrests observed in the literature. Most hinge on changes in domestic violence legislation. In this Article, we elaborate on prior research by undertaking a more in-depth examination of domestic violence legislation and by conducting a large-scale empirical analysis of police arrest practice and investigating how the structure of domestic violence arrest laws impacts the decision to arrest.

3. RESEARCH APPROACH

   The primary focus of this study is to examine the police response to intimate partner violence and the impact of mandatory and preferred arrest legislation on the police response...