Prior to 1984, most police could not legally make a warrantless
arrest unless a misdemeanor occurred in the officer's presence, or the
officer had probable cause to believe that a felony had taken place.
Since most domestic violence cases involve simple assault and battery—a
misdemeanor—the police could not make an arrest at the scene. Advising
the husband or boyfriend to "take a walk around the block" was often the
extent of police intervention.
In 1984, the U.S. Attorney General
recommended arrest as the standard police response to domestic
violence. This recommendation resulted from a landmark Minneapolis
controlled experimental study that compared the deterrent effects of
arresting the suspect, mediating the dispute, and requiring the batterer
to leave the house for eight hours. The study found that arrest more
effectively deterred subsequent violence than did the other courses of
action. The results were widely publicized.
That same year, Tracy
Thurman received a $1.9 million settlement from the Torrington,
Connecticut, Police Department for its policy of nonintervention and
nonarrest in domestic violence cases. After the Thurman case, police
departments concerned about similar lawsuits began to rethink their
policies. All fifty states now provide for warrantless arrests in
domestic violence cases.
Since arrest statutes have been
broadened, many jurisdictions have adopted mandatory or pro-arrest
policies. Under these policies, an arrest is either required or
preferred if the police officer has probable cause to believe that a
domestic battery has taken place, regardless of the victim's wishes.
These policies have received mixed reviews. Some advocates maintain that
mandatory arrest not only substantially reduces domestic assaults and
murders, especially when prosecution follows, but also provides police
officers with clear guidelines on how to proceed, correcting the "take a
walk around the block" mentality.
Opponents argue that when
officers are either unable or unwilling to discern who was the initial
aggressor, mandatory arrest policies can result in both parties being
arrested. Thus, these pro-arrest policies have the unintended
consequence of penalizing rather than protecting victims. Others argue
that police ought to have more discretion to handle domestic violence
situations on a case-by-case basis.
Does arrest work? The research
is inconclusive. For example, when the Minneapolis study was replicated
in other jurisdictions, the results differed significantly.
Specifically, arrest consistently deterred employed batterers, but
increased repeat violence among unemployed batterers. Yet, these
findings were largely ignored. Furthermore, between 1992 and 1996, while
the police responded to 90 percent of calls for assistance, in only 20
percent of the cases was the alleged abuser arrested immediately. These
findings raise questions as to how effective arrest policies have been
in reducing recidivism or changing police practices.
Common California Penal Codes Defined:
PC
273.5 (a) - Any person who willfully inflicts upon a person who is his
or her spouse, former spouse, cohabitant, former cohabitant, or the
mother or father of his or her child, corporal injury resulting in a
traumatic condition, is guilty of a felony, and upon conviction thereof
shall be punished by imprisonment in the state prison for two, three, or
four years, or in a county jail for not more than one year, or by a
fine of up to six thousand dollars ($6,000) or by both that fine and
imprisonment.
PC 243 (e)(1) - When a battery is committed against a
spouse, a person with whom the defendant is cohabiting, a person who is
the parent of the defendant's child, former spouse, fiance, or fiancee,
or a person with whom the defendant currently has, or has previously
had, a dating or engagement relationship, the battery is punishable by a
fine not exceeding two thousand dollars ($2,000), or by imprisonment in
a county jail for a period of not more than one year, or by both that
fine and imprisonment. If probation is granted, or the execution or
imposition of the sentence is suspended, it shall be a condition thereof
that the defendant participate in, for no less than one year, and
successfully complete, a batterer's treatment program, as defined in
Section 1203.097, or if none is available, another appropriate
counseling program designated by the court. However, this provision
shall not be construed as requiring a city, a county, or a city and
county to provide a new program or higher level of service as
contemplated by Section 6 of Article XIIIB of the California
Constitution.
