Twenty years ago, typical domestic violence calls were brushed off as trivial disputes to be settled behind closed doors. Police would either admonish the couple to stop fighting or try to mediate their dispute. By the late 1980s, however, states began to treat domestic violence as a crime rather than a private affair.
Between 1984 and 1989, arrests for minor assaults increased nationally by 70 percent, with domestic violence accounting for a large portion of the increase, according to a report by Lawrence Sherman, a researcher who studied mandatory arrest policies in Minneapolis.
Today, at least 19 states and the District of Columbia have passed mandatory arrest laws that require officers to arrest the perpetrator whenever they have probable cause to believe that abuse has taken place. And the overwhelming majority-at least 90 percent-of police agencies at least encourage arrest for misdemeanor domestic violence, compared to 10 percent in 1984 and 43 percent in 1986. Depending on the state, probable cause may require visible signs of injury, an officer's belief that abuse will continue without an arrest, or the use of a dangerous weapon in the offense.
The trend toward mandatory arrest laws and prosecution without a victim's cooperation has not occurred without controversy. Even Lawrence Sherman, who coauthored the landmark Minneapolis study suggesting that mandatory arrest decreased recidivism rates. has argued that arrest should be the preferred policy--but not mandatory.
Subsequent experiments with mandatory arrest have presented mixed results. It has deterred recidivism in Minneapolis: Colorado Springs. Colo.: and Metro Dade, Fla.: but backfired in Omaha. Neb.: Charlotte. N.C.: and Milwaukee. Wis. Sherman attributed the differing results to the racial composition of the cities and the suspect's "stake in conformity," or how much the suspect has to lose by being arrested (Sherman found that married and/or employed suspects were more greatly deterred by being arrested).
Other critics have viewed the changed policy as moving a victim from one controlling situation to another where "she has no choice. But domestic violence counselors see mandatory arrest laws as critical in their fight against domestic violence. Asking a victim whether she wants to press charges against her abuser leaves the decision up to someone who is not in control of her own life.
"If you give her control, you've essentially given control to the man (who abuses her). When you live with an abuser, he controls every decision they make." said Sarah O'Shea, executive director of the Nebraska Domestic Violence Sexual Assault Coalition, based in Lincoln. Neb. Mandatory arrest laws also give victims an "out." She can tell her abuser that she's not the one choosing to send him to jail.
Now that more states have passed laws enabling or requiring police to arrest without the victim pressing charges, more prosecutor's offices are choosing to take cases to trial without the cooperation of the victim.
Convictions for domestic violence crimes are possible without a victim's testimony, but only if the police have thoroughly investigated the case and have written detailed reports pertaining to the domestic violence call.
Police should approach the investigation like they would a homicide, because chances are the victim in a domestic violence case won't testify at the trial, said O'Shea. More times than not, the victim probably will not cooperate-at least not by the time the case goes to trial. O' Shea noted. Consequently, a thorough, well documented investigation will increase the likelihood of a conviction. What police see and hear when they first enter the home is key.
"Their minds should be like a video recorder at this point." said Sandra Majors, executive director of the D.C. Coalition Against Domestic Violence.
Law enforcement agencies should have protocols and policies in place to ensure domestic violence reports are not left up to individual officer's discretion, said Debra Robbin of Boston's Casa Myrna Vazquez, the largest domestic violence service organization in New England. These protocols also can protect officers from incurring individual civil liability in lawsuits claiming they failed to protect domestic violence victims.
Such department policies and protocols should address the following items:
- Medical Attention-When responding to a call, police must determine if the victim needs medical attention. It's important to routinely have the victim sign a release for her medical records at the time she is transp0l1ed to the hospital.
The victim's medical records can help document the extent of her injuries, even if the victim refuses to testify against her abuser. Ideally, if a victim is taken to the hospital for treatment, the medical personnel in the emergency room will have been trained in understanding domestic violence as well.
- Victim's Statements-Officers need to document not only what the victim says when they first arrive, but also her demeanor. What the victim tells the police may be admissible in court--even if she doesn't testify-if her statements qualify as an "excited utterance" exception to the general rule against hearsay.
A spontaneous outburst following a startling event may qualify as an excited utterance if the statement relates to the incident. A statement made sometime afterward may still qualify as an excited utterance if the victim is still stressed from the event.
Some agencies, such as the San Diego Police Department. use a standardized supplemental report form for domestic violence calls (see sample on page 62). This fOl1n allows the officer to check off descriptions of the victim's and suspect's behavior. These descriptive words may be described as angry, apologetic, crying, fearful, hysterical calm, afraid, irrational, nervous and threatening.
These descriptions also can enable an expert witness to determine where the couple is in the cycle of domestic violence and help to explain any unusual behavior. For instance, the suspected abuser may seem so nice and calm when the police arrive that it may be hard for a jury to believe that he would have just attacked his wife or girlfriend.