James and Cindy were having another marital argument. James was holding down two jobs, working 60 hours a week, and liked to have a few beers when he got home from an exhausting day. Cindy was tired of his drinking and wanted to let him know about it.
After exchanging harsh words, James smacked Cindy across the face, splitting her lip. Neighbors, hearing the argument, called for police. Police arrived on the scene and began to sort out the mess. Cindy, however, did not want to press charges.
"Sorry," replied the responding officer. "James is going to jail for felony spousal abuse." Before you go scurrying to your training manuals to find out how someone can be arrested for a felony when the basic crime is a misdemeanor, take a look at how San Diego (Calif.) police have managed to curb the number of domestic abuse homicides.
Through an innovative domestic abuse policy, San Diego now has one of the lowest rates of domestic violence homicides in the country. In fact, domestic violence homicides have dropped from n in 1991 to approximately seven in 1995. In addition, the city's documentation procedures and victim assistance programs have also been highly effective in reducing the number of repeatable assaults.
Tracking the Numbers
According to the U.S. Department of Justice, 22,540 murders were committed in the United States in 1992.
Of those, the relationship between the victim and suspect was known 61 percent of the time. Of that, 15 percent of the murders where the relationship between the victim and the assailant was known had involved a victim described in police records as an "intimate." This means that the victim was a spouse, ex-spouse, boyfriend, girlfriend or intimate partner.
In San Diego, the definition of "intimate" goes a few steps further by incorporating cohabitants, former cohabitants, persons with whom the suspect has had a child, and homosexual partners. This means that just about anyone who has any type of intimate contact with another individual—regardless of the length of time or depth of commitment—can be arrested for domestic violence crimes.
This is an important ingredient to an effective domestic violence policy because, according to a U.S. Department of Justice report based on 1992 statistics, only 34 percent of the victims of domestic violence were attacked by spouses. Another 15 percent were attacked by ex-spouses, with a overwhelming 51 percent being attacked by boyfriends and girlfriends. This latter statistic is what caused the San Diego Police Department (SDPD) to revise its definition of who can be a victim of domestic violence.
Putting Policies in Place
The department has discovered first-hand that it's essential to have a comprehensive policy and procedural process in place to deal with domestic violence situations. According to the 1990 Law Enforcement Management and Administrative Statistics Survey (LEMAS), 93 percent of agencies that have more than 100 officers and 77 percent of the sheriff's departments have written policies concerning domestic disturbances. Additionally, 45 percent of these large departments, and 40 percent of the sheriff's departments have special domestic violence units.
The most important ingredient to an effective domestic violence policy is properly addressing the initial response and procedure of the responding officer. What you do as the primary officer will often determine what happens in couId-whether an effective arrest will be conducted and whether or not proper evidence will be collected.
The following is a basic primer on handling effective domestic violence calls, with the basic precept modeled after the San Diego Police Department's domestic violence policy.
The Initial Response
According to Section 273.5 of the California Penal Code, spousal abuse, or the infliction of corporal injury upon a member of opposite sex with whom the suspect is cohabitating, or on the mother or father of their child is considered a felony.
But when responding to a domestic violence call, remember that the situation can involve many other crimes as well. It could involve simple battery, assault, kidnapping, trespassing, murder, stalking, terrorist threats, spousal rape and many others. The key is to never assume that the people you're going to encounter are merely involved in the types of squabbles that mom and dad used to get in over the television remote.
Second, always remember that domestic violence situations are some of the most volatile environments that you will encounter; therefore, they can pose an extreme risk to officers. Domestic violence stems from a power struggle between two individuals, which is fueled by raw emotions.
The sight of a loved one being carted away by an arresting officer can transform a seemingly calm situation into an instant brawl. Therefore, it is important to ensure that you always have adequate numbers of officers to deal with the situation.
In San Diego, for instance, domestic violence calls are designated as "priority one" calls; therefore, a cover unit is always sent to make sure that two officers are present. If the fight is ongoing when the 9-1-1 call is made, additional officers are often sent out. This ensures that officer safety is maintained.
Remember, while the people you deal with may not get along, it is unacceptable for you to become another victim of the situation.[PAGEBREAK]
As you are driving to the call, discuss your options with your partner. The San Diego Police Department utilizes a contact-and-cover procedure when dealing with response calls, traffic stops, etc.-a policy it developed after a rash of officer fatalities in the 1980s.
Essentially, the process involves one officer handling all aspects of the contact while the secondary office provides cover. This process is highly effective and goes a long way toward ensuring the safety of the officers. When driving to a call, decide which officer will handle the initial contact with the individuals.
If possible, gather information from either your in-car computer or dispatch. Try to ascertain whether or not there have been prior calls to this particular residence; whether any of the individuals named are on parole or probation; if the individuals speak English; whether weapons have been seen; if there are clothing descriptions; and if both parties are still there.
If there is a prior history of domestic violence at this particular location, find out if weapons were used in the past. Information is paramount before arrival to help evaluate any potential threats to you or the victim.
Upon arrival, don't park your patrol car within view of the location you are responding to. This may allow the suspect to see you, become even more enraged at the thought of going to jail, inflict more injury on the victim or have time to gather weapons to assault you with.
Approach from a distance and coordinate directions of entry from each officer as they arrive. If possible, try to coordinate so all avenues of escape are covered should the suspect see you and try to run away. As you approach the residence, all of the same rules apply when nearing windows and doors.
Stay away from the "fatal funnel" and away from windows. You never know if a chair or worse could come crashing through and hit you. Use your ears too. If the fight is still ensuing, use the sound to direct you to the area of the residence or apartment complex from which it originates.
Making an Entrance
Many times, a tight will have subsided by the time you arrive at the scene. When contacting anyone at the residence, first identify how many people are in the residence, their locations and temperaments, and who the suspect and victim(s) are.
If the tight is in progress when you knock on the door, separate all parties and contain all other members of the residence in an area where they can be viewed by both you and your partner. If in doubt, call for more backup, because the last thing you want to do is get into a major fight with family members who fear that you may be taking their relative to jail.
Also, separate the suspect and victim in such a way where they are facing away from one another. This will prevent them from reading each other's facial expressions as they explain the situation. It will prevent further escalation and give you a clear view of your partner's status.
If the victim is not in sight when you arrive, immediately determine the location of the victim and if medical attention is required. If the suspect is still at the scene, determine if any weapons are involved; if so, secure the weapon as quickly as possible.
Then take the necessary time and steps to ensure that the situation is stable enough for you to conduct a investigation without threat to you or your fellow officers. Time is on your side at this point. Use it.
Determining a Crime
While the penal code does allow for misdemeanor citation releases on domestic violence arrests, the San Diego Police Department puts all arrested male suspects in the county jail regardless of whether they committed a felony or misdemeanor.
For the purposes of defining a felony or misdemeanor domestic violence case, the primary dictator is whether or not visible injury exists. If no visible injury exists, then the crime can be punishable as a misdemeanor if the victim wants to place the suspect under private person's arrest.
If there is any visible injury at all, the suspect is automatically arrested and charged with felony spousal abuse. This particular aspect of the SDPD policy does not cover boyfriends and girlfriends that do not live together, or apply to homosexual relationships.
Before you can hook anyone up for domestic violence, though, you must first define the relationship between the victim and suspect. As mentioned before, the SDPD defines domestic violence as abuse committed against an emancipated minor or adult who is a spouse, ex-spouse, cohabitant, former cohabitant, or person with whom the suspect has had a child.
This does include homosexual relationships, but it does not include roommates as long as they have not had consensual sexual relations. Once the determination of intimate status has been made, then you must determine what crimes have occurred.
As an example, a single incident could involve the use of terrorist phone threats, stalking, trespassing, battery and malicious destruction of a telephone. That last one is especially useful in California as it is punishable as a felony. So, as you begin your investigation, explore all possible angles to determine what types of crimes have occurred.[PAGEBREAK]
When deciding on a course of action in any domestic violence situation, do not be swayed by the following:
- The present status of the relationship between the victim and suspect. All that matters is if they have ever had an intimate relationship together.
- Whether or not the suspect still lives at the victim's residence.
- The existence or lack of either a temporary restraining order or emergency protective order.
- The financial consequences of an arrest.
- The victim's history of prior complaints.
- Emotional state of the victim or the suspect.
- The existence of non-visible injuries.
- The location of the incident.
- The prospect that the victim may not go to court or that a conviction may not be obtained.
- The public stature of either the suspect or individual: i.e" famous politicians, football stars, etc. Once a crime has been determined to have been committed, then statements must be taken.
The first rule, of course, is to interview the suspect and victim separately. When initially contacting a suspect, do not immediately Mirandize him or her. At this point, until you have determined both the nature of the crime and relationship between the suspect and victim, the suspect is not under arrest for domestic violence. They are simply under detention for investigation, since you have reasonable suspicion to detain them.
This is critical because many domestic violence suspects, based on their agitated emotional state, will make admissible, spontaneous statements that can be used against them later in court. Let them make all the spontaneous statements they want. Furthermore, because the suspect is in a detention status, simply asking general questions like, "Who are you? and "What's Up?" does not constitute interrogation.
If both the victim and suspect are injured, try to determine who the primary aggressor is. Until then, treat both as suspects, keeping in mind the need for medical help if necessary. Document the victim's condition through photographs, diagrams, etc. Remember some injuries may take days to provide visible documentation, so a follow-up may be required in order to file a felony charge.
Take photos of torn clothing, smeared blood or makeup, telephones torn from wall sockets, or any other evidence of the disturbance. Furthermore, if the victim has a restraining order against the suspect, obtain a copy of the order and valid proof that the order has been served.
If the victim does not have a temporary restraining order against the suspect, then information should be given to them to facilitate this.
In San Diego, victims are given a two-page sheet that lists telephone numbers for more than 40 different agencies. The list includes numbers for the SDPD's domestic violence unit, various women's shelters and the city Attorney's Office.
In addition, it also lists information necessary to obtain a temporary restraining order. Furthermore, officers can have an Emergency Protective Order (EPO) issued immediately if they feel the safety of the victim is jeopardized.
Writing the Report
As with any crime report, the better your report, the better chance you have of obtaining a conviction in court. When writing your report, remain objective in the documentation of the
crime. No one likes to see a battered spouse, but you cannot prejudice your report as it may provide ammunition to the defense attorney in court.
Be sure to include all elements of the crime, the relationship and background of the suspect and victim-and whether or not the victim was advised of a private person's arrest during evaluation. Of course, describe in detail the origin of the call, the investigation and any evidence and drawings you may want to provide of the scene.
The San Diego PD has a very thorough domestic violence supplemental sheet that is included with every report (see sample on page 62). It clearly documents the physical and emotional condition of the suspect and victim, any medical treatment needed and evidence collected; it also provides diagrams to indicate injuries. If nothing like this exists at your department, consider designing a similar sheet to accurately document your cases.
Also, be sure to accurately label and describe each photograph that you've taken of injuries and the victim's physical condition. Also, be sure to obtain and include any medical reports from the hospital should either the suspect or victim require emergency medical treatment or hospitalization for injuries received during the altercation.
If necessary, seek the opportunity to impound any firearms that might be present in the residence. According to section 12028.5 of the California Penal Code, a peace officer at the scene of a domestic violence incident where threat to human life is imminent can impound a weapon that is either in plain sight or obtained through consensual search for the protection of the victim and officers at the scene.
Of course, if you don't have the option of consent, clearly document this in your report, while articulating your decision to remove the weapon. Finally, recognize that some injuries do not present themselves immediately; therefore, you may have to do some follow-up work several days later to document any injuries.
In some cases, this may be done by the detectives in your domestic violence unit. But if your department has no such unit, it becomes your responsibility to ensure that your report is complete and factual.
A Final Note
Domestic violence is a serious crime in America that causes irreparable damage to families and individuals. As peace officers, it is our responsibility to make an extra effort to do a complete and thorough report on each and every domestic violence situation.
It is also our responsibility to make sure we do it safely without risk of injury to ourselves and our fellow o/ricers. By doing so, we can play a critical role in making those who commit these crimes spend time behind bars thinking about their actions.
John Pentelei-Molnar is a POST law enforcement trainer and reserve officer for the San Diego Police Department.