October was Domestic Violence (DV) Awareness month, but the flurry of articles, speeches, and calls for increased funding omitted crucial data. Current DV arrest policies are blatantly unjust and need to be reinvented.

Every year, an estimated one million Americans are arrested on  DV charges. Typically they spend several days in jail. According to the Criminal Justice Review (pdf), only 30.5 percent of those arrested are convicted. The vast majority  of those convicted plead guilty to a lesser crime to avoid trial and possible imprisonment. Thus the percentage of those actually guilty of DV may be considerably lower than 30.5 percent.

If 70 percent of arrested muggers were released without charge, if most of the 30 percent detained were given plea deals, questions would arise about “overzealous” police and prosecutors. With DV the opposite happens. The low conviction rate brings cries for more aggressive policies and prosecution.

Why?

DV is a deeply politicized issue. Gender feminists cast it as a quintessential crime of male oppression; “get tough” prosecutors and politicians use it as a career path; and an “industry” of researchers, social workers, lawyers, therapists, and other experts acquire status and income from DV.

The incentives are for more and not less enforcement, and those accused become increasingly vulnerable to false accusations and the suspension of their due-process rights.

The Evolution of DV Arrest Policy

DV policies vary from state to state, but the general trend is common. Decades ago DV was usually classed as a misdemeanor, and an officer could not make a criminal arrest unless he witnessed the abuse or had an arrest warrant. Instead the emphasis was on separating the parties. In the early ’80s DV advocates protested this “leniency,” and states began to allow warrantless arrests for unwitnessed incidents. Probable cause was still required; typically it was based on the presence of physical injury.

The federal Violence Against Women Act of 1994 (VAWA) changed the landscape in at least two significant ways.

First, VAWA provided grants to states “to promote arrest and enforce restraining orders.” In 2007, for example, Alaska received almost $16 million in grants. (For information on VAWA grants to specific states click here.)

Second, VAWA endorsed “mandatory arrest” policies that legally require police to detain an accused even without clear  evidence.  According to the American Bar Association Commission on Domestic Violence, as of 2007 19 states and the District of Columbia had such policies. The concept of probable cause is not abandoned, but arrest practices often discard it in several ways, including: assuming abusers are male (for example, the Nebraska statute refers to suspects with the words “he” and “his”); counting vague concepts such as “fear of imminent serious physical injury” (as in the Oregon statute) as probable cause; and strongly advising police trainees to err “on the side of caution” and believe the accuser.

When VAWA was reauthorized it endorsed policies that preferred arrest, but did not mandate it; such policies were adopted by several other states. Nevertheless, because non-arresting officers usually need to file a report to explain their decision, both policies tend to function in much the same manner. (For a table of domestic arrest policies by state, click here.)

The Harms of Mandatory and Pro-Arrest Policies

Mandatory and pro-arrest policies inflict serious harms, from moral to utilitarian, including:

• The accused are often denied constitutional rights. The Fourth Amendment requires real “probable cause” before arrest rather than an officer’s discretion. The Fifth and Fourteenth Amendments prohibit government from depriving people of liberty “without due process.”
• No distinction is made between first-time and repeat offenders, between trivial and major incidents.
• The de-emphasis on evidence encourages false accusations and the use of tenuous arrests in divorce proceedings.
• Victims are marginalized. Since prosecution is at the sole discretion of legal authorities, true victims may be reluctant to report loved family members or bread-winners.
• Police services are misdirected. According to a study in one state, before pro-arrest policies, DV arrests accounted for 7-15 percent of total arrests; afterward they accounted for over 30 percent.
• The court system is burdened. According to one survey (pdf), 15 percent of cases in criminal court now involve contempt, typically from violating a DV restraining order.

No solid evidence indicates that current policies prevent domestic violence. Indeed, a former Ohio prosecutor expressed a common sentiment: “In the past, the officers would intervene or separate the parties to let them cool off. Now these cases end up in criminal courts. It’s exacerbating tensions between the parties, and it’s turning law-abiding citizens into criminals.” The criminalization of common conflicts should be a last resort.

No one wishes men to beat their wives (or vice versa) with legal impunity. But current DV arrest policies are unjust in the opposite direction. All arrests must respect due process for the accused and the wishes of the victim. All arrests must be based on evidence.