Annually in the United States there are about seven million people physically assaulted by an intimate partner. Mandatory arrest laws for domestic disputes was the nation’s response to the staggering statistic that women account for two out of three murder victims killed by an intimate partner. Mandatory arrest is a form of warrantless arrest that requires the officer to arrest an individual whenever there has been a call for police assistance related to a domestic dispute. Intimate partner homicide is a serious issue that impacts our nation, almost one out of five of homicide victims in the United States were killed by an intimate partner. Domestic dispute calls make up a large majority of what police officers respond to daily. Domestic violence was originally seen as a private matter between a man and his wife that happened inside an individual’s home. The government would be overstepping if they tried to intervene in matters of the home which included violence, beatings, and abuse. Because of a women’s movement in the 1970s raising awareness of domestic abuse, many states decided to implement mandatory arrest laws for domestic disputes. There are currently twenty-four states in the United States that have a provision in their statutes for mandatory arrest in regard to domestic disputes. Currently, there are three categories of arrest power applied by various states’ statutes for intimate partner violence/domestic violence: mandatory, preferred, or discretionary. Some states have decided to create hybrids of the three categories with certain factors, such as physical injury or felonies, that increase police arrest power from discretionary or preferred arrest to mandatory arrest.
Mandatory arrest laws sound great in theory because the perpetrator will be arrested for the abuse, and the police are able to separate the abuser from the victim; however, there are many negative and unintended consequences of these laws. The police may arrest the wrong person because mandatory arrest laws force officers to decide who either is at fault or who is the primary aggressor. Determining who the primary aggressor was in the situation can be difficult because domestic abuse is personal and complex. The two people involved have usually known one another for several years and have been sharing a home and essentially every aspect of their life for several years. The abuser knows exactly what to say to push the victim over the edge and cause them to become violent. Another issue with domestic abuse/intimate partner violence is that it consists of intimidation, threats, and emotional abuse which is hard to prove without a witness present or a camera capturing the abuse. This poses an extreme challenge for the officer to determine the primary aggressor because it becomes a “he said, she said” situation. Another option for police is to arrest both people involved, which is considered a dual arrest. Officer will make a dual arrest and then let the court decide who is guilty, but this also does not help or benefit the victim of the abuse. Mandatory arrest laws force an officer to take someone to jail even though that will not be effective at deterring or preventing future abuse. In a nationwide study, intimate partner arrest rates were 97% higher in states with mandatory arrest laws compared to states with preferred arrest laws. Additionally, the study found that in states that had mandatory arrest laws there was an increased likelihood of a dual arrest when compared to preferred arrest laws.
Dual arrest also poses an issue in many ways because many times the real victim was not an aggressor, but nevertheless will be arrested with the perpetrator. In one study they found police made the highest number of dual arrests in jurisdictions that had mandatory arrest laws. An arrest on someone’s record can be a stigma that prevents them from obtaining a good job or decent housing. Dual arrest can also be detrimental if the two adults have children because then the children won’t have either parent and the children will have to go with a relative or into child protective services system.
There is inconclusive evidence as to whether arrest is actually an effective deterrent for perpetrators of domestic violence. Although police intervention stops the abuse for a short period of time, sometimes this leads to retaliation and makes the abuse worse for the victim later on. Further, some research suggests that arrest may be a short-term deterrent, but that over time it does not lessen abuse. Additionally, there is some research that mandatory arrest laws discourage victims from calling the police and potentially increase intimate partner homicide rates by 60% in mandatory arrest law states. The issue with this area of the criminal justice system is that a large portion of abuse is unreported, and the victims often do not want to get the criminal justice system involved in their lives unless absolutely necessary. Further research should be done in this area to fully understand how arresting a perpetrator of domestic violence impacts future abuse. Additionally, arresting the perpetrator after a domestic dispute might not be in the best interest of the victim and might not be what the victim wants. Many victims are attached to their abusers either financially, emotionally, or a mix of the two. Victims might rely financially on their partner to provide for them, and if that partner is arrested, they could lose their job and income for the household.
Mandatory arrest statutes should be changed to preferred arrest or officer’s discretion because mandatory arrest is not effective in every situation and sometimes results in victims being arrested. Preferred arrest allows the officer to use his training, knowledge, and experience to choose to arrest when necessary. Mandatory arrest laws have unintended negative consequences on victims of domestic violence and should be lessened to preferred arrest or officer’s discretion.