Victim or Offender? Solutions to the Arrest of LGBTQ+ Domestic Violence Victims in NYC

Mandatory arrest laws in the domestic violence context were originally well-intentioned, meant to simplify decision-making for officers and to emphasize the seriousness of domestic violence. However, mandatory arrest laws have disproportionately harmed the LGBTQ+ community due to their failure to account for the unique dynamics of same-sex relationships. This failure has led to higher dual arrests and wrongful arrests of victims. Specifically, this blog focuses on mandatory arrest laws in New York City and steps that the New York Police Department can take to reduce wrongful arrests and create more trust with the LGBTQ+ community.

At the initial adoption of mandatory arrest laws, New York did not include primary physical aggressor language, leading critics to predict the trend of high dual arrest rates. The law was amended to include this language but has proven inadequate. Officers are currently instructed to determine the primary aggressor based on factors such as:  “(a) The comparative extent of any injuries inflicted by and between the parties, (b) Whether any of the parties is threatening or has threatened future harm against another party, family, or household member, (c) Whether any of the parties has a prior history of domestic violence that the uniformed member of the service can reasonably ascertain, and (d) Whether any such person acted defensively to protect himself or herself from injury.” In practice, officers often rely on physical appearance or perceived strength, typically assuming the female is the victim in heterosexual relationships. For LGBTQ+ couples, determining the primary physical aggressor is more complex, and the current heteronormative framework of the Patrol Guide leads to misidentification and contributes to dual arrest or victim arrest.

When police respond to domestic violence calls involving same-sex couples, dual arrests are significantly more common than in heterosexual couples. In fact, dual arrest is over 20% more likely for lesbian and gay couples than heterosexual couples. If both individuals in the relationship are male presenting, they are 52.8% more likely to both be arrested. Equally as alarming, “31% of same-sex [Intimate Partner Violence] victims said they had been arrested rather than the abusive partner.” For couples where both individuals are female, research indicates that the more masculine presenting partner is more likely to be identified as the abuser, regardless of the actual power dynamics in the relationship. It is important to note that this phenomenon effects cisgender and transgender individuals, but this blog primarily addresses cisgender individuals.

Eliminating mandatory arrest laws altogether risks returning to an era where domestic violence calls did not lead an arrest at all. However, reforms are necessary to mitigate harm to victims of domestic violence in same-sex couples. The current language in the Patrol Guide is only truly inclusive of heterosexual couples, as it does not consider dynamics past male physical dominators and women victims.

Currently, the NYPD Patrol Guide advises officers to interview individuals separately but lacks standardized questions to determine the primary aggressor. Implementing specific questioning protocols, similar to those used by healthcare providers assessing domestic violence, would offer a more detailed investigation. To make this section about primary physical aggressors more inclusive, detailed information about the entirety of the relationship, as opposed to a view of a single incident, should be evaluated.

This form of questioning could include inquiries about relationship dynamics, such as asking both parties on their “feelings or reactions to an incident,” the nature of the use of power or privilege by an individual in the relationship, and the decision-making trends in the relationship. These questions could give officers more insight as to whether the couple acts as a team, or if one person tends to take the lead in several aspects of the relationship. Further inquiry could determine if it is one individual making the majority of decisions and, if so, whether it is a result of convenience or an abuse of power. Lastly, officers could ask how the person feels about their access to utilizing community resources and what, if any, steps they’ve taken in the past. This questioning enhances the investigative process beyond current Patrol Guide requirements and could help prevent revictimization of abuse survivors in same-sex relationships.

There is no perfect solution for combatting unintended consequences of mandatory arrest and primary aggressor protocols, especially when it comes to a crime as private and complex as domestic violence. However, inclusion of more detailed language in the New York Police Department Patrol Guide, such as guidelines for assessing relationship dynamics, would encourage officers to conduct a more comprehensive investigation that often is not necessary for heterosexual couples. Expanding the language beyond the currently implemented heteronormative foundation would allow for all victims to be more adequately protected. Hopefully, this solution could reduce the underreporting by the LGBTQ+ community. Officer conduct consistent with updated public Patrol Guides could mend this strained relationship, as new protocols would be more inclusive of these communities.