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Domestic violence has long been a sensitive subject matter. Until recently it was all but ignored by our government's legal system and traditionally treated as a private matter. As society's views evolved, government policy slowly followed suit, extending its protective abilities to encompass life within the home. This policy took away the victim's choice of arrest and prosecution and placed it with the state, thus minimizing the victim's role in the once private situation. Studies prior to, and post implication, have produced mixed results regarding the effectiveness of such a policy. Is the policy protecting the victim and deterring the offender as it was intended to do? Is it truly an effective policy? A discussion of existing literature seeks to answer these questions.
Miller (2004) reported that from 1997 to 2003, state-level legislatures passed over 700 statutes related to domestic violence. These statutes came about due in part to the outcry from women's advocacy groups over the inadequate response to domestic violence in the 1970's (Sherman, 1992). Civil suits against police also proliferated, further exacerbating the need for reform (Frisch, 1992). Preliminary experiments on recidivism rates following one of three courses of action (mandatory arrest of batterer, separation of perpetrator and victim, or counseling of the couple by the responding officer) in Sherman and Burk's (1984a and 1984b) Minneapolis study, found that mandatory arrest was substantially more likely to reduce recidivism than either of the other options. This finding spurred the forward movement of mandatory arrest policy in the U.S., before the intricacies of the policy implications were fully understood.
Pro-enforcement attitudes of policies like mandatory arrest and mandatory prosecution were very slow to take root within police departments due to the dynamic nature of domestic violence (Mitchell, 1992). A recent study reexamined the diverse results initially found surrounding the influence of the mandatory arrest policy on police decisions to arrest. In Hott's (2000) study a comparison of arrest determinates before and after the implementation of the mandatory arrest policy from 1993-1997 showed no effect on an officer's decision to arrest. The movement at the time was acting in the hope that reforming the service response of officers would empower the victims and return their voice previously silenced by domestic abuse (Stark, 2004). This inaction on the police's part highlighted the need in that time period for policy reform, along with officers' disapproval of the loss of what was then considered a long-standing patriarchal privilege of discretion.
Subsequent to the Minneapolis study other studies brought to light the varying potential possibilities under the mandatory arrest procedure. Dunford (1990) replicated the Minneapolis study in Omaha, Nebraska and found results inconsistent with previous studies. Arrests did not deter succeeding violence any more so than did mediation or separation. Police response to misdemeanor domestic assault seemed to neither help nor hurt victims with regards to subsequent conflict. Also in contrast to earlier findings, Sherman et al. (1991) found when looking at the length of time in custody that short arrests produced long-term escalation of recidivism. Sherman et al. (1992) found strong evidence that arrest has different effects on different types of people depending on race, socioeconomic status, education, and marital and employment status. Those who were employed, married, and white did show a short-term deterrent effect. Those who were unmarried, unemployed, and high school drop outs showed an increase in violence after arrests. In a study by Tolman and Weisz (1995) supporting results were found regarding the deterrent ability of a strictly enforced mandatory arrest and pro-prosecution policy. Mixed results continue to add to the ambiguity surrounding domestic violence policy and the most appropriate way to resolve the issues.
The need to incorporate other measures of help for the victims rather than simply arresting the offender had become apparent throughout the 70's 80's and 90's (Sherman et al, 1992; Zorza, 1992). Many issues arose regarding the sensitivity with which officers responded to calls producing insecurities unhelpful feelings for the victims. In Minon and Holmes' (1995) evaluation of police responses to mandatory arrest laws they concluded that police training was crucial to successful intervention in domestic violence cases, agreeing with the need to broaden the scope of techniques available. Not every case is the same and with this knowledge Stalans and Lurigio (1995) completed a study which found of the public that women and men both significantly preferred counseling and court ordered mediation to jail or probation. Such findings are necessary to take into consideration for future policy in order to combat the rising concern that the mandatory arrest policy has made domestic violence reports less likely to actually be reported.
Smith (2000) reported that women's perceptions of mandatory arrest and reporting practices were more likely to reduce reporting of incidents by about 13%. The decision is no longer the victims to make, creating unintended consequences throughout society. The decline in domestic violence arrests has also been noted by Felson and Ackerman (2001) who found that victims who know the suspect are more reluctant to sign complaints that enable the arrests, especially considering the seriousness or non-seriousness of the offense and the complexities that will ensue. Not only is this a strain on the victim but the court system is also under added pressure. This influx of arrests could also be contributing to Davis and Smith's (1995) finding of the high rate of displacement in police decisions to arrest to decisions to prosecute they found in the courts four years after the mandatory arrest policy had been implemented. Davis and Smith (2003) also looked at a natural experiment the occurred when a prosecutor's screening policy was liberalized. Once the new policy was in place convictions decreased, the prevalence of pretrial crime increased and victim satisfaction decreased. With the choice to arrest or prosecute no longer that of the victim an overall increase in workloads of the courts and dissatisfaction of many victims has arisen.
Overall, the mandatory arrest policy has seen much debate. With the role of the victim being reduced to next to nothing, and the general dissatisfaction surrounding the typical outcomes of the mandatory arrest policy, researchers have revised their thoughts on the effectiveness of a strict interpretation of the policy. From the limited research literature available, it is clear that a mandatory arrest policy alone will not suffice in handling the domestic violence epidemic taking place in the U.S. Sherman, Schmidt and Rogan (1992) suggest mandatory action rather than mandatory arrest which would allow for more police discretion and more input from the victims involved. They do note however, that more research needs be done regarding just how much input the victim should have in the intervention process. Giving officers more options to handle the ever changing circumstances of any domestic violence case may well lower the number of cases forced on to the already overburdened court system. The safety of the victim will be better understood and better assured as well, if they are given the opportunity to be involved in the process.
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