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or Not to Arrest?
The issue of whether or not to arrest a batterer is a topic of much debate
among womens groups and the police. This is a complicated matter which does
not lend itself to a simple yes or no answer.
The police have been criticized by many womens groups for
being too lax when it comes to arresting the batterer. Pro-arrest forces argue
that assault is against the law; men who beat their wives are lawbreakers and
should be held accountable in a court of law. However, those on the other side
of this issue question the productivity of arresting an abuser. Both the police
and womens groups acknowledge that a batterer who is arrested may be so
infuriated that immediately on release he will lash out against his wife with
beatings even more brutal than those which had taken place previously.
Bard (a psychologist specializing in police family crisis intervention) is
skeptical about the efficacy of arresting batterers. Rather than resorting to
arrest, he recommends that the police be trained in skillful handling of domestic
conflicts. The essence of Bards beliefs on this issue is contained in the
It is my impression that in most instances
disputing parties do not wish to have a criminal sanction applied, such as arrest;
rather, the disputants want the police to do something, however ill-defined
that something may be.
While a serious dispute may itself constitute
a crisis, often it is an expression of a deeper crisis in the life of a family.
If police officers are prepared to deal with family conflicts swiftly and skillfully,
then they are in an excellent position to make discriminations that can ultimately
lead to a constructive outcome. In general, traditional police practice in relation
to family disputes tends to be ineffective for two reasons: (1) it rarely prevents
future violence; (2) it fails to realize the constructive potential inherent in
skillful management of family disputes.
More often than not [arrests] initiate
a judicial process which, experience tells us, has little chance of a productive
outcome. When a family dispute is referred to court, it may be days or weeks before
any action is takenample time for fights either to escalate or to be forgotten.
Moreover, orders of protection, peace bonds, and other criminal sanctions offer
little real protection, and offer even less in meeting the needs of spouses in
conflict. (U.S. Commission on Civil Rights, 1978, pp. 50-51)
In contrast to the views expressed by Bard, a number of prominent
advocates for the rights of women strongly believe that batterers should be arrested.
Fleming (1979) and Fields and Lehman (1977) advocate arresting the batterer, but
they also caution women of the dangers inherent in pressing charges against batterers.
Fleming advises those who decide to prosecute that it is unlikely that [the]
assailant will receive any kind of penalty. Women deciding whether to prosecute
should consider what effect the entire process is likely to have on the batterer.
If the prosecution process itself would be intimidating to the abuser, then his
fear of the criminal justice system may result in a reduction of the abuse. However,
any possible benefits of using the prosecution process as a deterrent to further
abuse are lost if a man realized just how ineffective the judicial system is when
it comes to punishing wife abusers. Even if a batterer is convicted, he will most
likely receive just a short term of non-reporting probation.
of arrest is Loving who recently prepared a monograph for the Police Executive
Research Forum. Loving (1980) states that wife abusers need to recognize that
violence is not condoned by our society and that those who break the law will
be punished. Her reasoning is as follows:
The use of arrest in
spousal violence cases involving serious injury, use of a deadly weapon, and/or
violation of a restraining order is entirely proper and should be required. This
is true for many reasons, but primarily because the elements of a serious criminal
offense exist, and because community standards have shifted sufficiently to support
police intervention in these cases. Moreover, not to arrest in these cases may
suggest to the assailant that violent behavior is not serious and will not be
punished. Theoretically, the threat of arrest, conviction, and punishment is used
as a deterrent force in the community, notifying both offenders and citizens that
incidents of spousal violence are, serious and will result in prosecution. This
is not to suggest that the threat of the criminal sanction will deter all potential
offenders, but rather that it may deter some of them.
An added benefit of arrest is that it can facilitate batterers
taking responsibility for their actions through participation in courtmandated
treatment programs (if such programs exist in their community). Not every domestic
violence case necessitates an arrest. Loving cites the following as examples of
situations in which an arrest should probably not be made: cases in which the
victim refuses to press charges, and cases which are victim-precipitated.
The International Association of Chiefs of Police (IACP) has advocated
expanding the authority of the police in domestic violence cases so that they
can make warrantless arrests for misdemeanor cases. Twenty-two states have passed
such warrantless arrest laws accordance with IACP recommendations. Most of the
new laws permit arrest without a warrant only after an act of domestic physical
abuse has taken place. However, some of the laws contain an additional provision
allowing a warrantless arrest in cases where there is a substantial likelihood
or immediate danger of that [adult family] member being abused (Center for
Women Policy Studies, 1980, pp 1-2).
Even when new laws are passed,
however, there is often a time gap between enactment of the legislation and police
enforcement, because many police officers are reluctant to arrest women batterers.
New laws, in and of themselves, are not necessarily sufficient change-ingrained
practices. This is what led to the landmark Bruno v. Codd case in New York. A
group of battered women filed a class-action suit against the New York City Police
Department, charging that the police had not been enforcing the recently passed
domestic violence laws. The resulting consent decree made the following stipulations:
[It] required the police to respond as soon as possible to every
request for assistance or protection in a domestic dispute. The decree ordered
the police not to refrain from arresting a person simply because there was a relationship
between the victim and the abuser. Further, the decree required that the police
make an arrest if there were reasonable cause to believe that a felony had been
committed against the wife, or an order of protection had been violated.
(Pirro, 1982, p355)
In other words, the Bruno case demonstrated that
family violence victims were entitled to the enforcement of the new legislation
and could not be denied their rights as crime victims (Pirro, 1982, p355).
This court decision has resulted in increased police responsiveness toward battered
women in New York City.
Because the vast majority of abused women
choose to continue living with their partner, programs which help the man
to learn non-violent methods of coping with anger and stress are vitally important.
A growing number of legal remedies provide for court-mandated treatment for batterers.
These new arrest laws and accompanying requirements for batterers to receive
counseling are indicative of a growing responsiveness on the part of the womens
rights advocates, legislators, and police administrators to the needs of domestic
violence victims. Unfortunately, woman battering is still not viewed as a crime
in every state, and police in certain jurisdictions are still likely to ignore
family violence calls.
- Roberts, A. R., PhD. (1998). Battered Women and Their Families. Springer Publishing Company: New York.
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