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January 23, 2012

Mandatory Arrest and Prosecution Policies for Domestic Violence: A Critical Literature Review and the Case for More Research to Test Victim Empowerment Approaches

The criminal justice system has only recently begun to consider violence between adult intimate partners a public matter worthy of legal concern. Advocates lobbied successfully to change the way perpetrators and victims are treated within the system. Reviewed by
David M. Heger, Policy Analyst,
University of Missouri–St. Louis
from an article of the same title by:
Linda G. Mills, University of California–Los Angeles
Published: Criminal Justice & Behavior, 1998, 25, 3, Sept,
306-318

The criminal justice system has only recently begun to consider violence between adult intimate partners a public matter worthy of legal concern. Advocates lobbied successfully to change the way perpetrators and victims are treated within the system. As a result, new laws have proliferated, including pro-arrest and mandatory, or no-drop, prosecution policies. Mandatory arrest approaches direct police to detain a perpetrator when there is probable cause that a domestic assault has occurred, regardless of the victim's wishes. Mandatory prosecution requires government attorneys to bring criminal charges against batterers.
More than one-third of U.S. police departments reported adopting pro-arrest policies because of empirical data showing arrest to be a deterrent against future spousal violence. Recent data suggest that arrest may actually increase abuse for some women. The number of jurisdictions implementing mandatory prosecution has increased, even though data on the benefits and drawbacks of the policy are scarce.
Mandatory Arrest
Early studies showed mandatory arrest to be the most effective policy in deterring batterers from future violence. Sherman and Berk (1984a, 1984b) were the first to study mandatory arrest, with numerous studies to follow. They examined 314 cases of misdemeanor assault over six months and found mandatory arrest to be a significantly more effective deterrent than either physical separation or officer mediation. Each of the several studies in the United States that replicated Sherman and Berk produced varying results on the efficacy of mandatory arrest.
An investigation of the combined data from all the mandatory arrest studies found that the policy's success is tied to whether an offender is "good risk" or "bad risk." (Berk et al., 1992) Good risk batterers are defined as having ties to the community through marriage, employment, etc. (Berk 1993) They are likely to suffer embarrassment and stigmatization as a result of being arrested and are therefore less inclined to reoffend. Bad risk offenders do not possess the same community attachments, are less likely to be embarrassed by detainment, and are prone to future violence.
Overall, mandatory arrest studies indicate a need to individualize intervention strategies based on local demographics. Based on their review of mandatory arrest studies, Sherman, Schmidt, and Rogan (1992) suggest jurisdictions replace mandatory arrest policies with mandatory action or police action chosen from a list of possibilities. Such options could include transportation to a shelter, transportation to a detoxification center, victim-driven arrest, and providing counsel for victim protection.
Mandatory Prosecution
Few studies have examined mandatory prosecution policies. In fact, Ford and Regoli (1993) conducted the only randomized study of no-drop prosecution. They found that the type of prosecution strategy used (drop-permitted versus no-drop) has a significant effect on the future behavior of the batterer. Victims who chose to file charges against the perpetrator under a drop-permitted policy were less likely to experience future violence than were victims whose batterers were prosecuted without their input. However, the opposite was true for victims who chose to drop charges against their batterers; they were more likely to experience abuse again than those dealt with under mandatory prosecution.
Ford and Regoli hypothesize that the preventative impact in drop-permitted cases comes from a victim's personal empowerment. They suggest this power derives from women using prosecution as a bargaining chip with their partners, allying with law enforcement, and being provided with a voice in determining sanctions.
The Effect of Empowerment on Recidivism
Sherman and Berk (1984a) briefly addressed victim empowerment in their examination of mandatory arrest (although the replication studies failed to do so). They found a relationship between police concern and batterer recidivism. When batterers were arrested, victims experienced repeat abuse in 26 percent of the cases. When batterers were arrested and the victim perceived the police as concerned and willing to listen, the repeat abuse rate dropped to nine percent. Sherman and Berk hypothesized that the rate of recidivism dropped with police concern because victims felt empowered by the interaction.
The Case for Future Research on Victim Empowerment
Although mandatory arrest and prosecution studies have included hypotheses concerning victim empowerment, these studies have focused mostly on batterer characteristics and have failed to actually test victim empowerment. One notable exception in the field is Newmark, Harrell, and Salem's (1995) study of the effects of mediation on domestic violence victims' empowerment, both personally when dealing with their batterer and within the court system.
Future research should examine whether prosecution can serve to empower a victim of abuse and under what circumstances. Such a study should measure the effect of prosecution on victim empowerment and the effect of empowerment on recidivism. An empowerment analysis should extend Newmark et al.'s personal and court system paradigm. Because fear of prosecution may be an important variable mediating between empowerment and recidivism, batterers should be questioned about whether they find prosecution threatening. Previous studies suggest that recidivism should be measured over at least a 12-month period, and when possible, over an 18- to 24-month period.
In the Meantime: Policy and Practice Implications
Defenders of mandatory arrest and prosecution policies contend that battered women are too helpless and fearful to make appropriate decisions about the arrest or prosecution of their attackers. While this may be true for some women, preliminary evidence shows that the option to decide sometimes provides the perfect avenue for expressing unrealized strength and power. Without additional empirical information, it is unclear exactly how the criminal justice system should respond to domestic violence. Cognizant of these limitations, jurisdictions should develop programs that tailor services to battered women. Funds should be provided to train officers to identify fearful victims from those who can be empowered through the criminal justice process. A tolerance for the diversity of victims' needs and responses to abuse may prove to be the panacea to reducing violence against women.
References
Berk, R.A. (1993). What the scientific evidence shows: On the average, we can do no better than arrest. In R.J. Gelles & D.R. Loeske (Eds.), Current controversies on family violence (pp. 323-336). Newbury Park, CA: Sage.
Berk, R.A., Campbell, A., Klap, R., & Western, B. (1992). A Bayesian analysis of the Colorado Springs Spouse Abuse Experiment. Journal of Criminal Law & Criminology, 83, 170-200.
Ford, D.A., & Regoli, M.J. (1993). The criminal prosecution of wife assaulters: Process, problems, and effects. In N. Zoe Hilton (Ed.), Legal responses to wife assault: Current trends and evaluation (pp. 127-164). Newbury Park, CA: Sage.
Newmark, L., Harell, A., & Salem, P. (1995). Domestic violence and empowerment in custody and visitation cases. Family and Conciliation Courts Review, 33, 30-62.
Sherman, L.W., & Berk, R.A. (1984a). The Minneapolis Domestic Violence Experiment. Police Foundation Reports, 1, 1-8.
Sherman, L.W., & Berk, R.A. (1984b). The specific deterrent effects of arrest for domestic assault. American Sociological Review, 49, 261.
Sherman, L.W., Schmidt, J.D., & Rogan, D.P. (1992). Policing domestic violence: Experiments and dilemmas. New York: Free Press.
Original Article

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