Mandatory Arrest - For What?
How to Prosecute Domestic Violence as "Real" Crime
By Penelope D. Clute, Former Clinton County District Attorney
New York law dramatically changed when the legislature amended the Criminal Procedure Law to require the police to make arrests in domestic violence cases when there was probable cause to do so, regardless of the wishes of the victim. Where the evidence establishes probable cause to believe that a misdemeanor or felony was committed, the police are prohibited from even asking the victim about whether to arrest.
Since passage of this "mandatory arrest" law, the emphasis has been on police training, to change past practice of putting the arrest decision in the hands of the victim. The effectiveness of this law, and the efforts to stop domestic violence, can be greatly enhanced by thoughtful use of the Penal Law.
To simply say that we now have a "mandatory arrest" law begs that question of "arresting for what?" What is the appropriate charge to file? Police and prosecutors are used to struggling with the definition of "physical injury" required for assault, and concluding that the violent attack can only be charged as "Harassment," since the injuries do not meet the Penal Law definition.
Are there other answers? Yes. For example, what looks like Harassment (Penal Law 240.26, subd.1) can be charged as Attempted Assault (Penal Law 110.00 and 120.00). Where there is the intent to injure and conduct trying to do so, but fortunately the victim is not injured sufficiently to fit the Penal Law definition in section 10.00, then the crime is Attempted Assault 3rd. When charging the B Misdemeanor of Attempted Assaulted 3rd, the police have the power to make the arrest, and are not dependent upon the victim's willingness, as is the case for a Violation that is not committed in the presence of the police. If the defendant tried very hard to cause injury, or used a dangerous instrument or weapon, it may be the Felony of Attempted Assault 2nd.
If the defendant used an object to threaten the victim (Menacing - Penal Law 120.14, subd. 1), that object probably qualifies as a "dangerous instrument" under Penal Law 10.00. If so, the defendant can be charged with Criminal Possession of a Weapon 4th (Penal Law 265.01. subd. 2). If the defendant has a prior conviction for any crime, even DWI, then the weapons charge is elevated to the Class D Felony of Criminal Possession of a Weapon 3rd (Penal Law 265.02, subd. 1). Thus a misdemeanor Attempted Assault or Menacing, or perhaps even an Harassment, can be coupled with a felony weapons charge. If the defendant's prior crime is a felony, now he is a second felony offender facing mandatory state prison.
Another felony which may be present in what at first looks like an Harassment, Attempted Assault or Criminal Mischief situation is Burglary 2nd (Penal Law 140.25, subd. 2). This Class D Violent Felony can be charged when the defendant unlawfully entered the victim's home with the intent to threaten or assault her or to damage her property. Furthermore, the entry is unlawful if it is in violation of a "stay away" Order of Protection. If the defendant also causes physical injury or threatens the use of a dangerous instrument, while he is unlawfully in the dwelling, then it is Burglary 1st (Penal Law 140.30, subds. 2 or 3), a Class B violent Felony, Criminal Contempt 2nd, 1st or Aggravated Criminal Contempt (Penal Law sections 215.50, 215.51, and 215.52) may be chargeable, as well.
Since domestic violence is most often a "continuing offense," not simply the single instance which you are now charging, ask the victim what led up to this particular violence and whether anything like this happened before. The more you learn about the relationship between the victim and the defendant, the more crimes you are likely to find.
Menacing 2nd (Penal Law 120.14 subd. 2) is one of the few crimes defined as a "continuing offense" allowing a single charge to encompass numerous acts committed by the defendant over a period of time. Endangering the Welfare of a Child (Penal Law 260.10) is also a continuing offense. Although these crimes are only misdemeanors, charging them will allow the victim to testify about the nature of the relationship, including non-criminal bad acts, so the jury will better understand why she stayed, complied with his demands, etc. It also avoids the uncertainty of trying to admit evidence of uncharged crimes through the Molineux Rule.
A rarely used but very appropriate crime in many domestic violence cases is Coercion (Penal Law 135.60 and 135.65). Coercion should be charged when the defendant gets the victim to do what he wants, like staying with him, having sex with him or keeps her from doing what he doesn't want, like calling the police - by instilling in her a fear of physical injury or damage to property if she does not comply.
As you listen to victims talk about what has gone on, keep this crime in mind and you will realize that it very accurately reflects what happens in many domestic violence cases. Police and prosecutors are used to dealing with specific instances at a particular date and time. Yet, since the dynamics of domestic violence are those of exercising power over another, the particular incident may appear not to fit traditional criminal definitions - until you look at Coercion. As an added attraction, Coercion is unique in the New York Penal Law in that the felony definition (135.65, subd. 1) is identical to the misdemeanor (135.60 subd. 1 and 2) when fear of physical injury or property damage is instilled.
So many times we have been frustrated in seeing violent attacks that could not meet the "physical injury" standard to charge Assault. If we open our minds to other crimes that fit a defendant's behavior, we can find many effective means to do justice!