Mandatory Arrest and Prosecution Policies for Domestic Violence: A Critical
Literature Review and the Case for More Research to Test Victim Empowerment
Heger, Policy Analyst,
University of MissouriSt. Louis
from an article of the same title by:
Linda G. Mills, University of CaliforniaLos Angeles
Published: Criminal Justice & Behavior, 1998, 25, 3, Sept,
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.
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.
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.
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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,
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Experiment. Journal of Criminal Law & Criminology, 83, 170-200.
Ford, D.A., & Regoli, M.J. (1993). The criminal
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Zoe Hilton (Ed.), Legal responses to wife assault: Current trends
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Newmark, L., Harell, A., & Salem, P. (1995). Domestic
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Sherman, L.W., Schmidt, J.D., & Rogan, D.P. (1992).
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