Domestic Violence – has the pendulum swung too far?

Domestic Violence is a wide-spread problem that endangers family members as well as the law enforcement officers responding to calls for help. Men initiate aggression about as often as do women and, in about half of the reported cases, there is no clear-cut initiator. Women are more likely to be harmed, however.

Prior to the mid 1980′s, law enforcement could only make an arrest in a misdemeanor case if it occurred in their presence.If they responded to a domestic violence case, their approach would have been to mediate the dispute or separate the parties for a cooling-off period. The police were able to exercise judgment and discretion in how to handle the incident.

If the victim wished to prosecute, the police would file a report for follow-up investigation. The Victim would have to provide a statement and express their desire to prosecute. The police would file the case, obtain a warrant and arrest the initiator. Frequently, time passed and the victim no longer wanted to do anything…until the next time it happened. Police became frustrated in having to repeatedly deal with people who couldn’t get along and wouldn’t do anything to change their circumstances.

During the mid 1980′s, advocacy groups began to apply pressure for arrests in domestic violence cases stating that the police were being too lenient and that arrests should be made. The Federal Violence Against Women Act was passed in 1994 which led to states initiating legislation requiring an arrest in domestic violence cases where probable cause existed.

We have gone from requiring warrants to make misdemeanor arrests, to permitting warrantless misdemeanor arrests  and finally to requiring warrantless misdemeanor arrests in domestic violence cases.

Attorney Philip Howard, in his book The Death of Common Sense: How Laws are Suffocating America, theorizes that we have moved away from the common law approach of applying general legal principles to specific cases and using common sense solutions toward a rationalistic legal philosophy that seeks to write laws of such perfect clarity and detail that no exercise of individual judgment is required in their enforcement. However, the result is that we have laws that go too far and do too little. The excessive rigidity of law makes it unable to adapt to individual cases and it becomes ineffective or counter-productive.

The framers of the U.S. Constitution understood the need for adaptation to circumstances that they couldn’t anticipate at the time the wrote it. It was looked at as a model document for its elasticity and adaptability over time. The Declaration of Independence was written using about 1300 words. The U.S. Constitution about 4400. The Colorado Domestic Violence Statute uses about 6600. Our country was founded using fewer words than are used by one state to enforce one law.

We now have a law that requires the police to make an arrest if probable cause exists. They are not permitted to use their individual judgment regarding the circumstances and the appropriateness of the arrest beyond the determination of probable cause. The decision to arrest is made by the state legislature and not by the police on the scene. Who is in a better position to assess the circumstances? The law is such that the police can get into trouble if they don’t make an arrest. The decision is easy; ” If I’m going to make a mistake, I will err on the side of making an arrest and staying out of trouble.”

Along with the arrest comes a mandatory protection order and a lengthy criminal process. The protection order will mean that the parties will have to separate and have no contact with each other until such time as the system says they can begin to relate to each other again. Thy may not see each other, talk in person or on the phone, no text messages, letters or email…nothing until the system says it’s ok.

This process can be very disruptive and counter-productive. Court calendars are very full and an inappropriate level of no contact may remain in effect due to court scheduling.

Recently, a man contacted me regarding a pending domestic violence charge that he was facing. He expected to be arrested and wanted to arrange to turn himself in and post bond. He explained the circumstances which hardly seemed to justify a criminal charge. He did turn himself in and was released on a PR bond. There was also a protection order in place prohibiting contact with his spouse.

I’ve learned that this man has committed suicide. No doubt he had some issues due to the loss of his job and the need to live apart from his spouse. He had few friends and was prohibited from contacting the most significant person in his life. In this case, I believe that the law was counter-productive and contributed to his depression.

I believe that the pendulum need to swing back in the direction of permitting arrest rather than requiring arrest. In addition, the police should be trained to assess the behaviors of the individuals in their home environments. This will allow the police on the scene to utilize their judgment as they view the circumstances of specific cases and act accordingly. Let’s resurrect common sense.