The problem of domestic violence is a serious challenge to the contemporary justice system because often domestic violence remains unnoticed for the public, but it can take place in the regular life of families. In such a situation, the position of family members victimized by an offender becomes unbearable. Therefore, the effective work of law enforcement agencies is crucial for the prevention of domestic violence. At the same time, the effective legal action aiming at the prevention of domestic violence and punishment of offenders raises a number of problems. In this respect, arrest policies for domestic violence are particularly important and, at the same time, they are highly controversial because along with the prevention of domestic violence through the arrest of an offender, law enforcement agencies put under a threat basic liberties and procedural norms which persisted for years. In fact, the current situation is characterized by strengthening of punitive trends. This means that arrest becomes a preferable measure to prevent or stop domestic violence, while, in actuality, the wide application of this preventive measure can be potentially accompanied by the violation of liberties and human rights.
On analyzing the current situation related to mandatory arrest for domestic violence, it is important to underline that domestic violence is a widely spread problem in the USA. The number of offenses steadily grows in spite of all the efforts of law enforcement agencies to stop domestic violence and protect victims from any kind of abuse. In this respect, it should be said that traditionally domestic violence is perceive as a physical abuse of family members, but, in actuality, the abuse can be of psychological nature, when an offender exposes his/her victims to a substantial psychological pressure. In such a context, mandatory arrest for family violence is traditionally viewed as a preventive measure which protects victims from offenders.
It proves beyond a doubt that the protection of victims from domestic violence is essential because domestic violence endangers the safety of victims and weakens families. At the same time, the existing views on domestic violence do not actually meet the real situation because traditionally, domestic violence is associated with the abuse of women and children by men. However, in actuality, the situation is quite different. Specialists (Stets and Straus, 133) reveal the fact that men and women are equally likely to initiate and engage in partner aggression. Furthermore, in about half of all cases aggression is mutual, meaning that there is no clear-cut initiator of the altercation. Finally, specialists (Luo, 41) point out that although women are more likely to be harmed, makes represent 38 % of those who suffer an injury from partner aggression. In such a way, it is obvious that the view on men as initiators and main aggressors is quite erroneous. However, it is very important to underline that the majority of mandatory arrests for domestic violence are related to arrests of men, but not women.
Naturally, it does not mean that mandatory arrests for domestic violence are absolutely unjust, but the statistical information given above and the basic trends clearly indicate to the fact that mandatory arrest for domestic violence is a very complicated problem. Moreover, the most difficult part of this problem is the identification of the initiator of the aggression and the person who should be arrested. In other words, police officers, who are actually responsible for mandatory arrests, should be able to clearly define what actions should be undertake in relation to the person who is supposed to be an offender.
In such a situation, advocates have pushed for the strengthening of arrest laws and policies as a deterrent to domestic violence, but such an approach to domestic violence seems to be illogical, taking into consideration, the procedural complexity of mandatory arrest for domestic violence. In this respect, it is possible to refer to the Fourth and Fifteenth amendments, according to which the government is commanded to not deprive any person of liberty “without due process of law” (Stets and Straus, 224). In actuality, this means that a person cannot be arrested if legal norms are violated. At this point, it should be said that mandatory arrest for domestic laws can lead to the violation of the Fourth and Fifteenth amendments. Specialists argue that arresting a person for allegedly committing domestic violence has a profound impact on personal liberty (Stets and Straus, 240). In such a situation, mandatory arrest for domestic violence can have serious legal and social effects, especially now when men who are arrested for domestic violence are detained an average of nine days.
The trend to the strengthening of arrest laws can enhance negative effects of legal and social effects of mandatory arrests for domestic violence. In this respect, it should be said that police officers were not allowed to make arrests for a misdemeanor unless the officer actually witnessed the event or had an arrest warrant from a judge. It is worth mentioning the fact that a misdemeanor is the most widely spread instance of domestic violence (Luo, 44). Therefore, the strengthening of arrest laws can change this traditional procedure and actions of police officers.
On the other hand, the strengthening of punitive trends is, to a significant extent, defined by the increasing number of requests for police assistance. In such a situation, the risk that the mandatory arrest tradition will give in to pro-arrest laws increases dramatically. In this respect, it is important to underline that mandatory arrest requires a police officer to detain a person based on a probable cause determination that an offense occurred and that the accused person committed the offense. In stark contrast, pro-arrest laws consider arrest preferred, but not required action. An officer who fails to make the arrest must then file a written incident report justifying why no arrest was made.
Furthermore, mandatory arrest laws have certain weaknesses since they do not distinguish between one time and chronic offenses, or between minor and severe violence, which may be important for a police officer to decide whether an offender is worth arresting or not. For instance, in one Wisconsin case, a woman who slapped an 18 year-old son was detained because he “sassed her and made an obscene gesture” (Luo, 47). Court soon found themselves flooded with cases involving shoving, hair-pulling, and even yelling (Luo, 48). Obviously, such a legal action against the domestic violence is too exaggerated. At this point, it is possible to refer to the position of one former prosecutor in Hamilton County, Ohio, who argues that “in the past, the officers would intervene or separate the parties to let them cool off. Now these cases end up in criminal courts. It’s exacerbating tensions between the parties, and it’s turning law-abiding citizens into criminals” (Luo, 51).
Hence, it is obvious that police officers have to be able to observe all legal procedures and clearly define whether arrest is necessary or not. In this respect, specialists developed recommendations to police officers concerning the legal action concerning cases of domestic violence, according to which there are the following criteria which allow classifying an individual as an aggressor: likelihood to future injury; whether one of the persons acted in self-defense; prior complaints of domestic violence; relative severity of injuries to each person; physical strengths of the parties (Luo, 52).
Thus, it is possible to conclude that mandatory arrest for domestic violence is an important measure that aims at the prevention of domestic violence. However, the practical application of this measure evokes serious procedural problems. Police officers need clear recommendations on their actions in case of domestic violence.