"Developments in the Law: Legal Responses to Domestic Violence," Harv. L. Rev., May 1993, p.1552-1556
[Note: The numbers with asterisks refer to the page numbers of the original text.]
A. Changing Attitudes and Behaviors
Judges, prosecutors, and police are all in positions either to help protect an abuse victim or to thwart her attempt to end the violence. Two obstacles have prevented officials from responding as effectively to the victim as they might. First, stereotyped views of the family and of women have historically led state actors to blame the victim rather than her abuser. Often police and judges have refused to intervene, [FN3] treated the situation lightly, [FN4] or acted as if the batterer and the victim were equally responsible, [FN5] thus sending signals of legitimization to the abuser or blame to the victim. Second, the criminal justice system was designed when domestic violence was considered off limits to state intervention. Therefore, its structure is ill-adapted to confronting this problem. Together, outdated attitudes and inadequate institutional structures have prevented the state from effectively dealing with the crime of domestic abuse.
[FN3] See, e.g., Thurman v. City of Torrington, 595 F. Supp. 1521, 1524- 25 (D. Conn. 1984).
[FN4] See GAIL A. GOOLKASIAN, NATIONAL INST. OF JUSTICE, CONFRONTING DOMESTIC VIOLENCE: A GUIDE FOR CRIMINAL JUSTICE AGENCIES 81 (1986); Note, Duties and Enforcement Mechanisms for the Rights of Battered Women, 16 SUFFOLK U. L. REV. 937, 943 (1982) (arguing that police jocularity with batterers tends to encourage the abuse).
[FN5] See Mary E. Asmus, Tineke Ritmeester & Ellen L. Pence, Prosecuting Domestic Abuse Cases in Duluth: Developing Effective Prosecution Strategies from Understanding the Dynamics of Abusive Relationships, 15 HAMLINE L. REV. 115, 153 (1991) (noting that the police sometimes arrest both the batterer and the victim who uses force in self-defense); cf. Fitzgerald v. Fitzgerald, 406 N.W.2d 52, 54 (Minn. Ct. App. 1987) (reversing a judge who had issued a mutual protection order though there was no evidence that the wife had abused the husband).
1.Police Intervention. - Because the police are generally the first contact victims and batterers have with the criminal justice system, many recent efforts to improve state responsiveness have been directed at police officers. Legislatures, advocates for battered women, and others who seek reform have used a combination of new legislation, departmental policies, and training programs to achieve the dual purpose of counteracting undesirable attitudes and helping officers respond effectively to the unique problems of domestic violence.
(a) Legislation. - Some states have reinforced the Equal Protection Clause's principle of formal equality by mandating that domestic assaults not be treated less seriously than other assaults. [FN6] Pro-arrest *1553 and mandatory arrest legislation [FN7] reinforce that policy by counteracting police resistance to making arrests in situations of family violence. [FN8] These statutes also recognize that domestic violence victims are especially vulnerable to continued violence if their abusers are not arrested. [FN9]
States also use incident reports to focus officers' attention on the appropriateness of their response. By requiring a report even if no arrest is made, [FN10] reporting statutes encourage the officer to consider carefully whether he should take the batterer into custody. Effective training and a requirement that police separately detail the grounds for each arrest [FN11] help the officer distinguish between mutual violence and self-defense, and thus discourage the "mutual arrest" of both the batterer and victim. [FN12] In addition, detailed reports make it possible to collect information and statistics about domestic abuse. This process, in turn, stimulates public awareness of the problem and facilitates scrutiny of the police response. [FN13] Recent statutes also recognize the important role police must play in assisting victims of domestic violence. [FN14] Missouri and New Jersey, for example, provide for "domestic crisis teams" within law enforcement agencies; these teams are specially equipped to deal with domestic violence and may include social workers or counselors trained *1554 in crisis intervention. [FN15] Other state laws explicitly require the police to remain on the scene until the victim is safe and to help her obtain medical treatment, shelter, or a restraining order. [FN16] A number of states further require officers to inform victims of their legal rights. Some statutes even specify the language of the police statements to ensure that the victim receives needed information about both available social services and the officer's duty to assist her. [FN17] As a further benefit, reforms such as these also send police a clear message that assisting battered women is indeed part of their official function.
[FN6] For example, Missouri law instructs that "[t]he law enforcement agency shall not assign lower priority to calls involving alleged incidents of abuse ... than is assigned in responding to offenses involving strangers." Mo. Ann. Stat. § 455.080 (Vernon Supp. 1992).
[FN7] See supra pp. 1535-40 (discussing various arrest policies). Rhode Island, for instance, has enacted legislation that requires arrest when there is probable cause for any of the following: (1) "felonious assault"; (2) assault that results in bodily injury whether observable or not; (3) physical action intended to cause reasonable fear of serious bodily injury (defining bodily injury as physical pain, illness, or an impairment of physical condition); or, (4) the violation of a court order. See R.I. GEN. LAWS § 12-29-3 (Supp. 1992).
[FN8] See LISA G. LERMAN, CENTER FOR WOMEN POLICY STUDIES, PROSECUTION OF SPOUSE ABUSE: INNOVATIONS IN CRIMINAL JUSTICE RESPONSE 25 (1981) (arguing that "police often impose a higher standard of probable cause in spouse abuse cases than in stranger cases"), quoted in GOOLKASIAN, supra note 4, at 36.
[FN9] See GOOLKASIAN, supra note 4, at 24; Waits, supra note 1, at 316 (suggesting that mandatory arrest requires police to treat domestic violence as a crime despite their own prejudices).
[FN10] See, e.g., Mont. Code Ann. § 46-6-601 (1991).
[FN11] See, e.g., Mass. Gen. Laws Ann. ch. 209A, § 6(7) (West Supp. 1992).
[FN12] See Asmus, Ritmeester & Pence, supra note 5, at 153 (reporting that the requirement of probable cause analysis for each arrest decreased mutual arrests by 50%). At least seven states direct the officer to determine who is the "primary physical aggressor" and to sanction that individual regardless of whether the victim might have "started" the argument or used force as well. See Iowa Code Ann. § 236.12(3) (West Supp. 1992); Mo. Ann. Stat. § 455.085 (Vernon Supp. 1992); Nev. Rev. Stat. § 171.137(2) (1991); N.H. Rev. Stat. Ann. § 173-B:9 (1990); N.J. Stat. Ann. § 2C:25-21c(2), :25-21c(3) (West Supp. 1992); S.D. Codified Laws Ann. § 23A-3-2.2 (Michie Supp. 1992); Wis. Stat. Ann. § 968.075(3)b (West Supp. 1992-1993).
[FN13] These statistics might also be useful in liability suits as evidence of how police have responded to domestic violence in comparison to stranger violence. See infra note 121.
[FN14] See GOOLKASIAN, supra note 4, at 29, 41-43 (pointing out that police are often the first officials to whom victims turn, and that "[b]attered women often need emergency medical treatment, emotional support, financial assistance, and protection from further violence").
[FN15] See Mo. Ann. Stat. § 455.080(3) (Vernon Supp. 1992); N.J. Stat. Ann. § 2C:25-20 (West Supp. 1992).
[FN16] See, e.g., Ill. Ann. Stat. ch. 40, para. 2313-4 (Smith-Hurd Supp. 1992-1993); see also supra pp. 1506-09 (discussing integrated delivery systems).
[FN17] See, e.g., Mass. Gen. Laws Ann. ch. 209A, § 6(4) (West Supp. 1992).
(b) Guidelines. - All of the benefits of the new legislation may be lost, however, if departmental superiors do not convey to their officers that new attitudes and behavior are now expected. Whether by ignorance or inertia, legislative changes may go unenforced until the police chief makes it clear that the new law is in fact new policy. [FN18] By incorporating the new law into departmental guidelines and training, a department instructs its officers to take the legislation seriously. Guidelines and training sessions also help police to understand how abstract statutory amendments are to be applied in practice. For instance, manuals can be specific about what charges are appropriate for what behavior and when arrests should be made. [FN19] Yet in turning a vague statute into concrete departmental policy, the department chief has considerable room not only to interpret innovatively, [FN20] but also to disregard the new legislative directive. [FN21] Thus, some states now require their police departments to develop guidelines for handling domestic violence cases and are very explicit as to their minimum content. [FN22] Furthermore, legislators anticipate that the public scrutiny *1555 to which guidelines are open will encourage compliance with the statutory policy.
[FN18] See Maria K. Pastoor, Police Training and the Effectiveness of Minnesota "Domestic Abuse" Laws, 2 LAW & INEQ. J. 557, 562-63 (1984).
[FN19] The guidelines of California's Commission on Peace Officer Standards and Training, for instance, begin their domestic violence section with a list of ten factors not to be considered in deciding whether to make an arrest. See STATE OF CALIFORNIA'S COMM'N ON PEACE OFFICER STANDARDS AND TRAINING, GUIDELINES AND CURRICULUM FOR LAW ENFORCEMENT RESPONSE TO DOMESTIC VIOLENCE at C-1 to C-2 (1985), reprinted in 2 SUE MARTIN & K. KAUFMANN, FAMILY VIOLENCE PROJECT, DOMESTIC VIOLENCE: A TRAINING CURRICULUM FOR LAW ENFORCEMENT at app. c (1991).
[FN20] On occasion, police department policies offer more protection than the statute. In Duluth, Minnesota, for example, the department mandates arrest in certain situations when state law leaves it to the officer's discretion. See Asmus, Ritmeester & Pence, supra note 5, at 151.
[FN21] See Pastoor, supra note 18, at 557, 562-63.
[FN22] See, e.g., Wis. Stat. Ann. § 968.075 (3) (West Supp. 1992-1993). Wisconsin's law mandates that guidelines state a preference for arrest whenever domestic abuse amounts to a crime, limit the use of "mutual arrest," and list factors an officer cannot consider in determining whether to arrest. See id. The statute further requires procedures for written reports and victim notification of the probable time of the batterer's release. See id. Finally, it states that departments may mandate arrest in more situations than those mentioned in the statute itself. See id.
(c) Training. - Laws and guidelines, however, can neither eliminate the need for officer discretion in determining how to characterize a particular situation nor legislate the tone of voice with which an officer carries out his duties. Thus, training programs designed to eliminate discriminatory attitudes and to develop new, more appropriate approaches are a crucial component of the attempt to make police more responsive. The aim is to help officers to see how their language and behavior, shaped by their attitudes toward domestic violence, affect the prospective behavior of the victim and batterer. [FN23] The training curriculum developed by the San Francisco Family Violence Prevention Fund, in coordination with police, is an excellent example of a recent effort to sensitize law enforcement personnel. [FN24] An entire chapter of the curriculum is dedicated to educating police about the dynamics of a battering relationship. Each subsequent chapter then refers back to that dynamic to illustrate how and why domestic violence demands a distinct approach. Hypothetical fact patterns help the officer work through the difficulties of a domestic violence call. [FN25] For example, because a battered woman is often reluctant to turn against her batterer, the curriculum teaches the officer to ask precise, direct questions when interviewing her about the battery. [FN26] Recognizing the financial and emotional ties common between abuser and victim, the officer learns to turn reluctance into cooperation by stressing the availability of probation and counseling. [FN27] By integrating domestic violence theory and the practical challenges of law enforcement, the curriculum shows how a police reaction tailored to the domestic violence dynamic is necessary for successful intervention.
[FN23] See, e.g., GOOLKASIAN, supra note 4, at 24 (illustrating how simple changes in language can alter significantly the tone and message communicated).
[FN24] See, e.g., 1 SUE MARTIN & MARY MCNEILL, FAMILY VIOLENCE PROJECT, DOMESTIC VIOLENCE: A TRAINING CURRICULUM FOR LAW ENFORCEMENT at III-8, VI-10 (1991).
[FN25] See, e.g., id.
[FN26] See, e.g., id. at V-1 to V-2, V-5 to V-6.
[FN27] See id. at VI-6.