In your writings you may find the need to utilize situations that exist in domestic cases. Here are a few of my thoughts about the laws as they exist today. In realistic situations the shades of gray are always evident.
Initially a major goal in mandatory arrest laws, was to take away some of the discretion that police officers had, upon arrival at a domestic violence scene. In some cases, the situation was unclear and the first officer on scene was required to make an educated guess as to the circumstances. Lets face reality; there are only two people that know the entire story: the victim and the offender. The question is: is it a responsible action to take? Or is mandatory arrest really a way to give the police less discretion or the government more power.
The very nature of warrantless arrest sounds unconstitutional. Although each state that exists under the Constitution has a different variation of discretion, all use warrantless arrests when dealing with domestic violence. What if the domestic violence call is based on information from a neighbor? The assumption is, evidence must exist of a violent encounter for the arrest to take place. This is and always will be, a gray area. What if one person lies? What if the house is a wreck, because the accuser trashed the place in a fit of rage and blames the other party? How can a police officer be expected to know the truth? It seems a large jump from an argument, to a view from behind the bars of a jail cell. This may seem like an extreme assumption, yet experiences have shown; many people spent the night in jail for an altercation that may have been instigated by the other party involved. The idea that these laws are successful and create less domestic violence is not supported. In fact, there is no concrete proof that this is true. There is a tendency to report less, saving the abuser the inconvenience of arrest. Many fear repercussions from their abuser and remain silent. There are also cases where the abuser is not the one taken to jail. In the case where the victim is emotional and has struck back, that individual may end up with the arrest on their record.
The research on this subject is contradictory. It seems that, if a researcher wants this to be a positive situation, then the results reflect that outcome. The same can be said for the opposite affect. I found very little research that supported either view exclusively. When arrests increase, the researchers assume it is because the problem is being solved. When arrests decrease the researchers assume it is because of deterrence. This does not take into account human error. For that reason above all others, discretion is rarely a preferable alternative to structured laws. On the other hand, all situations are not equal and extenuating circumstances, such as fearful victims refusing to report, should always be accounted for.
Initially, there was a frustration when mandatory arrest came about. Police enforcers didn’t know what to arrest for. As the statutes became clearer, it was possible for violent offenders to be arrested for crimes that were not nessacerally assault, but fit into the domestic violence category. This made it less frustrating for officers that could not arrest unless a violent act had occurred.
Many arguments could be sited for the effectiveness of these laws, just as many arguments site the opposite case. It is this writer’s view that, mandatory arrest laws violate the position that extenuating circumstances may exist.
Until tomorrow. Fortune favors the brave! Samantha Shu
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