The Family Protection and Domestic Violence Intervention Act of 1995: Examining the Effects of Mandatory Arrest in New York City

Transcription

1 The Family Protection and Domestic Violence Intervention Act of 1995: Examining the Effects of Mandatory Arrest in New York City 2001 A REPORT BY THE FAMILY VIOLENCE PROJECT OF THE URBAN JUSTICE CENTER AUTHORS: Mary Haviland, Esq. Victoria Frye, MPH Valli Rajah, PhD Juhu Thukral, Esq. Mary Trinity, MA Funding for this report was provided by the Center on Crime, Communities and Culture of The Open Society Institute

2 MAY, 2001 AUTHORS CONTRIBUTIONS Mary Haviland (1) is the Co-Director of the Family Violence Project at the Urban Justice Center. She has been working in the field of domestic violence for twenty years and is an expert in the area of mandatory arrest. She is responsible for the genesis of this research; she solely conceptualized and conducted the legal analysis and wrote the following sections of this report: History of Mandatory Arrest: New York State, New York City Evaluations, Legal Analysis Research Design, Legal Analysis Results, and the Recommendations sections of this paper. She co-wrote the Conclusions section with Frye. Victoria Frye (2) was the Director of the Injury Prevention Research Program of the New York City Department of Health at the time that this work was conducted, and is currently a Senior Program Associate with the Center for Health and Gender Equity, Takoma Park, MD. She is responsible for the research design proposed to the Open Society Institute. She conceptualized and conducted the quantitative analysis and, along with Rajah, conceptualized the qualitative design and research instrument. She analyzed the second wave of qualitative interviews and wrote the following sections of the paper: Quantitative Analysis Research Design and Quantitative Analysis Results. She co-wrote the Introduction, Qualitative Analysis Research Design, and Qualitative Analysis Results sections of the paper with Rajah and the Conclusions section with Haviland. Valli Rajah (1) was a Research Associate at the Urban Justice Center at the time that this work was conducted. She is an academic researcher whose scholarly interests focus on the relationships between drug use, intimacy and violence. She is an expert in qualitative approaches to the study of stigmatizing conditions. She was responsible for the analysis of the first wave of qualitative interviews and designed the interview schedule with Frye. She co-wrote the Introduction, Qualitative Analysis Research Design and Qualitative Analysis Results sections of the paper with Frye. Juhu Thukral (1) is a Staff Attorney with the Urban Justice Center s Family Violence Project and has focused her advocacy work on the legal rights of low-income and immigrant women. She co-conducted the legal analysis and data collection with Haviland and Frye and wrote the New York State Evaluations section. Mary Trinity (1) is a long-time victim advocate who formerly directed the Rhode Island Coalition Against Domestic Violence. Upon her relocation to New York City, she became Director of the Coalition of Battered Women s Advocates and served in that position during 1996 and She has worked as a consultant on this project, researched data from other jurisdictions and wrote the National Evaluations section of the paper. All authors participated in the conceptualization of the study, the interpretation of the data and the formulation of the conclusions and recommendations Urban Justice Center. Permission is granted to reproduce this material for noncommercial educational use, provided that any such use credits the authors, M. Haviland, V. Frye, V. Rajah, J. Thukral and M. Trinity and the sponsoring organization, Urban Justice Center. 1 The Urban Justice Center 2 New York City Department of Health 1

3 ACKNOWLEDGEMENTS We would like to thank the following people who assisted with this report: Jo Kim, MS, of Columbia University, for her extremely hard work arranging and conducting the in-depth interviews with Helpline callers; Susan Wilt, DrPH, for her very generous support of this project and work on an earlier conceptualization of this study; Vanessa Hosein, BA, for her assistance in the conduct and thematic data analysis of the focus groups; Katya Frischer, Esq., former staff attorney at the Family Violence Project (FVP), for her work on the conceptualization of the project; ; Amy Vinchesi for her excellent editorial work; Sunmin Park, a current FVP intern, for her assistance with the legal research; and Philip Yanos, PhD, for his review of the final report. Finally, we each thank our family members, who supported us in the exhausting execution of this report. We thank the criminal justice system representatives and domestic violence advocates who generously contributed their opinions, thoughts and voices to the focus groups conducted. Your dedication to this issue and to the safety and well-being of women is very much appreciated. Finally, we thank the study participants who shared their experiences, thoughts, opinions, feelings and insights with us. They bravely related their experience of violence and the sometimes traumatic experience that followed with the criminal justice system. They reminded us of why it is so important to critically examine this law and be unafraid of the great challenge that this entails. Through their experiences we were inspired, and we thank them for their help. This research project was supported by the Center for Communities, Crime and Culture of the Open Society Institute. We are extremely grateful for their two-year support of this project. However, the points of view expressed here are those of the authors and do not necessarily represent the opinions of those associated with the Center for Communities, Crime and Culture. For copies of this report, please call the Urban Justice Center at (646) and leave your name, address and telephone number. A copy of the report may also be obtained by logging on to before August 1, 2001 and to after August 1,

4 TABLE OF CONTENTS Authors Contributions. P 1 Acknowledgements.. P 2 Executive Summary. P 4 Introduction P 7 History of Mandatory Arrest... P 8 New York State National Evaluations P 9 New York State Evaluations.. P 11 New York City Evaluations P 14 Research Methods... P 16 Legal Analysis Research Design Quantitative Analysis Research Design Qualitative Analysis Research Design Results..... P 23 Legal Analysis Results Quantitative Analysis Results Qualitative Results In-depth Interviews Focus Groups Conclusions.. P 66 Recommendations.. P 72 3

5 EXECUTIVE SUMMARY In jurisdictions across America, the mandated arrest of individuals perpetrating domestic violence crimes ( mandatory arrest or pro-arrest policies) has become a key governmental policy solution to the issue of domestic violence (Goldberg 1999). Since the late 1970s, when advocates for domestic violence survivors began to lobby for changes in the law, nearly every state has legislated change in the police response to domestic violence incidents (Hilton 1993). The purposes of these new policies were to increase the number of arrests stemming from domestic violence incidents and to standardize the police response to such incidents. In 1995, the New York State (NYS) Legislature passed the Family Protection and Domestic Violence Intervention Act, which, among other things, contained provisions enacting a mandatory arrest statute in domestic violence crimes. Specifically, the New York Criminal Procedure Law (N.Y. Crim. Proc. Law) was amended to mandate arrest in certain situations when a crime is committed against a member of the same family or household. Mandatory arrest applies to: A felony crime; A violation of the stay-away provision of an order of protection that was properly served or that the defendant has knowledge of because he was present in court when the order was issued; A family offense as defined by N. Y. Crim. Proc. Law in violation of an order of protection of which the defendant has notice; A misdemeanor family offense, unless the victim requests that no arrest be made. The responding officer is prohibited from inquiring whether the victim seeks the arrest of the perpetrator. This study used a multi-method approach to assess the negative effects of the implementation of the policy on women who called the Urban Justice Center s Criminal Justice Helpline 1. By analyzing the Helpline information system database, conducting qualitative, in-depth interviews with callers who experienced problems around the law and holding focus groups with both advocates and criminal justice system professionals, we evaluated the implementation and impact of the policy in New York City from the perspective of women who experienced it. Key Findings: Problems Associated with Mandatory Arrest Policy and Implementation Helpline Callers Analysis of the Helpline database revealed that the majority of police related calls were for more information on police procedures and the new law. 4

6 The failure of police to make an arrest when mandatory arrest requires that such an arrest be made, termed No Arrest, made up nearly a quarter of all calls to the Helpline and thus continues to be a problem in New York City. Victim Arrest was found to be a significant problem under mandatory arrest in New York City. Victim arrest was found to fall into two patterns: Dual Arrest, where the perpetrator and victim are arrested as a result of conduct emanating from the same event, and Retaliatory Arrest, where victims are arrested as a result of an exaggerated or false complaint filed by an abuser, usually in retaliation for measures taken by the victim to protect herself or her children. A legal analysis of Retaliatory and Dual Arrests showed that the Primary Physical Aggressor analysis required by the N.Y. Criminal Procedure Law is a potentially powerful tool for evaluating domestic violence complaints. In Dual Arrests, proper Primary Physical Aggressor evaluations would have prevented almost 60% of arrests. An analysis of our Retaliatory Arrest cases revealed that had a Primary Physical Aggressor analysis been conducted, 57% of the arrests of victims of domestic violence in these cases would have been prevented. However, as the mandatory arrest law ages and more victims of domestic violence are either arrested or the subject of orders of protection, Primary Physical Aggressor analysis will become less effective in preventing Retaliatory Arrests. Both the quantitative and the qualitative data supported the possibility that women who experienced Retaliatory Arrest were partnered with potentially dangerous and manipulative batterers who are learning how to use the law to their own advantage. Further research is needed into this group of arrests. The negative effects of Victim Arrest were wide-ranging and lasting; many women reported that their physical and mental health and well-being, financial status, educational goals, personal relationships and their family s physical and mental health and well-being were adversely affected by the arrest. The women interviewed about their experience with the police reported that they often have goals and agendas that differ from those of the police; NYPD must make an effort to identify and understand these goals and agendas and react accordingly. Women who experienced an adverse arrest outcome reported that they are not being offered enough information during police responses, and the police are often ignoring verbal and non-verbal cues that 1 In 1995, the Family Violence Project of the Urban Justice Center established the only Helpline in New York City specifically created to mitigate some of the negative repercussions of mandatory arrest, such as false and threatened arrest of victims of domestic violence, and forcing victims unwillingly into criminal prosecution. 5

7 indicate that she might need more information; in addition, the police may be acting on information that women do not perceive to be relevant to the interaction or are misleading. Women reported that communication was of critical importance both during and after the immediate police response; communication technologies (such as offering cellular phone numbers) and communication techniques (such as actively listening) that fostered communication were appreciated and positively evaluated. Advocacy and Criminal Justice System Professionals Advocates reported a strong need for systematic collection of data on domestic violence arrests, in general, and on victim arrest, specifically, in order to be able to evaluate on a regular basis the impact of the mandatory arrest law; further research into five other jurisdictions indicated that such data is helpful to policy and practice. We found that data is crucial to understanding how this law is being applied and experienced by victims of domestic violence. Further, this data is required in order to understand better whether the law is being applied uniformly and without regard to the sex, age, socio-economic status, and race-ethnicity of the affected parties. Focus group participants agreed that the law interacted with other existing bodies of law in ways that further reduced women's ability to protect themselves from domestic violence. For example, the fear of a husband, upon whom she is dependent, losing his immigration status in combination with the experience of mandatory arrest resulted in overwhelming legal battles for many women, advocates reported. Conclusions The research presented here reveals that some victims of domestic violence are experiencing significant problems as well as some benefits related to the implementation of New York State s mandatory arrest policy in New York City. These problems include: non-arrest when the law and policies require such an arrest; the arrest of women who are actively experiencing domestic violence; and the reluctance of some victims of domestic violence to follow through with prosecution subsequent to an arrest. The research also finds that there are several potential mechanisms that may reduce the adverse effects of the law. However, we need to determine whether this policy should remain in place, and, because statistics on victim arrest and/or cross-complaints are not kept or made public, we must use what information is available to guide policy development, such as the recommendations of the women in our study who have experienced firsthand the realities of mandatory arrest. While we believe that the policy should be re-enacted, we must continue to critically evaluate it and its effects and study the nature and scope of the problem of victim arrest in New York City. Finally, we have made several specific policy and practice recommendations that may 6

8 guide the legislature as it considers whether to repeal the sunset provision and continue the mandatory arrest provisions. INTRODUCTION In jurisdictions across America, the mandated arrest of individuals involved in domestic violence crimes ( mandatory arrest or pro-arrest policies) has become a key governmental policy solution to the issue of domestic violence (Goldberg 1999). Since the late 1970s, when advocates for victims of domestic violence 2 began to lobby for changes in the law, nearly every state has legislated change in the police response to domestic violence incidents (Hilton 1993). The purposes of these new policies were to increase the number of arrests stemming from domestic violence incidents and to standardize the police response to such incidents. There is conflicting information on the impact of mandatory arrest policies in terms of re-offending rates (Garner et al. 1995) and the short- and long-term effects of experiencing the mandatory arrest policy on the lives of complaining witnesses are poorly understood. Further, there is accumulating evidence that there are unintended effects of the policy and its implementation. One such unintended effect is that both parties are being arrested in increasing numbers (Haviland 1999; Martin 1997; Jones and Belknap 1999). Another effect noted by service providers in the field is that women who experience domestic violence are being arrested on false or exaggerated complaints filed by a partner with a history of committing domestic violence crimes (Haviland 1999). Additionally, most evaluative work has not adequately studied the impact of the policy from the perspective of women who experience domestic violence. While assessments that identify the primary physical aggressor in domestic violence arrest situations have addressed the acontextual nature of the police response to domestic violence, by integrating the historical relationship context into the legal response, it is still important to understand how women actually experience the application of the law and its amendments. In addition, there is concern among local domestic violence advocates and others that the adverse effects of the policy are differentially distributed and differently experienced by poor, inner-city communities of color (Haviland 1999; Forell 1991; Schechter 1982). Some research suggests that the manner in which police respond to domestic violence in low-income neighborhoods reflects the notion that these individuals have fewer rights to privacy and to civil courtesy than middle-class suburban residents (Bittner 1990; Ferraro 1993). Given that minorities call the police more often for family violence incidents than others (Rennison and Welchans 2000) and that these calls more often result in an arrest (Hutchinson et al. 1994), questions regarding non-white or urban women s experience of police treatment around domestic violence 2 In this paper, we use the term women who have experienced domestic violence interchangeably with victim of domestic violence. Statistically, women are the primary victims of intimate partner violence, though we recognize that in a minority of cases males are also victims. Intimate partner violence which occurs among same-sex couples also adversely affects men. 7

9 calls are particularly salient. In New York City (NYC), the tension that exists between the police and communities of color (Flynn; NYT December 1, 1999) makes it especially important to understand how women in this locale experience mandatory arrest, a law that limits women s ability to control the criminal justice system s response to the domestic violence that they experience. In 1995, the Family Violence Project (FVP) of the Urban Justice Center (UJC) established the only Helpline in NYC, which was specifically created to mitigate some of the negative repercussions of mandatory arrest for victims of domestic violence. To shed light on the impact of mandatory arrest on the lives of women in NYC, the FVP established an advocacy-research partnership with the New York City Department of Health (NYCDOH) and secured funding from the Open Society Institute. The purpose of this research partnership was to evaluate the impact of the law in NYC using data from the Helpline and to conduct an evaluation of the effects of mandatory arrest on women who experience domestic violence, from the perspective of the women affected and those who assist victims of domestic violence. This paper reports the results of the policy evaluation and proposes a series of policy and practice recommendations based on the interpretation of the data collected. HISTORY OF MANDATORY ARREST New York State In 1995, the New York Legislature (NYS) passed the Family Protection and Domestic Violence Intervention Act, which, among other things, contained provisions enacting a mandatory arrest statute in domestic violence crimes. Specifically, the N.Y. Criminal Procedure Law was amended to mandate arrest in certain situations when a crime is committed against a member of the same family or household. Mandatory arrest applies to: A felony crime; A violation of the stay-away provision of an order of protection that was properly served or of which the defendant has knowledge because he was present in court when the order was issued; A family offense as defined by N.Y. Criminal Procedure Law in violation of an order of protection of which the defendant has notice; A misdemeanor family offense, unless the victim requests that no arrest be made. The responding officer is prohibited from inquiring whether the victim seeks the arrest of the perpetrator. Prior to passage of this statewide legislation, the New York City Police Department (NYPD) had a strong pro-arrest domestic violence policy which required arrest in situations of felony family offenses and of violations of orders of protection. In addition, the NYPD pioneered a broader definition of member of the same family or household by including people who co-habit or previously co-habited in a family- 8

10 typerelationship. This broad definition includes unmarried couples who do not have children in common and same-sex couples. Recognizing that the implementation of mandatory arrest was causing an increase in situations where both parties were being arrested, termed Dual Arrests, the mandatory arrest statute was amended to add a a Primary Physical Aggressor (PPA) provision (N. Y. Crim. Proc. Law (4)(c) (McKinney Supp. 2001). New York State lawmakers created the PPA provision based on the assumption that any increase in the number of Dual Arrests was not reflective of increased rates of female to male violence, but of procedural problems in implementing the new law. Thus, in 1997, the N.Y. Criminal Procedure Law (c) was expanded to provide that when there is reasonable cause to believe that more than one family or household member has committed a misdemeanor crime, the officer is not required to arrest both parties. Police officers are directed to identify the PPA by evaluating the following four factors: The comparative extent of any injuries inflicted by and between the parties; Whether either party is threatening or has threatened future harm against another household member; Whether either party has a prior history of domestic violence that can be reasonably ascertained; Whether either party acted defensively to protect himself or herself from injury. National Evaluations Nationally, the most studied effect of mandatory arrest policy has been its potential deterrent effect. This literature is comprised mainly of quantitative analyses of experimental studies that use recidivism (rearrest) rates as the major outcome of interest; the Spouse Assault Replication Projects (SARP) exemplify these studies (Berk et al. 1991; Dunford et al. 1989; Hirshel et al. 1991; Pate et al. 1991). The initial reports based on the original Sherman and Berk (1984) study concluded that perpetrator arrest resulted in a 50% reduction in repeat offending. However, subsequent reports of the various replications were mixed as to the deterrent effects of the policy (Berk et al. 1991; Dunford et al. 1989; Hirshel et al. 1991; Pate et al. 1991). Other legal analysts and social scientists have criticized these studies for missing the voice and perspective of the female victims (Bowman 1992) and the context of the relationships under study (Lerman 1992) and their lack of inclusion of alternative effects of mandatory arrest policy. For example, other effects of the policy, perhaps unintended, that have been reported in the literature (Martin 1997) have not been as wellstudied. As expected, in many jurisdictions, pro-arrest and mandatory arrest laws have been accompanied by a significant jump in arrest rates in domestic violence crimes. Studies in selected jurisdictions, conducted before pro-arrest policies went into effect, found arrest rates for domestic violence crimes to be between 4 and 12 percent. With the creation of pro-arrest policies, such arrest rates rose to between 15 and 30 percent (Jones and Belknap 1999). Our research into other jurisdictions confirmed these findings. We 9

11 looked at several jurisdictions to understand more broadly the effects of mandatory arrest and examined model jurisdictions that had created mechanisms for mitigating some of the negative effects of mandatory arrest laws. Domestic violence data and arrest rates were gathered from several states, including California, Texas, Rhode Island, Connecticut and Georgia, as well as several counties with coordinated criminal justice approaches to domestic violence. These jurisdictions computed arrest rates by creating a ratio of the number of arrests over the number of domestic violence reports. Arrest rates range from 79% in Lincoln and Lancaster Counties, Nebraska (Family Violence Council, 2000) to 28% in California (personal communication, California Department of Justice, Criminal Justice Statistics Center Special Request Section, January 2, 2001). Boulder County had an arrest rate of 73%% in 2000 (Boulder County Domestic Abuse Prevention Project: Summary 2000, 2001) and Rhode Island made arrests in 74% of the reports in 2000 (personal communication, DuBois, J., January 31, 2001). However, there have also been reports and concerns that as overall arrest rates for domestic violence crimes have risen, increasing numbers of women were being arrested as well. Nationally, a female arrest rate for domestic violence crimes is difficult to ascertain because arrest data on domestic violence crimes are not collected or reported uniformly. (personal communication, Bible, A., October 2, 2000) More 10

12 In addition to investigating trends in arrests of women in mandatory arrest jurisdictions, we examined the issue of dual arrest, the simultaneous arrest of both parties to a domestic dispute. There are no national data on dual arrests but we found that across the country these rates vary widely, from 50% in Washington State, shortly after the implementation of mandatory arrest (Martin 1997), to 2.4% in a Massachusetts jurisdiction (Mignon 1995). Information gathered from three communities with extensive and accessible data found more uniform Dual Arrest rates across jurisdictions, but ones that had varied within jurisdiction over time. For example, Boulder County, Colorado has had a pro-arrest policy since 1986; in 1994, Dual Arrests accounted for 4.3% of the total (Jones and Belknap 1999), but by 2000 this portion had risen to 10% (Boulder County Domestic Abuse Prevention Project: Summary 2000). In Lincoln and Lancaster Counties, Nebraska, through a coordinated community effort, the Dual Arrest rate was reduced by 55%, from 12.1%, in the years following the implementation of mandatory arrest, to 6.2% more recently (personal communication, Moyer, B., January 2, 2001). And in the state of Rhode Island, where a mandatory arrest law has been in effect since 1988, there were 10,222 arrests over the last two years and a Dual Arrest rate of 3.8 percent (personal communication, DuBois, J., January 31, 2001). New York State Evaluations The mandatory arrest statute directed the New York State Office for the Prevention of Domestic Violence (OPDV) and the New York State Division of Criminal Justice Services (DCJS) to evaluate the impact of the mandatory arrest provision. These agencies conducted the evaluation with the State University of New York at Albany Criminal Justice Program and the Unified Court System. The study team issued three Interim Reports and a Final Report to the Governor and Legislature the Final Report was issued in March Key purposes of the evaluation include measuring the impact of arrests, prosecution, and offender recidivism. OPDV/ DCJS Methodology The evaluation methodology included five distinct areas: collection of case-level data from domestic incident reports and analysis of offender recidivism; examination of long-term trends in arrests and convictions for offenses that seemed likely to be domestic offenses; surveys of police, prosecutors, and other members of the criminal justice system; focus group interviews with prosecutors, public defense attorneys, and state court judges; and interviews with domestic violence victims from rural areas. First, OPDV/DCJS analyzed approximately 13,000 Domestic Incident Reports (DIR) from eight research sites and identified approximately 8,700 offenses. The research sites were eight communities throughout New York State, two of which were New York City precincts. The suspect was absent from the scene in approximately half of the domestic incidents; therefore, arrest information was also collected at the 11

13 local level, using police records to identify off-scene arrests. The analysis revealed that 7,000 suspects were responsible for the 8,700 domestic violence offenses. For eighteen months, OPDV/DCJS screened new incidents in the eight sites in order to identify recidivism. Second, OPDV/DCJS examined trends in arrests and convictions for offenses that seemed likely to be domestic offenses. Because the two statewide databases that provide arrest information do not differentiate between domestic and non-domestic offenses, OPDV/DCJS used offenses common to domestic violence as their standard. Third, OPDV/DCJS surveyed agencies in the following areas of the criminal justice system: police, prosecutors, probation departments, domestic violence service providers, and the judiciary. In 1995, surveys were sent to 562 law enforcement agencies, with a 50% response rate that represented 81% of New York State s population. Surveys were also sent at that time to sixty-two district attorneys, with a 75% response rate. In addition, 138 service providers were surveyed, yielding a response rate of over 50%. In 1997, OPDV/DCJS surveyed 58 probation department directors, with an 81% response rate. In 1999, surveys were sent to all non-nyc judges and a random sample of 400 magistrates, with a response rate of 37% for judges and 38% for magistrates. In 2000, OPDV/DCJS conducted follow-up surveys with law enforcement agencies and prosecutors. Fourth, OPDV/DCJS held focus groups on five occasions. The following groups were interviewed: rural/upstate prosecutors, urban/downstate prosecutors, Criminal Court judges, Family Court judges, and public defense attorneys, most of whom were from urban/downstate areas. The focus groups helped to interpret research findings and identify concerns around mandatory arrest. Fifth, the team interviewed eighty domestic violence victims who filed petitions in four urban Family Courts, and ninety-two domestic violence victims from rural communities. The interviews assessed the following: the extent of the abuse; experiences and satisfaction with services provided by the criminal justice system, Family Court, and domestic violence advocates; and views about how victim safety and offender accountability can be improved. OPDV/ DCJS Findings A major focus of the OPDV/DCJS study was offender recidivism. Total recidivism over eighteen months ranged between 28.0% for Site 8 and 41.1% for Sites 4 and 5. The factor showing the strongest relationship to overall recidivism in all eight sites was the existence of an intimate sexual relationship. The OPDV/DCJS study also examined the rate of domestic violence that is reported to police in New York State. Research sites included both non-family cohabiting couples and some non-family sexual intimates (living separately) in their definition of domestic relations. In seven of the eight sites, the annual rate of domestic incidents (including non-arrestable offenses) ranged from 3,000 to 4,000 per 100,000 residents. The annual rate of incidents involving alleged criminal conduct (usually involving a physical attack) varied more it 12

14 ranged from 1,062 to 3,470 per 100,000 residents. The study also found that many suspects had one or more prior arrests for domestic and non-domestic related offenses. Examination of long-term arrest trends implied that a mandatory arrest policy in NYC has likely contributed to growth in arrests for the crimes of criminal contempt, aggravated harassment, and assault, although suburban and upstate New York have shown less growth in arrests for these offenses. Furthermore, the study found that the likelihood of an arrest being made pursuant to a domestic violence complaint was largely based on whether the suspect was present at the scene when the police responded. Arrests almost always occurred when the suspect was still at the scene. However, if suspects were not at the scene when the police arrived, the probability of arrest dropped in these situations, to less than 60% in seven of the eight sites. The study did not intensively focus on victim arrest, although it reported varying data from police and prosecutors on the occurrence of Dual Arrest. Half of the survey responses from prosecutors indicated that Dual Arrests comprise 1 to 5% of arrests, while approximately one-fourth of respondents reported rates of 6-10%. Approximately 30% of the respondents indicated that over 11% of their cases involved Dual Arrests. The OPDV/DCJS focus groups identified the following areas as being issues of concern for criminal justice practitioners: inadequate support for victims of domestic violence; insufficient investigation and evidence collection; difficulty in collection and utilization of information on prior histories of domestic violence; issuance of stay away orders that result in the eviction of a suspect from his home; a need for additional training and role clarification of the judiciary; a need for standards for domestic violence caseloads; and a need for coordination between Criminal and Family Court orders of protection. In terms of victim satisfaction with police response, the Third Interim Report stated that many of the victims interviewed were not satisfied or only somewhat satisfied with their most recent police experience, and many of those interviewed felt that ultimately their abusers were not held accountable for their behavior. OPDV/ DCJS Recommendations The OPDV/DCJS study made a number of recommendations based on their findings. Following are some of the major recommendations: Legislative Recommendations: Remove the sunset clause and continue the statutory requirement for mandatory arrest in New York State; Expand the definition of family to include non-married couples; Lower the Penal Law standard for physical injury; Conduct an assessment of the uses of the Domestic Incident Report; and Require law enforcement protocols for pursuit of off-scene offenders. 13

15 Policy Recommendations: Undertake additional research on the perspectives and needs of domestic violence victims; Increase domestic violence training for police officers; Identify and support promising models of victim advocacy; Coordinate development of protocols for assessing whether verbal threats legally qualify as harassment; Implement mechanisms to share court information to support concurrent jurisdiction; Consider replication of domestic violence special courts Create a statewide data collection system that distinguishes between non-domestic and domestic violence offenses; and Increase training for all court personnel. New York City Evaluations The effects of mandatory arrest beyond simple statistics are just beginning to be studied. As illustrated in the table below, reports of domestic violence in NYC have risen consistently since 1995, and domestic violence arrests have increased as well. The number of arrests doubled between 1993, the year before mandatory arrest was enacted, and 1996, a year after its implementation (Table 1). However, we found this increase to be modest when compared with other jurisdictions. When we looked at arrest rates in several other jurisdictions, we found that the ratio of the number of reports to the number of arrests was uniformly higher than that of NYC. If one compares reports to arrests in NYC in 1996, one year after the implementation of mandatory arrest, 3 the arrest rate was approximately 10%. By the year 2000, the arrest rate had increased only slightly, to 11% (see National Evaluations for arrest rates in the other jurisdictions examined). Table 1. Domestic Incident Reports, Family Dispute Radio Runs, Family Related Arrests and Violations of Orders of Protection, New York City, Year Domestic Incident Reports Family Dispute Radio Runs Family-Related Arrests Violation of Protection Order Arrests Not available 158,094 11,066 Not available , ,687 20,187 2, , ,383 22,564 2, , ,857 24,267 3, , ,137 26,557 3,735 3 Looking at changes in arrest rates before and after mandatory arrest is difficult because uniform reporting of domestic violence incidents by NYPD was not fully instituted until For this reason, we chose to compare 1996, the first full year that Domestic Incident Reports were filled out for every domestic violence incident, to the year The information from this year comes from Behind Closed Doors, A Report of the Family Violence Task Force, April The information for years comes from the annual Mayor s Management Reports issued in the spring of each year. The statistics for each year are based on New York City's fiscal year, July 1 st through June 30 th. 14

16 , ,407 23,420 3, , ,117 23,935 4,012 Yet increased numbers of arrests are not the only goal of the new statute. As stated in the legislative intent of the statute itself, one of the major goals of the Family Protection and Domestic Violence Intervention Act was to provide "the fullest protection of our civil and criminal laws" by stimulating the criminal justice system to come to the aid of victims of domestic violence. 6 Arrest was meant to be the first step in a series of interventions that would help bring safety to a battered woman and her family. However, neither the criminal justice system nor domestic violence service providers have the resources to follow up with the increase in volume of complaining witnesses after the initial arrest intervention. And because New York State s mandatory arrest legislation did not allocate resources to the criminal justice system or service providers to ameliorate some of the law s potentially negative effects, victims of domestic violence in New York City have experienced these repercussions. Further, the tools to identify the problems associated with mandatory arrest are not yet in place in New York City. For example, no official statistics are kept on victim arrest by NYPD or on cross-complaints by the NYC District Attorney s (DA) offices. But we know from other states that the arrest of victims, the influx of victims needing assistance into the criminal justice system, and increased arrests in communities of color as compared with other communities, are serious problems associated with the implementation of mandatory arrest. With this in mind, the Family Violence Project of the Urban Justice Center created a city-wide Helpline in 1995 in order to address some of the problems that would arise from the passage of mandatory arrest in New York State. The Helpline operates from 9AM to 5PM, Monday through Friday, and is answered by a trained intern or staff person. Because funds for the program are limited, the Helpline was advertised initially through a mailing to domestic violence service providers and lately, through word of mouth only. In general, we provide information, referrals and legal advocacy to remedy the problem presented. The Helpline is supervised by an attorney, enabling us to offer in-depth legal information, advocacy, support and case management. We assist a client as long as she is having difficulty securing protection from the criminal justice system. The average duration of advocacy efforts on each opened case is between 3 and 4 weeks. The present study began with a preliminary analysis of data collected between January and December 1998 from the Helpline program. Haviland and Frye (Haviland 1999) conducted an analysis of 6 The legislative findings of Family Protection and Domestic Violence Intervention Act stated, " The victims of family offenses must be entitled to the fullest protections of our civil and criminal law. Therefore, the legislature finds and determines that it is necessary to strengthen materially New York's statutes by providing for immediate deterrent action by law enforcement officials and members of the judiciary, by increasing penalties for acts 15

17 the 103 callers who requested assistance regarding law enforcement and found that of these callers: 24 cases were No Arrests or cases where there was a failure to make an arrest as required by the NYPD policies; 17 cases were Dual Arrests or cases where, after a domestic violence incident, the victim was arrested on the scene; 21 cases were Retaliatory Arrests or cases where the victim was arrested as a result of a false or exaggerated complaint filed by the perpetrator; 24 cases were Too Little Information or cases where the victim lacked adequate information about NYPD policies regarding domestic violence and had questions that affected her safety and options; and 5 cases were Unwanted Arrests where the victim had not wished that the arrest of the perpetrator take place. In examining the 38 Dual and Retaliatory Arrest cases, we found that almost all (97%) had prior histories of domestic violence victimization. Three-quarters had documented histories of violence either through orders of protection or prior police reports, and in 58% of these 38 arrest cases, the arrest was either never executed, voided, or charges were dropped by prosecutors. Sixty-two percent of Dual Arrest cases possessed documented histories of domestic violence at the time of the incident, and in the 5 cases in which the perpetrator claimed an injury, 4 victims reported causing the injuries in self-defense. Thus, when we applied the PPA analysis required under New York State law, we found that in 60% of Dual Arrest cases factors were present which should have indicated who was the primary physical aggressor. This analysis led to recognition of the problem of what we called Retaliatory Arrests. In contrast to Dual Arrest, there is no specific domestic violence policy or law in place in New York State to assist police officers in identifying false or exaggerated complaints in order to prevent Retaliatory Arrests. We examined the extent to which Retaliatory Arrests could be prevented under a PPA analysis and found that in 63% of the cases, the relationship of the parties and the crime charged qualified under the current PPA law. We also found that in Retaliatory Arrests, 63% of clients possessed an order of protection at the time that the complaint was filed, and a total of 76% possessed a documented history of domestic violence. In just 14% of cases, the intimate partner/perpetrator also had a documented history of domestic violence; thus, a small percentage of cases appeared to be cases where both parties committed crimes, or mutual combat." As with the Dual Arrest cases, we found that more than 60% of Retaliatory Arrest cases might have resulted in a different outcome if a PPA assessment had been conducted. RESEARCH METHODS This research was undertaken to evaluate the effects of the mandatory arrest statute on the lives of women who experience domestic violence living in NYC using a blended methodology and input from domestic violence victims and those who respond to victims. Because it is difficult to assess the extent of the already identified problems associated with the statute, the goal was to determine how victims of domestic violence experienced problems related to it and whether they, victim advocates and members of 16

18 the criminal justice system perceived the law to be, on the whole, beneficial. An additional goal was to use the data gathered, within the context of the known social science and criminal justice literature and theory, to generate a series of policy-relevant recommendations that advocates and others might use to improve the law and its implementation. Further, we sought to gather recommendations from the women interviewed as to how to improve the law and the police response. The research had several components, including a quantitative data analysis of the Helpline information management system, a legal analysis of the cases generated by the Helpline, and a qualitative data analysis. 7 The qualitative research component included interviews with Helpline callers and focus groups with representatives of the criminal justice system and the domestic violence advocacy community. We included qualitative methods in our study design because our ability to understand why domestic violence arrests (Dual and Retaliatory Arrests, in particular) and non-arrests occur based solely on quantitative inquiries is limited, for such studies do not investigate the female victims experience of the arrest or their evaluation of the police, themselves, and their partners. Further, quantitative analyses, while critical to proper evaluations, shed little light on how a woman s behavior during an arrest situation affects an arrest outcome or how she evaluates the interaction. Finally, we know little of the effects of arrest on women s lives. Our research applies a qualitative approach to identify the complex interactional dynamics that shape police responses to domestic violence incidents in mandatory arrest jurisdictions by studying the interpretations and actions of the women and the police during these encounters from the perspectives of the women involved. Legal Analysis Research Design As part of this research project, the research team examined in some detail the cases opened for advocacy as a means of assessing some of the problems associated with the implementation of mandatory arrest. We chose to look at these cases because they exemplify what a subset of victims of domestic violence perceive as the problems with police intervention in New York City. However, it must be stated at the outset that assessing the problems through this mechanism does not account for the problems suffered by those who were unable to reach out for assistance. Because of the self-selected nature of the victims who called the Helpline, we are unable to determine whether our study represents the universe of problems experienced by victims of domestic violence, nor can we speak to the frequency with which these problems are experienced by victims. What follows, rather, is a description of the police-related calls to the Helpline and some of the commonalties among them. 7 Our focus on the mandatory arrest law led us to concentrate on calls made to the Helpline involving police issues. The Helpline receives calls concerning all types of criminal justice issues that involve domestic violence. 17

19 Several aspects of cases were analyzed. First, we looked at demographic information regarding callers, the history of domestic violence, and their geographic location. Secondly, we assessed the nature of and the frequency with which problems were presented. Our analysis of our first year of data (Haviland 1999) began to reveal a set of problems associated with mandatory arrest. These included: non-arrest when the law required arrest; the arrest of victims; lack of knowledge by callers of police policies and laws regarding domestic violence; and arrests that were opposed by the victim. Through an analysis of 1998 data, we also found that the majority of clients had a past history of violence and that a significant number presented risk factors for serious violence. Aiming to identify policy solutions from this research, we used these preliminary results to examine more closely what we believed was one of the most serious emerging problems for victims of domestic violence under mandatory arrest, namely victim arrest. We focused on victim arrest for several reasons. First, we had observed the trauma inflicted by an arrest as well as the danger presented to the victim and children when an arrest is made of a victim of domestic violence. Secondly, while Dual Arrest has received considerable attention, the more generic problem of victim arrest under mandatory arrest has not been clearly understood in many jurisdictions. We believe that defining the problems, identifying patterns of practice, and understanding the problems from the perspectives of the victims who have experienced the application of the law would be an important contribution to our collective understanding of the effects of mandatory arrest. Thirdly, though the non-arrest of batterers is arguably as potentially dangerous to victims as Dual or Retaliatory Arrest, the mandatory arrest law and current police policy emphasize the importance of arrest. This provides the impetus for policy solutions to this problem and improvements in the implementation of the law. However, the area of victim arrest has not received the same attention in reports and articles evaluating mandatory arrest. As a result, we examined these cases in some detail to evaluate whether policies developed to address the problem of victim arrest were sufficient and whether these policies were being applied properly. Quantitative Analysis Research Design In the quantitative component of this research, we used data from the FVP s computerized information management system to describe the population of FVP Helpline callers who presented a policerelated matter and evaluated relationships between arrest outcomes and various sociodemographic factors. Using SPSS Version 9.0, we generated frequencies of select victim and perpetrator sociodemographic factors across the following "arrest outcome" categories: Dual Arrest or the arrest of both parties to a domestic dispute, Retaliatory Arrest where the victim was arrested as a result of a false or exaggerated complaint filed by the perpetrator, Non-arrest when t 18

20 mandatory arrest problem categories and various victim and perpetrator sociodemographic factors. We used a statistic called Chi-Square," which evaluates relationships between dichotomous variables, or factors where the answer is either yes or no. We also calculated odds ratios which revealed whether a particular sociodemographic factor was associated with an increase or a decrease in the likelihood of a particular arrest outcome. We set our p-value, the number that tells us the probability of incorrectly finding a statistical association where none truly exists, at.10; this means that we only had a 10% chance of concluding wrongly that there is a relationship between the adverse arrest outcomes and selected sociodemographic factors. We examined associations between each arrest outcome and the following factors: victim-level characteristics: race, income, borough of residence, public assistance receipt, and public housing occupancy; perpetrator-level characteristics: race, psychiatric history, and alcoholism; shared victim-perpetrator characteristics: race concordance and race discordance; assault incident characteristics: weapon use, type of weapon used, previous DIR, and previous orders of protection (OP). We reviewed the literature to identify relevant victim- and perpetrator-level characteristics that are associated with arrests. We concluded that both batterer and female victim characteristics and behaviors have an impact on whether an arrest is effected or not. For example, the literature revealed that the following victim behaviors and characteristics are related to whether police officers are likely to make an arrest: class (Belknap 1995), race (Bachman and Coker 1995; Belknap 1995), injury severity (Bachman & Coker 1995; Belknap 1995; Buzawa & Austin 1993), and marital status (Buzawa and Austin 1995). Perpetrator intoxication was found to be positively related to arrest (Worden and Pollitz 1984) and households with a prior history of calls to the police for domestic disputes were found to be twice as likely to witness an arrest (Smith 1987). Other researchers have suggested that micro-interactions between the parties and police, such as victim requests for arrests, affected the officers decisions whether to arrest (Eigenberg 1996; Buzawa & Austin 1993; Worden and Pollitz 1984). In terms of Dual Arrests, again we turned to the literature for guidance in the quantitative analyses. Lyon (1999) found that in two sites in Michigan women were more likely to be arrested in domestic violence cases when the police had been called to the scene in the past, but were less likely to be arrested if the police learned of a previous domestic abuse history. Martin (1997) found that Dual Arrest defendants tended to be young, unmarried women who lived with their co-defendants and were typically arrested for physically assaultive acts. Female Dual Arrest defendants perpetrated physical violence as often as male Dual Arrest defendants, but more frequently than single arrest defendants (male and female), and female Dual Arrests tended to involve alcohol or drugs more frequently than male Dual Arrests or single arrests. Female Dual Arrest defendants were less likely to have a prior family violence offense and were more likely to have experienced prior domestic violence victimization than were male Dual Arrest defendants or single arrest defendants. 19