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Reducing Domestic Violence Dual Arrests

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Reducing Domestic Violence Dual Arrests:

The Importance of Including a Primary Aggressor Provision in Connecticut’s Mandatory Arrest Law

Dual Arrests in Connecticut are Unacceptably High

Connecticut has the unwelcome distinction of having the highest domestic violence dual arrest rate in the nation.[1] Although Connecticut’s domestic violence dual arrest rate shows slight discrepancies each year, we know with a good degree of certainty that our domestic violence dual arrest rate has hovered between 20% to 40% from 1988 to the present.[2] That news is particularly grim when compared with a Department of Justice study which indicates that the national rate for intimate partner violence arrests is closer to 3.8%.[3] The picture is equally dismal when Connecticut is compared with our neighboring states. In 2007, for example, Rhode Island’s dual arrest rate was between 2-5%.[4] Recent research has examined the factors that may account for the stark contrast in dual arrest rates between Connecticut and the rest of the nation. Of these factors, the most compelling is the effect of Connecticut’s mandatory arrest law without a companion primary aggressor provision.

David Hirschel’s 2007 research for the Department of Justice supported the theory that a common consequence of a mandatory arrest law is a higher rate of dual arrest in intimate partner and other domestic violence cases.[5]   We have seen this play out in Connecticut for many reasons. Connecticut General Statute § 46b-38b(a) requires the arrest of the person or persons suspected of a family offense.[6] This mandatory arrest law removes the intuitive skill of officer discretion from the arrest decision, and instead substitutes the officer adopting a “legalistic orientation” in his or her approach to resolving a domestic violence situation.[7] All too often, police officers responding to domestic violence calls may be faced with acutely conflicting accounts of what transpired, with each party claiming to be the true victim. In many cases, a victim may have used a level of justifiable self-defense to protect herself from an assault. However, because of the mandatory arrest law, many officers may feel as if they are forced to throw their common sense out the window and fail to take into account important factors such as the history of the parties, defensive and offensive wounds, and the relative power disparity between the two parties. This frequently results in a “dual arrest,” whereby both parties involved in the incident are arrested and the prosecutors and judges are left to determine who is at fault for the criminal behavior.[8] In examining this troubling trend, the frequency with which police officers may cite a fear of civil liability if they fail to arrest both parties – particularly if both parties have demonstrable physical injuries – cannot be overlooked.

Hirschel’s study, the first of its kind to examine domestic violence dual arrest rates on a national scale, formed striking conclusions that have direct relevance to this issue in Connecticut: (1) mandatory arrests laws produce higher rates of dual arrest;[9] (2) the data suggests that primary aggressor provisions are associated with fewer dual arrests rates, and thus, should be considered by policy makers;[10] and (3) the only mandatory arrest state that did not have a primary aggressor provision at the time of the study (Connecticut) also had by far the highest dual arrest rate.[11] The enactment of a primary aggressor provision, would, if properly implemented, have a direct impact on the exceedingly high dual arrest rate in Connecticut.

What is a Primary Aggressor Law?

A primary aggressor law would direct officers to evaluate such factors as: comparative injuries of the parties; whether either party has threatened or is threatening future harm against another family or household member; whether either party has a history of domestic violence/complaints of domestic violence that can be reasonably ascertained; the relative sizes and apparent strength of each person; and whether either party acted in self defense. One of the key findings in a study conducted through the Family Violence Project of the Urban Justice Center was that a primary aggressor analysis is a potentially powerful tool for evaluating domestic violence arrests. The report concluded that the use of such evaluations would have prevented almost 60% of dual arrests involved in the study.[12] Additionally, a document published by the National Institute of Justice in June 2009, reported that primary aggressor policies “significantly reduce the percentage of dual arrests from an average of 9 percent to 2 percent of domestic violence arrests.”[13]

Dual Arrests Re-Victimize and Endanger Victims

Dual arrests are problematic for a number of reasons. Most importantly, a dual arrest re-victimizes the victim by labeling her as an offender in the criminal justice system and placing her in greater risk of danger. In most domestic violence situations, it is the victim who calls the police for assistance, only to find herself subsequently arrested. When the criminal justice system labels the victim as an offender, it creates a level of mistrust and increases the likelihood that the victim will be reluctant to call the police for assistance in the future. Additionally, dual arrests flood the domestic violence dockets with cases of questionable merit and make it difficult for the prosecutors to not only determine which party is the predominant aggressor, but, more importantly, to hold that individual appropriately accountable. This result is the exact oppose of what was intended by Connecticut’s domestic violence legislation.

These outcomes make every actor in the criminal system mistrustful of the ability of the courts to protect victims. Advocates from across the State have heard from countless victims who have found themselves arrested as part of a dual arrest that they will never call the police again, and that the experience crippled her belief that the criminal justice system would stand for her. Instead, the message that is sent to her by law enforcement and the court system is that she is somehow at fault for the abuse.

Connecticut Can Reduce the Percentage of DV Dual Arrests by Adopting Primary Aggressor Law

As stated above, Connecticut’s mandatory arrest law removes discretion from police officers and results in unnecessary dual arrests. This leads to victim mistrust in the system and clogged DV docket courts. Without companion “primary aggressor” language to our mandatory arrest law, the door will continue to be left wide open for both parties to be arrested, even in cases where law enforcement would have little difficulty in discerning which party is at fault. 

To avoid this problem, Connecticut must pass a primary aggressor law, accompanied by new departmental policies and procedures, law enforcement trainings, and accountability mechanisms. Domestic violence crimes are amongst the most difficult and murky types of cases a police officer encounters. A primary aggressor law provides the officer with not only the ability to determine which party is the true offender in the relationship and presenting situation, but also provides the precise criteria the officer should use to make this determination. 

Enactment of a primary aggressor law will most certainly decrease Connecticut’s dual arrest rates. Research funded by the U.S. Department of Justice reveals that primary aggressor policies significantly reduce domestic violence dual arrests from an average of 9% to 2% of all arrests.[14] Additionally, a 2007 report funded by the Department of Justice examined arrest data from 2000 and found that in states with laws that either encouraged or required a determination of “primary aggression,” the dual arrest rate was a quarter of the rate as compared to states without a primary aggressor law.[15]

Connecticut’s neighboring states have implemented primary aggressor laws and have seen a decreased dual arrest rate as a result. New York, New Hampshire, New Jersey and Rhode Island all have versions of primary aggressor legislation. New York’s primary aggressor law serves as a strong and detailed model for legislation, with the goals of victim safety and the assistance of law enforcement in their duties.

New York State provides as follows: 

… when an officer has reasonable cause to believe that more than one family or household member has committed [a family violence offense] the officer is not required to arrest such person. In such circumstances, the officer shall attempt to identify and arrest the primary physical aggressor after considering:

(i)     the comparative extent of any injuries inflicted by and between the parties;

(ii)   whether any such person is threatening or has threatened future harm against another party or another family or household member;

(iii) whether any such person has a prior history of domestic violence that the officer can reasonably ascertain; and

(iv)  whether any such person acted defensively to protect himself or herself from injury.

The officer shall evaluate each complaint separately to determine who is the primary physical aggressor and shall not base the decision to arrest or not to arrest on the willingness of a person to testify or otherwise participate in a judicial proceeding.

N.Y. Crim. Proc. § 140.10 (4)(c)(2001).

Similarly, the New Hampshire statute provides for a determination of primary aggressor as follows:

When the peace officer has probable cause to believe that the persons are committing or have committed abuse against each other, the officer need not arrest both persons, but should arrest he person the officer believes to be the primary physical aggressor. In determine who is the primary physical aggressor, an officer shall consider the intent of this chapter to protect the victims of domestic violence, the relative degree of injury or fear inflicted on the persons involved, and any history of domestic abuse between these persons if that history can reasonably be obtained by the officer.

N.H. Rev. Stat. Ann. §173-B:10 II (2002)

Although it does not directly reference the term “primary aggressor,” the New Jersey statute encourages officers to make a determination of culpability based upon the presenting circumstantial evidence at the scene and the history of the parties. New Jersey provides as follows:

In determining which party in a domestic violence incident is the victim, where both parties exhibit signs of injury, the officer should consider the comparative extent of the injuries, the history of the domestic violence between the parties, if any, and any other relevant factors. No victim shall be denied relief or arrested or charged under this act with an offense because the victim used reasonable force in self-defense against domestic violence by an attacker.

N.J. Rev. Stat. § 2C:25-21.5c (2) & (3) (2002).

The example of our neighboring states, with their primary aggressor laws and lower rates of domestic violence dual arrests, must serve as a model for Connecticut. National research supports the conclusion that Connecticut should learn from those other states who have already taken steps to address exceedingly high dual arrest rates and follow suit. The 2009 report by David Hirschel for the Department of Justice (hereinafter “Report”) issues the following recommendation for the police departments and the court systems in those jurisdictions, like Connecticut, with dual arrest rates exceeding the national average: “If the rate of dual arrests exceeds that found on average across the country, law enforcement departments should develop and implement specific primary aggressor policies and protocols.”[16] For prosecutors faced with clogged dockets from dual arrests, the Report recommends an independent investigation to determine whether one party was the primary aggressor.[17] If the investigation does find one party to be at fault, the prosecutor should proceed against that party alone. In dual arrest cases before the judicial authority, the Report suggest that judges insist on specific evidence from prosecutors in order to demonstrate that one party is the primary aggressor and the other party the victim.[18] The report cautions judges to pay particular attention to the possibility of female victims who are arrested along with the male abuser and who may plead guilty in order to be able to return home and care for minor children without the interruption of repeated court appearances and attendance at a court-mandated program.[19]

Connecticut Domestic Violence Victims Deserve the Protection of Primary Aggressor Legislation

In our efforts to improve victim safety and combat the crime of domestic violence, the State of Connecticut made ground-breaking strides in 1986, with the enactment of our landmark domestic violence legislation. Since its inception over twenty-five years ago, there have been improvements, but Connecticut has fallen behind the rest of the nation, particularly with respect to dual arrests. It is time for Connecticut to acknowledge the weaknesses inherent in our mandatory arrest policy and seek to reduce our embarrassingly high dual arrest record. The enactment of primary aggressor legislation, with companion training for police, prosecutors, and judges will be a strong first step in our commitment to ending domestic violence in the State of Connecticut.

 



[1] See David Hirschel, Domestic Violence Cases: What Research Shows About Arrest and Dual Arrest, Ch. 1, §1 (July 25, 2008) (e-publication for National Institute of Justice, http://www.ojp.usdoj.gov/nij/publications/dv-dual-arrest-222679/welcome.htm).

[2] The first detailed study of dual arrests in Connecticut was conducted just after the enactment of mandatory arrest legislation in 1988. At that time, in the cases of adult intimate family violence, the dual arrest rate was 33%. See David Hirschel, Explaining the Prevalence, Context, and Consequences of Dual Arrest in Intimate Partner Cases, at 11 (May 2007) (unpublished report for the U.S. Department of Justice, Doc. #218355). In 2004, Lisa Holden, the former Executive Director of the Connecticut Coalition Against Domestic Violence, testified for the Judiciary Committee concerning House Bill 5293, An Act Concerning Dual Arrests in Family Violence Cases, and stated that the dual arrest rate was 25%. See An Act Concerning Dual Arrests in Family Violence Cases: Hearing on HB-5293 before the Judiciary Committee (March 1, 2004) (statement of Lisa Holden, http://cga.ct.gov/2004/jfr/h/2004HB-05293-ROOJUD-JFR.htm). In that same proceeding, Alice Pritchard, the Executive Director of the Connecticut Women’s Education and Legal Fund stated that the Connecticut Department of Public Safety indicated that the Connecticut rate was between 23-26%, while the national average was approximately 13%. See id. In 2000, the Connecticut Department of Public Safety indicated that the domestic violence dual arrest rate was 30.8%. See David Hirschel, Explaining the Prevalence, Context, and Consequences of Dual Arrest in Intimate Partner Cases, at 12 (May 2007) (unpublished report for the U.S. Department of Justice, Doc. #218355). In Hirschel’s May 2007, Department of Justice Report, he cites Connecticut as having “by far the highest actual dual arrest rate (13.6%) … [and a] potential dual arrest rate of 21.2%.” Id. At 97-98. Although there are vastly different percentages within the various state agencies in Connecticut, each and every statistic still places Connecticut with the highest rate in the nation.

[3] See David Hirschel, Explaining the Prevalence, Context, and Consequences of Dual Arrest in Intimate Partner Cases, at 167 (May 2007) (unpublished report for the U.S. Department of Justice, Doc. #218355).

[4] See id. at 12. See also An Act Concerning Dual Arrests in Family Violence Cases: Hearing on HB-5293 before the Judiciary Committee (March 1, 2004) (statement of Lisa Holden).

[5] See David Hirschel, Explaining the Prevalence, Context, and Consequences of Dual Arrest in Intimate Partner Cases, at 82 (May 2007) (unpublished report for the U.S. Department of Justice, Doc. #218355).

[6] See CONN. GEN. STAT. § 46b-38b(a) (2010) (italics added).

[7] Id. at 172.

[8] See David Hirschel, Explaining the Prevalence Context, and Consequences of Dual Arrest in Intimate Partner Cases, at 82 (May 2007) (unpublished report for the U.S. Department of Justice, Doc. #218355).

[9] Id. at 172.

[10] Id.

[11] Id. at 172-174.

[12] See Mary Haviland, et al., The Family Violence Protection and Domestic Violence Intervention Act of 1995: Examining the Effects of Mandatory Arrest in New York City, at pg 6 (a report by the Family Violence Project of the Urban Justice Center) (funding provided by the Center on Crime, Communities and Culture of the Open Society Institute).

[13] See Andy Klein, Practical Implications of Current Domestic Violence Research: For Law Enforcement, Prosecutors and Judges, at pg 1 (June 2009) (published by the National Institute of Justice – the Research, Development, and Evaluation Agency of the U.S. Department of Justice) (found at: http://www.nij.gov/nij/topics/crime/intimate-partner-violence/practical-implications-research/ch2/primary-aggressor.htm).

[14] See Andy Klein, Practical Implications of Current Domestic Violence Research: For Law Enforcement, Prosecutors and Judges, at Ch. 2, § 12 (U.S. Dept. of Justice, National Institute of Justice) (published June 2009) (http://www.nij.gov/topics/crime/intimate-partner-violence/practical-implications-research/welcome.htm).

[15] See Conn. Gen. Assembly, OLR Rep., Domestic Violence Primary Aggressor Laws, #2009-R-0460 (Dec. 11, 2009). See also David Hirschel, Explaining the Prevalence Context, and Consequences of Dual Arrest in Intimate Partner Cases, at 172 (May 2007) (unpublished report for the U.S. Department of Justice, Doc. #218355).

 

[16] See Andy Klein, Practical Implications of Current Domestic Violence Research: For Law Enforcement, Prosecutors and Judges, at Ch. 2, § 12 (U.S. Dept. of Justice, National Institute of Justice) (published June 2009) (http://www.nij.gov/topics/crime/intimate-partner-violence/practical-implications-research/welcome.htm)(visited June 20, 2011).

[17] See id.

[18] See id.

[19] See id.