The second policy recommendation is the substitution of structured police discretion. If an officer didn’t actually witness the domestic violence or have probable cause that violence occurred, Sherman states that, “state legislatures should mandate that each police agency develop its own list of approved options to be exercised at the discretion of the officer.” (Monk, 2001: 92) These options would include allowing the victims to decide whether to have their batterer arrested, allowing the officer to recommend counseling programs or transport either the victim or batterer to another place for the night, all in the effort to alleviate the mandatory arrest that is suggested by Starks.
Sherman’s third recommendation is to allow warrant less arrests. Warrant less arrests are a good idea because it allows the officer to arrest in cases he feels there was probable cause of violence and is not subjected to mandatory arrest the batterer. As Sherman’s shows his support of this recommendation he states that, “Deciding when to use it can then become a matter of police policy based on continuing research and clinical experience, rather than on the massive effort required to change state law.” (Monk, 2001: 92) I feel this recommendation could work because it gives the power to the police but also allows for some leverage on not arresting without hearing out both sides.
The next recommendation, which was thought from the landmark Omaha experiment is to encourage issuance of arrest warrants for absent offenders. Offenders who left the scene before policed arrived and whose cases were randomly assigned to the warrant group produced less repeat violence than did similarly absent offenders assigned to the non-warrant group. As Sherman states, “The issuance of a warrant may have acted as a “sword of Damocles” hanging over an offender’s head.” (Monk, 2001: 88) This simply means that if an offender knows he has a warrant loaming over him, he will be more careful with respect to the laws. Since a lot of research hasn’t been done with this experiment, except in Omaha, the long-term effect on this recommendation are not known, but is one that Sherman suggests should be adopted.
Sherman’s last recommendation in an effort to convey that arresting batterers cause more harm than good is for special units and policies to focus on chronically violent couples. Most domestic violence in a city is limited to a few couples that have had reoccurring troubles. Police should treat these violent couples with the highest priority instead of framing the whole policy debate around responses to incidents when most of the problems are the chronic couples. Sherman states that, “The challenge is to develop procedures for violent couples that do not invade family privacy. He ends his recommendation by saying that, “It deserves the highest priority in policing domestic violence.” (Monk, 2001: 92)
Sherman’s five recommendations are very detailed and provide a good understanding of why arresting batterers could cause more harm than good. He realizes that every domestic violence dispute is not the same and should be treated differently. Julian Leigh, of the Domestic Violence Clearinghouse and Legal Hotline agrees with Sherman and contends that, “The first priority of a police officer attending the scene is the care and welfare of the victim and to ensure they (and any children) are protected from further risk of violence. Officers will offer help and practical support to the victim and, if necessary, arrange for medical help or alternative accommodation.” (Leigh, 2001: 1) Mandatory arrest would be beneficial to some, but harmful to others and the objective is to find the happy median. Evan Stark believes the happy median is mandatory arrest and his in depth points back up his stance of why mandatory arrest is a big step in the fight with domestic violence.
In Starks response to Sherman, he combats Sherman’s five recommendations with his five reasons for mandating arrest. The first reason for mandating arrest was to control police behavior. Stark contends, “The fact is that, in disregarding battering, minimizing its consequences, and blaming the victims of abuse, police were no different from other professional groups.” (Monk, 2001: 98)
The second reason for mandatory arrest involved immediate protection from current violence. Victims who have been battered want the current violence to disappear immediately, and the idea of taking the batterer out of the house or away from the victim is crucial. As Starks states, “Arrest provides a meaningful opportunity for battered women to consider their options and gives those women ready to end the relationship time to go elsewhere or to obtain a protective order.” (Monk, 2001: 98)
Third in importance is the desire to reduce the overall incidence of domestic violence both directly, because arrest might deter recidivism, and by sending a clear message that battering was unacceptable. Batterers have to understand the severity of domestic violence and the effect is has on whomever they batter. “The policy of mandatory arrest also has the indirect function of setting a standard of zero tolerance for battering that other institutions can emulate.” (Monk, 2001: 99)
Fourth, making battering the only crime in which police discretion is removed acknowledges a special social interest in redressing the legacy of discriminatory treatment of women by law enforcement. (Monk, 2001: 99) This is another reason, which reinforces the importance of how serious a crime domestic violence is. “Mandating equal protection in this way also helps counter the general reluctance of courts to extend to women the civil rights protection granted to racial minorities. (Monk, 2001: 99)
Starks final reason for supporting mandatory arrest was what might be termed its “redistributive” function. The “redistributive” function as termed by Starks is, “the perception that police service is a resource that had heretofore been hoarded by others and now should be made available to women on a more egalitarian basis.” (Monk, 2001: 99)
Starks has many supporters in the idea that mandatory arrest is needed and shouldn’t be taken lightly. Dr. Hirschel, another employee of the Domestic Violence Clearinghouse and Legal Hotline agrees that another important rationale for pro-arrest policy is the goal of modifying the behavior of society. When police fail to arrest, prosecutors fail to prosecute and courts fail to convict, battering is tacitly condoned. Hirschel states, “Not to arrest may communicate to men that abuse is not serious and to women the message that they are on their own. It may communicate to children, who very often witness abuse of their mothers, that the abuse of women is tolerated, if not legitimated. It may communicate to the public at large that a level of violence which is unacceptable when inflicted by a stranger is acceptable when inflicted by an intimate.” (Leigh, 2001: 1) These important reasons stated by both Starks and Hirschel emphasize the fact that mandatory arrest is important to society, and domestic violence is something that needs to stop and not be taken lightly.
Stopping domestic violence completely is not practical, but lessoning the occurrences is something that can be done and should be done. Whether it is through mandatory arrest or alternative methods, any recommendation to protect victims is the right method. Both Sherman and Starks presented their cases with solid reasons why arresting batterers do and don’t cause more harm than good. Some reasons worked better for some in different areas and for different groups of people. I don’t feel a decisive answer can be made because we have such a diverse group of people, which means it’s almost impossible to make everyone happy. Whether it’s through mandatory arrest or alternative methods, the objective is to help as many people as possible while hurting the fewest.
List of References
Cobbe, F.P. (1878). Wife torture in England. Contemporary Review, 32, 55-87.
Leigh, Julian (1997) “Arresting Domestic Violence..Does it work,” Domestic Violence Clearinghouse and Legal Hotline. http://www.stoptheviolence.org
Monk, Richard (2001) Taking Sides: Clashing Views on Controversial Issues in Crime and Criminology. Guilford, CT: Dushkin/McGraw-Hill.
Sherman, L.W., Schmidt, J.D., & Rogan, D.P. (1992). Policing domestic violence: Experiments and dilemmas. New York: Free Press.
