August 16, 2005

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by Richard L. Davis & Jan E. Brown

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Casey Gwinn, is the chair of the California Attorney General Task Force on Local Criminal Justice Response to Domestic Violence. The task force report is “Keeping the Promise” Victim Safety and Batterer Accountability”.

The task force report presents four recommendations to the California Attorney General. Although there are a great many people involved in this report, only for matters of simplicity, Gwinn as the chair of the task force should be held accountable for the reports failings. This paper addresses the task force reports’ recommendation about prosecuting domestic violence misdemeanors.

As noted in Part I, what “Keeping the Promise” and California law ignores is that the issuance of restraining orders, mandatory arrest and no-drop-prosecutions, batterer intervention programs, and mandatory health practitioner reports can be positive and productive concerning some “battering” behavior and they can be negative and counter productive concerning “family conflict.”

Ignoring the Obvious

In the second paragraph of this section Gwinn notes, “For example, victims are often hostile to the prosecution, and recant prior damaging statements about the defendant.” Not all family members who seek help are “battered” and many of the defendants are not “batterers.” California’s “one-size-fits-all” domestic violence laws ignore the difference between “battering” and “family conflict” and many in the criminal justice system ignore the fact that domestic violence can be a complex and multifaceted problem.

Battering Behavior

Most researchers agree that a “batterer” is a family member or intimate partner who with premeditation and malice aforethought repeatedly uses coercion, force or violent physical assaults to manipulate and control the behavior of another family member or intimate partner. Research documents that most “batterers” are dangerous and violent people. Many suffer from anti-social personality disorders, regardless these “batterers” deserve to be arrested.

Family Conflict

Family conflict most often occurs withoutpremeditation or malice aforethought and involves the use of threats and/or minor physical assault in a specific or isolated disagreement. This behavior is often the result of perceived misbehavior, financial matters, jealously, and animated and vocal disagreements.

California courts and social service agencies do not provide individualized attention to identifiable specific problems and mandatory arrest and no-drop policies demand that criminal justice interveners ignore the wishes and needs of the families. Criminal justice intervention is most often just one brush with the same paint for everyone.

The Gwinn report also notes that:

A majority of the prosecutors’ offices in the core counties, however, do not work with community-based victim advocates and agencies that provide such services, preferring instead to work only with their own victim advocates.

Gwinn then suggests that the prosecutors’ office should work with community-based victim advocates. That cooperation will not take place until the “one-size-fits-all” practices of the 20 th century are changed to reflect the complexities of domestic violence offenders and victims.

Many advocates understand what this task force ignores. Many of the policies this task force recommends may be right for the “system” however, they may be wrong for many families. Intervention will fail until it is tailored to meet the needs of individual families.

The risk of death or further injury concerning many interventions depends upon the proper understanding the context of the incident, the individual characteristics of the family and the offender and the typology of intervention provided.

No-drop prosecution policies place the need of the state/community ahead of families by ignoring the context of specific incidents and the needs of individual families. And then the “system” wonders why many families are hostile to criminal justice prosecution policies that ignore all of the above.

A Really Bad Idea

As the City Attorney for San Diego Gwinn is the architect of the policy of prosecuting misdemeanor domestic violence cases even when the victims are unwilling or unable to participate in the prosecution. This concept was labeled “No-Drop-Prosecution.” The name is actually a misnomer as there are no jurisdictions that actually prosecute each and every domestic violence incident. However, the philosophy is to ignore the needs and desires of families and to prosecute cases that appear winnable and against the wishes of those who have been abused.

The reasons not to aggressively prosecute many domestic violence misdemeanors should be obvious. However, the foremost reason is that a DOJ sponsored study of homicide data in 48 states documents that increased prosecution rates increased the death rate for many intimates in those jurisdictions.

The above report, Exposure Resources on Intimate Partner Homicide, Final Report, documents that increasing prosecution was associated with increasing the number of deaths of white married couples, black unmarried intimates and white unmarried women. To not address this issue after the fact and not before putting in place no-drop prosecution is inexcusable.

A study of the Quincy District Court in Massachusetts found that aggressive prosecution policies in that court increased by 2.5 times the likelihood that victims, when abused again, would not report that incident to law enforcement (Buzawa & Buzawa, 2002). Perhaps the fact that their needs are minimized or ignored plays a part in their decision making process.

Advocates for Who?

What is truly strange about mandatory arrest and no-drop prosecution is that many domestic violence advocates, particularly those who work in conjunction with the prosecutor’s office, continue to approve of these “one-size-fits-all” policies. At the heart and core of the domestic violence advocate movement and the belief that connects choice with the empowerment of women. How or why is it that many of these advocates can not see that mandatory arrest and no-drop prosecution is all about no choice and disempowering women?

Choice is at the heart and core of all domestic violence advocacy agencies. Those who train the many volunteers who answer domestic violence hotlines and provide advocacy in the courts, train those advocates to always remind the victims that the decision to leave their abuser, file criminal charges, etc. must be theirs and no one else’s.

Volunteer advocates are reminded, consistently and constantly, to never advise the victim/survivor’s as to what course of action they should take. Empowerment derives from allowing the victim/survivors to make independent decisions. Removing choice is disempowering!

How or why is it then that so many prosecutors, domestic violence advocates and members of the “Keeping the Promise” task force are actively involved in the disempowerment of victims by removing their right of choice by forcing mandatory arrest and no-drop prosecutions on victim/survivors? What can possibly cause that juxtaposition?

What Not To Do

It is often reported that law enforcement officers have been reluctant to make arrests in every misdemeanor domestic violence incidents they respond to. What is not written is that many officers made that decision to help not harm the families. The officers understood that many families are seeking assistance and solutions not arrest and sanctions.

The officers also believed that some people they arrested, with the consent of the person who was abused, would return home shortly after the arrest. Officers believed, rightly or wrongly, that many people after being arrested might take out their anger on the person who caused their arrest.

Officers also understood that the offender was sometimes involved in “family conflict” and was not a “batterer.” It is not always family members who call law enforcement. When some “family conflicts” rise to the level of physical assaults, a neighbor or someone who witnesses the conflict will call the police.

Many domestic violence advocates and responding officers know full well that often the “system” places itself first and families second. Arrests are made to ensure that the law enforcement agency will not be sued for “not doing their job.”

In the case of “no-drop” policies there appears to be no question that the hierarchal “system” believes it is intellectually superior and more important than the “family” or an individual family member. If that was not true they prosecutors would listen to the families desires.

The few DOJ sponsored studies that claim to document that families do approve of “no-drop” policies have such small interview samples that it is unlikely that those results are representative of the general population (Buzawa & Buzawa, 2002).

And again, it is simply illogical to treat victims and offenders as if they are some monolithic group. Anyone who has had face to face interactions with families and offenders, not after the fact research reviews of data sets, understands full well the diverse problems and even more distinct and dissimilar needs families have.

Conclusion

After reviewing the growing number of DOJ sponsored studies that report “no-drop” policies are not a good idea, one must conclude that the Gwinn and the other task force members are not aware of these studies or have made the choice to ignore them. Most empirical studies conclude that dragging each and every family into court and prosecuting family members against the will of other family members is not always a good idea.

Our research findings suggest that prosecutors should re-assess whether coercing victims to assist in the prosecution of their abusive partners is worth the costs. Use of coercive actions has the effect of lowering victims’ empowerment, and this should not be an acceptable outcome for prosecutors.

Another study documents that:

What is troublesome is that this research has found that despite the victim’s experience with a “model” intervention program reporting was still a major concern as the majority of victims did not report subsequent offenses to the police. In fact this research adds credence to earlier expressed fears that a too aggressive criminal justice response that did not reflect diversity of victim desires might have had the unintended effect of deterring future reporting.

It is difficult to understand why the state of California, Gwinn or many members of the task force have made the decision to continue to ignore the following warning.

Finally, we do not know whether no-drop increases victims safety or place the victims in greater jeopardy. . .Before no-drop is embraced as a desirable policy, we owe it to victims to find out whether they are well-served by taking away their right to decide the extent to which they want to pursue a criminal justice solution to their problem.

In this section of the “Keeping the Promise” report Gwinn writes, “Domestic violence victims who receive support and services are more likely to be and feel safe and thus more likely to cooperate with prosecutors.” There is little to disagree with here.

However, California laws that include mandatory arrest and no-drop prosecution policies for domestic violence can have just the opposite effect. Refusing to understand the proper context of the incident and ignoring their wishes is not seen by many victim/survivor’s as being “supportive” of their needs.

Perhaps Gwinn and the task force members should have read the “Mandatory Arrest and Prosecution Policies for Domestic Violence” report that can be found at the National Violence Against Women Prevention Research Center website. This report notes:

Recent data suggest that arrest may actually increase abuse for some women [emphasis added]. The number of jurisdictions implementing mandatory prosecution has increased, even though data on the benefits and drawbacks of the policy are scarce.

When batterers were arrested, victims experienced repeat abuse in 26 percent of the cases. When batterers were arrested and the victim perceived the police as concerned and willing to listen [emphasis added,] the repeat abuse rated dropped to nine percent.

There seems to be little doubt among scholars and researchers, and this includes many feminists, that mandatory arrest and no-drop policies are not good ideas. In fact, recommending that the state of California should enforce the mandatory arrest dragnet and no-drop prosecution persecution may very well have the effect of victimizing once again many of the families the criminal justice, because of those policies, engulfs.

The next article will address the “Keeping the Promise” recommendations about batterer intervention programs, probation departments and the courts.

Richard L. Davis & Jan E. Brown

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Richard L. Davis (Lt.ret) is the author of Domestic Violence: Fact and Fallacies, an adjunct instructor of criminal justice courses for Quincy College at Plymouth and the VP of www.Familynonviolence.org. He may be reached at rldavis@post.harvard.edu

Jan E. Brown is the Founder and Executive Director of the Domestic Abuse Helpline for Men and Women, a national crisis line that offers support and services to victims of domestic violence. www.noexcuse4abuse.org She may be reached at: help@noexcuse4abuse.org