Coordinated Community Responses to Domestic Violence in Six Communities: Beyond the Justice System. Arrest and Prosecution Policies


Most of the jurisdictions we visited had a mandatory or preferred arrest policy for domestic violence. These policies require police officers to arrest a perpetrator under certain conditions. In Minnesota, for example, state law gives localities the option of adopting a mandatory arrest policy. State law also established standards for "probable cause" arrests. Prior tothese laws, domestic violence offenses were handled as misdemeanors--requiring a citizen's arrest which placed the burden on the victim, or as felonies--requiring that the arresting officer be present at the assault itself and that the assault be severe enough to warrant a felony charge. In a number of jurisdictions, misdemeanors require a citizen's arrest unless a police officer witnesses the crime. Thus, allowing police to arrest on probable cause has greatly improved the law enforcement response.

The level of charges in domestic violence cases varied across the sites. In California, for example, the statute is more harsh for domestic violence than for other types of assaults. Domestic violence assaults are felonies by virtue of being committed against an intimate partner, as opposed to other assaults which are misdemeanors. Recently, California further strengthened its law to include same sex couples in the domestic violence felony assault law. This is especially helpful in San Francisco where there is a large number of gay and lesbian couples. Prior to this change, the victim in a same sex domestic violence case would have to make a citizen's arrest. In Kansas City, on the other hand, most domestic violence cases are a violation of a city ordinance and prosecuted in Municipal Court. Recently, however, there has been a push to increase the number of domestic violence cases charged as misdemeanors or felonies.

Many prosecutors in this study have adopted pro-prosecution or "victimless" prosecution policies. In these cases, the prosecution will proceed with a case if there is sufficient evidence, regardless of whether or not the victim cooperates. Typically, decisions about whether to prosecute without the victim's cooperation are made an a case-by-case basis. Because investigations of domestic violence cases have improved, prosecutors are more likely now to have sufficient evidence for the case even if the victim is unwilling to testify. Prosecutors often work closely with the victim to try to convince her to cooperate. A number of prosecutors will subpoena a reluctant victim and some will even issue a body attachment (i.e., warrant for her arrest).