Excerpted from: Barbara Fedders, Lobbying for Mandatory-arrest Policies: Race, Class, and the Politics Of the Battered Women's Movement, 23 New York University Review of Law and Social Change 281, 291-296 (1997)(89 footnotes)
Battered women's advocates rest their support for mandatory arrest on the deterrence of batterers and empowerment of women they believe the policy can achieve. Subsequent criminological studies, however, suggest that any beneficial effects produced by mandatory arrest may not be universal across race and class.
To test the validity of the results of the 1984 Minneapolis study, which found arrest to be the most effective police response to a domestic violence incident, the Department of Justice in 1990 funded replication studies in six cities--Atlanta, GA., Charlotte, NC., Colorado Springs, CO., Omaha, NE., Milwaukee, WI., and Miami, FL. These studies strongly suggest that, although arrest alone may deter some men from continuing their abuse, when a battering suspect is unemployed, he tends to be more violent after an arrest. The Minneapolis study had not revealed that employment status altered the specific deterrence effect of arrest.
Criminologist Lawrence Sherman, an author of the Minneapolis study, argued that that study had focused on too small a sample of batterers to be able to produce useful information for other jurisdictions considering the effectiveness of arrest. He also noted that the study did not consider that arrested men may have been least likely to repeat their violence against the same women because of a displacement, rather than a deterrent, effect; that is, the researchers failed to investigate whether these men had simply gone on to batter new victims.
Some police statistics seem to support the contention that mandatory-arrest policies prevent incidences of domestic violence. Following the enactment of Connecticut's mandatory arrest law in October 1986, for example, the Hartford Police Department reported a 28% drop in the number of calls for assistance in domestic violence incidents. However, such statistics do not prove conclusively that mandatory-arrest policies have a deterrence effect. Instead, they may indicate a greater hesitation on the part of battered women to report incidents of violence to the police.
After an incident of domestic violence, for example, a woman might wish to call the police and have them come to her home. She might reason that a police officer could diffuse an explosive situation or frighten her batterer into ceasing his abuse. She may engage in a careful cost-benefit analysis and determine that, while police presence would be useful, an arrest would not. A woman may be dependent on the income of her batterer, for example, or she may not want their children to witness their father's arrest. Such a woman, if aware of a mandatory-arrest policy in her jurisdiction, would likely refrain from calling the police at all, and would thereby be deprived of a potentially useful tool in her struggle to end the violence in her life.
While battered women's advocates may dismiss these concerns, they are nonetheless compelling to many battered women, who might well perceive a mandatory-arrest policy as paternalistic. While such concerns cannot be precisely correlated with the race and class of a woman or her batterer, they do indicate that women have individualized responses to the problem of domestic violence that are not respected by mandatory-arrest policies.
Advocates argue that mandatory arrest symbolizes the support of the state to a battered woman. However, for significant numbers of women, the state is not a source of comfort but a cause for mistrust or anger. Women in relationships with Black men, for example, confront a legacy of police brutality and disproportionately harsh prosecutorial treatment of Black arrestees. Particularly when these women are also Black and have grown up in a community with an excessive police presence, they may view the police with great suspicion and may not find the arrest of their batterer to embody support for them. Thus, any feelings of relief that an arrest of their batterers might otherwise bring may be trumped by feelings of guilt, fear and concern about the fate of their partners in the criminal justice system.
Some advocates have attempted to address the concerns about racism in the criminal justice system by arguing that a mandatory-arrest policy leads to less police racism than does a discretionary-arrest regime, where there is more room for the prejudices of individual officers to operate. However, even in a mandatory-arrest regime, the police still must make probable-cause determinations about whether violence has occurred; probable cause is not a colorblind calculation. That is, police racism and classism may operate to make them more incredulous of the testimonies of women of color and low-income women than of white and middle-class women, such that what is in fact a situation mandating arrest may not be perceived as such, and vice versa. The argument that police racism is less a factor in mandatory-than a discretionary-arrest jurisdiction is therefore incomplete.
Illustrating the particular difficulties posed by the intersection of race and sex, many Black women active in domestic violence research, policy advocacy, and organizing have warned battered women against allowing themselves to be "guilt-tripped" by abusive men who accuse them of racism and betrayal for reporting them to the police. One scholar argues, "We have paid our dues, and black men must be held responsible for every injury they cause." An activist asserts: "It's a copout for brothers to use the issue of racism to make us feel bad."
Women must have the right to receive effective police assistance when they are suffering abuse, no matter from whom. This assertion is particularly important for Black women, who face a historic presumption by police that their race predisposes them to enjoy violence. My argument is not that arrest for domestic violence in communities of color is always an inappropriate response. Rather, I am arguing that a mandatory-arrest policy presents unique problems for women of color and poor women that have been largely overlooked by mandatory-arrest advocates.
During congressional hearings on the Violence Against Women Act (VAWA), for example, feminist prosecutors of domestic violence cases, domestic violence policy advocates, and psychiatrists lobbied for language that would indicate federal approval of mandatory arrest. In their lobbying, the overwhelmingly white and middle-class advocates discussed the issues of class and race only to argue that they were insignificant factors in the formulation of policy. Sarah Buel missed the point when she argued that law enforcement officials consider race only to excuse the conduct of abusive men:
I would encourage that a mandatory component of [training issues included in the bill] be on multicultural and antiracism issues. I am constantly hearing from police and D.A.'s and judges, whenever the defendant is of color, that somehow that is relevant to the abuse . . . [They do this ] because of the denial and because of the desire to distance themselves from the abuser, that if they can say this is part of the Latino culture or this is something that foreigners do, because he is from Iran, that this is how this man behaves, and I can point out nine Italians and nine Irish, nine people from our community who they view as their children, their friends, and they do not want to see them in the same context. [A]buse, as others have testified, cuts across all race and class lines."
Buel's comments dismissed the fact that while domestic violence may be universal, its causes and treatment may not.
Battered women's advocates have not demanded further studies of possible correlations between race, class, and other individual characteristics and the rate at which domestic violence occurs. One African-American activist and scholar describes an encounter with the Los Angeles Police Department in which a department spokesperson told her that battered women's advocates strongly opposed release of any statistics that would indicate the number of domestic violence incidents in communities of racial minorities.
The reason for this perspective by the battered women's movement is undoubtedly its legitimate concern about stereotypes. Linking a batterer's race and his propensity to be violent, or a woman's race and the length of time she spends with her batterer, may perpetuate racist stereotypes that men of color are more violent than white men, and that women of color are masochistic. The numerous battered women's advocates with experience in the anti-rape movement were criticized for insensitivity to the historically racist use of rape charges, and undoubtedly resolved not to leave themselves open to similar criticisms. Advocates neatly avoid this potentially dangerous political position by virtue of their oft-stated belief that domestic violence is universal, and that race and class differences affect neither the causes of nor the remedies for domestic violence. Because of this view, they argue that studying possible correlations between particular races and classes and domestic violence before enacting law enforcement remedies is not worthwhile.
For similar reasons, the battered women's movement has failed to survey the broad spectrum of battered women to determine whether mandatory-arrest laws and other remedial measures actually reflect their needs and interests. Instead, without having found out from the women themselves what they want, the movement has spoken on behalf of all of them
Source: Race, Racism and the Law: http://academic.udayton.edu/race/