Laws that mean well sometimes have unintended consequences
Mandatory arrest laws ostensibly exist to protect victims of violence. They are designed to send the message that domestic violence is intolerable and will result in immediate consequences. While mandatory arrest laws seem to have been born of good intentions, in practice, they often have negative results. They amplify the existing systemic racism in the criminal justice system, and they can also negatively impact the victims of crimes in a variety of ways.
These laws don’t actually keep survivors safer. Instead, they create many incentives that actually discourage survivors from reporting abuse. I also oppose these laws for a purely practical reason: they fail to effectively interfere in the cycle of violence.
Survivors don’t always want their abuser arrested
People who are in intimate partnerships with their abusers may have complicated feelings. They don’t want to be harmed any more, but they may also not want any harm to come to their abuser. This may cause them to change their minds about wanting their abuser arrested if that was even something that they wanted in the first place.
The pro-mandatory arrest argument is that abusers should be arrested anyway because domestic violence is cyclical. They are likely to repeat the abuse, and the abuse is likely to escalate in the future. Some mandatory arrest laws also include a “no-drop” policy, which prevents charges against the abuser from being dropped if the survivor decides not to pursue them later on.
Mandatory arrests take the power of choice away from the survivor
Someone who has been in a manipulative, controlling relationship or who has been subjected to physical or sexual abuse may already have been traumatized by circumstances that have stripped them of their agency and autonomy. Being deprived of choices during the legal response to an abuse situation can create additional trauma for the survivor.
The survivor may also be physically dependent upon their abuser. If two incomes are necessary to make ends meet in a household, and the abuser goes to jail, the survivor may end up behind on bills or even homeless. Because of all of these factors, the knowledge that the abuser is guaranteed to be arrested may prevent victims from seeking help from law enforcement.
Survivors don’t want to be arrested
Another argument against mandatory arrest is the fact that survivors will sometimes become violent or aggressive themselves in their efforts to defend themselves against the abuse. While most reasonable people would find some degree of this kind of reactive violence to be morally justifiable, existing social stereotypes about overly emotional or “hysterical” women can create social and legal disadvantages for survivors in these situations.
As Mary Anne Franks explains in her discussion of “Stand Your Ground” vs. “Battered Women’s Syndrome” defenses to charges of violence, the social and legal responses to people who use violence in self-defense are gendered.
Men are celebrated and encouraged when they use violence in self-defense, whereas women are shamed
A woman is more likely to be judged as “crazy” or “out-of-control” if she resorts to the use of force, regardless of the circumstances. If they choose to defend themselves, mandatory arrest laws may lead to the arrest of the survivor. Not only can this be deeply traumatic, it can also have other consequences.
Because of stereotypes about women who use violence, it may also be more difficult for a woman in this situation to defend herself in court. If the survivor and the abuser have children together, and both the survivor and the abuser go to jail, custody of their children may go to the state. The survivor may lose their job or housing as a result of their arrest, and be unable to support themselves or their children independent of their abuser. They may end up with a violent crime on their criminal record, limiting their future options for things like housing, education, employment, or parental rights, even though they were acting in self-defense.
Mandatory arrest laws are racist
People of color, specifically the Black community, have a complicated relationship with the justice system in general. Some argue that mandatory arrest laws protect all women equally because all women suffer gendered discrimination regardless of race. This argument ignores the fact that the criminal justice system does not provide as much protection for Black women as it does for white women.
When a Black woman makes allegations of abuse, she is less likely to be believed by police, and even less likely if she is poor, pregnant, or an addict. If she responds to the abuse with physical force, she is more likely to be judged as the aggressor, and thus more likely to be arrested herself. The consequences of being arrested may also be more severe for a Black woman, as she may be treated with less fairness by the criminal justice system.
Black men are more likely than white men to be taken seriously as the perpetrators of violent crimes, especially if the victim is a white woman. A Black man is more likely to be killed by the police in a chaotic situation and is more likely to face severe legal consequences for a violent crime than a white man. When a Black woman calls the police, she may feel torn between her need to escape interpersonal violence and her need to protect her family and community from police violence.
Mandatory arrest laws don’t work
While science has shown that mandatory arrest laws reduce recidivism in the short term, this is deceptive. Domestic violence is a systemic problem at both social and political levels, and these policies fail to address the root causes of the problem.
The laws don’t address the cultural history of men holding a socially dominant position over women, or the resulting sense of entitlement that men may have to power over women’s bodies or authority over women’s lives. They don’t address the social stigma surrounding being a survivor of violence. They also don’t provide survivors with the resources they need to maintain independence. Instead, these laws may lead to situations where the survivor becomes more dependent upon their abuser.
These laws may also cause survivors to become entangled in a criminal justice or family court system that does not effectively address their needs. They uphold existing structures of patriarchy and white supremacy, re-enforcing a cultural attitude towards survivors of violence which is both painfully misinformed and counter-productively paternalistic.
Aside from being morally problematic, mandatory arrest laws simply don’t work.
Originally published on medium.com on June 26th, 2021.
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