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Barbara
Fedders,
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 |
