By now it’s no secret that restraining orders based on claims of domestic violence have become commonplace. Countless family law attorneys have publicly bemoaned the practice as a tactic in divorce and child custody matters.
And it’s no surprise that it’s overwhelmingly mothers who employ it. Given the fact that the public and, more importantly the police, are taught that men are rarely DV victims and almost always perpetrators, judges readily issue TROs against them.
In custody cases, that means fathers are removed from their homes, separated from their children and all contact is prohibited. Once that’s accomplished, granting primary custody to the mother becomes even easier than it would otherwise be. Mothers receive about 84% of primary custody in the United States; fathers get sole custody less than 10% of the time.
I’ve reported before on the Maine training program for police officers in DV cases. It usually (although not invariably) referred to perpetrators using masculine pronouns and victims using feminine ones.
Far worse, of its eight hypothetical cases, all concluded that the proper thing for the officer to do was to arrest the man. That was true even in the case in which 100% of the information the officer was confronted with indicated that it was the woman, not the man, who had committed domestic battery resulting in injury. Still, the “right” answer according to the training materials was to arrest the man.
That’s what police are taught even though literally hundreds of studies of domestic violence done over 35 years show that women are as likely as men to commit DV. That’s also true despite the fact that, in the 50% of incidents in which violence is mutual, women hit first in 70%.
In the early 90s, mandatory arrest laws came into vogue for allegations of domestic violence. (Oddly, the linked to article says that 14 states plus the District of Columbia have laws mandating arrest; the website SAVE says 40 states do.) That is, faced with a domestic violence incident, police have no legal choice but to arrest one of the parties. Given the fact that police are taught, in some cases invariably, to arrest men as the presumptive “primary aggressor” in DV cases, that means that mandatory arrest laws overwhelmingly result in men going to jail with restraining orders issued against them.
That result is only increased by the fact that men and women tend to see similar DV incidents differently. The study of domestic violence by the government of Scotland found women (54%) to be six times as likely as men (9%) to view physical abuse as a crime. And women (37%) are six times as likely as men (6%) to view psychological abuse as a crime.
In short, it is women who tend to make allegations of domestic violence and men who tend to get arrested for it despite the fact that women more often initiate a violent incident and engage in domestic violence as often as men.
Now this study, done at the behest of the National Bureau of Economic Research, shows that those state laws mandating arrest in DV cases, far from diminishing domestic violence, in fact make it more harmful.
That’s because domestic violence is a crime that is usually reported by the victim, not by a third party. And when the victim knows that the state he/she lives in has a mandatory arrest policy, that person often tends to not report an incident so that the perpetrator won’t go to jail.
That in turn results in greater rates of injury and death than would otherwise be the case. The NBER paper claims that some 600 lives would be saved if mandatory arrest laws were scrapped. That sounds hugely inflated to me given the fact that there are about 1,600 deaths from intimate partner violence each year according to the U.S. Department of Justice crime figures.
But whatever the case, it looks like mandatory arrest laws, already a blight on the concept of due process of law and the requirement of probable cause to arrest have still another flaw – they have the opposite result from what they intend.