Must-arrest policies

Many states now have over-enforcement of domestic violence. Here is a story about how it sometimes works.

Laura entered the emergency room with some trepidation. Her eye was bruised and her head was pounding. When she was finally seen, she told the doctor that Thomas, her husband, had pushed her. They had fought and she had accidentally fallen into a lamp. It had bruised her eye and she had a migraine. Thomas and Laura had been married for four years and he had never been violent before. Within moments, the doctor told Laura that under California's mandatory reporting law, he would have to call the police.

Laura was horrified. "What about what I want to do?" she asked. "What about my rights?" Laura explained that she did not want Thomas arrested; he was a good man and a fine provider, and she was not worried that his behavior was or would become dangerous. The doctor had no choice - he would be held personally liable if he failed to report the abuse.

The doctor called the police. Laura warned Thomas by phone that the police were coming. Laura arrived home just as the police showed up. She tried to convince the officers not to arrest him - to no avail. The officers informed her that the Los Angeles Police Department has a mandatory arrest policy. If the officers have "probable cause" to suspect that domestic violence has occurred, they must arrest the suspect regardless of the woman's objections or protestations.

Thomas spent three days in jail. Having been arrested on Friday night, he missed work on Monday and worries that he may be fired if he is convicted of a crime. He also awaits prosecution on a domestic violence charge.

Laura has spoken with the prosecutor and has begged her not to prosecute. She has explained that Thomas may lose his job and that their daughter, who suffers from multiple disabilities, relies on both parents for her care. Thomas's employer-provided health insurance covers their daughter's health care.

The prosecutor does not listen. She informs Laura that the Los Angeles City Attorney's office adheres to a no-drop prosecution policy. The prosecutor assigned to the case will proceed against Thomas regardless of Laura's objections or her reluctance to testify. If she refuses to testify, the City Attorney's office will subpoena her. And, to prove the case against Thomas, the prosecutor will use the statements Laura made to the emergency room doctor.

This is from a 1999 Harvard Law Review article that urges reconsideration of the feminist position in favor of mandatory interventions in domestic violence cases.