Criminal Justice System Response to Domestic Violence

Last updated May 2010

Duties of Police Officers 

Legislation should state that police and other law enforcement officials are obligated to pursue all cases of domestic violence, regardless of the level or form of violence. See: Report of the Intergovernmental Expert Group Meeting to review and update the Model Strategies and Practical Measures on the Elimination of Violence against Women in the Field of Crime Prevention and Criminal Justice, Bangkok, 23-25 March 2009, III 15 (b).

Legislation should require the police to give domestic violence calls the same priority as other calls involving violence. See: law of Georgia. For information on assigning priority levels to domestic violence calls, see: The St. Paul Blueprint for Safety, p. 21.

Legislation should require the police to perform certain duties as part of the investigative process in domestic violence calls, including interviewing parties separately, recording the complaint, filing a report, and advising the complainant/survivor of her rights. For example, the law of Brazil mandates a police protocol which includes a provision requiring police to determine the existence of prior complaints of violence against the aggressor:

  • “… – command the identification of the aggressor and the addition of the aggressor’s criminal record to the judicial proceedings, indicating the existence of arrest warrant or record of other police occurrences against him…” Article 12, VI
  • Legislation should specifically preclude the use of warnings to violent offenders as a part of the police. Warnings do not promote offender accountability or communicate a message of zero tolerance for violence.
  • Legislation should require that police officials develop policies for implementation of domestic violence laws that provide specific directives to front-line law enforcement.  For example, the complete and accurate documentation of domestic violence incidents through police reports is an essential component for offender accountability. See:The St. Paul Blueprint for Safety, p. 31.

PROMISING PRACTICE:

  • The law of Namibia, which requires the Inspector-General to issue specific directives on the duties of police officers, report to the responsible Minister on both the directives and the training provided to the police, and also to keep statistics from reports on domestic violence reports and to forward them to the relevant Minister. Part IV 26 and 27

Legislators should ensure that specialized police units are created for the investigation and prosecution of domestic violence cases. These units should be women-only units so that complainant/survivors are more likely to seek assistance. See Spain’s law; and the Handbook on Effective police responses to violence against women (2010) p. 39.

PROMISING PRACTICE: 

  • The law of Zimbabwe provides that “where a complainant so desires, the statement of the nature of the domestic violence shall be taken by a police officer of the same sex as that of the complainant.” Section 5
  • Legislation should require police to develop a safety plan for complainant/survivors. See: Handbook on Effective police responses to violence against women (2010), p. 74-75.
  • Legislation should provide sanctions for police who fail to implement the provisions.  See: law of Albania, Article 8.

The UN Model Framework provides a detailed list of police duties within the context of complainant/survivor rights (III A) and a list of minimum requirements for a police report in paragraph 23.

The US Model Code recommends important provisions for the duties of a police officer, including confiscating any weapon involved, assisting the complainant in removing personal effects, and “taking the action necessary to provide for the safety of the victim and any family or household member.”  See: Family Violence:  A Model State Code, Sec 204.See also: Vision, Innovation and Professionalism in Policing Violence Against Women and Children (2003), a Council of Europe training book for police.

PROMISING PRACTICE:

  • The law of Brazil also requires the police to keep the complainant/survivor informed “of the procedural acts related to the aggressor, especially those related to entry and exit from prison…” Article 21. See UN Handbook, 3.8.1.

CASE STUDY:  The Duluth Pocket Card, a laminated pocket card which was developed by police in Duluth, Minnesota, with protocol to document domestic violence incidents:

Card 1
Duluth Police Department Report Writing Checklist
             Domestic Assault Arrest/Incident
 
Document the following:
1.   Time of arrival and incident
2.   Relevant 911 information
3.   Immediate statements of either party
4.   Interview all parties and witnesses documenting:
(a) relationship of parties involved/witnesses
(b) name, address, phone - work/home, employer, etc
(c) individuals’ accounts of events
(d) when and how did violence start                                                                                                      
(e) officer observation related to account of events
(f)   injuries, including those not visible
        (e.g. sexual assault, strangulation)
(g) emotional state/demeanor
(h)alcohol or drug impairment
5.   Evidence collected (e.g., pictures, statements, weapons)
6.   Children present, involvement in incident, general
      welfare. Children not present, but reside at the residence                
7.   Where suspect has lived during past 7 years
8.   Medical help offered or used, facility, medical release
      obtained 
9.   Rationale for arrest or non-arrest decisions
10. Summarize actions (e.g., arrest, non-arrest,
      attempts to locate, transport, referrals, victim
      notification, seizing firearms) 
11. Existence of OFP, probation, warrants, prior convictions            
12. Victim’s responses to risk questions including your                   
observations of their responses             
13. Names and phone numbers of 2 people who can always                                                                                                    
      reach victim (#s not to be included in report)                                                                                     
Reverse side of card
 
Risk Questions
1.   Do you think he/she will seriously injure or kill you or your children? What makes you think so? What makes you think not?
2.       How frequently and seriously does he/she intimidate, threaten, or assault you?
3.   Describe most frightening event/worst incidence of violence involving him/her.
Victim Notification
§         Provide victim with Crime Victim Information Card (including ICR number and officer’s name)
§         Advise of services of local domestic violence shelter
§         Advise victim (if there was an arrest) that a volunteer advocate will be coming to her home soon to provide information and support
§         If victim has a phone, inform her that the advocate will attempt to call her before coming.
§         Contact the battered women’s shelter as soon as possible and advise them of the arrest – 728-6481.
Self-Defense Definition
Reasonable force used by any person in resisting or aiding another to resist or prevent bodily injury that appears imminent. Reasonable force to defend oneself does not include seeking revenge or punishing the other party.
Predominant Aggressor Consideration
Intent of policy – to protect victims from ongoing abuse
Compare the following:
  • Severity of their injuries and their fear (incident)
  • Use of force and intimidation
  • Prior domestic abuse by either party
  • Likelihood of either party to commit domestic abuse in the near future.
 
 
See: Duluth Police Pocket Card, StopVAW, The Advocates for Human Rights.

Legislation should require the police to inform the complainant/survivor of her rights and options under the law. For example, the law of India requires a police officer to inform the victim of important rights:

  • 5. Duties of police officers, service providers and Magistrate.-A police officer, Protection Officer, service provider or Magistrate who has received a complaint of domestic violence or is otherwise present at the place of an incident of domestic violence or when the incident of domestic violence is reported to him, shall inform the aggrieved person-
    • (a) of her right to make an application for obtaining a relief by way of a protection order, an order for monetary relief, a custody order, a residence order, a compensation order or more than one such order under this Act;
    • (b) of the availability of services of service providers;
    • (c) of the availability of services of the Protection Officers;
    • (d) of her right to free legal services under the Legal Services Authorities Act, 1987 (39 of 1987);
    • (e) of her right to file a complaint under section 498A of the Indian Penal Code (45 of 1860), wherever relevant:
  • Provided that nothing in this Act shall be construed in any manner as to relieve a police officer from his duty to proceed in accordance with law upon receipt of information as to the commission of a cognizable offence. Ch. III, 5.

PROMISING PRACTICE: 

  • Family Violence: A Model State Code, Section 204, describes a comprehensive written notice that police should be required to give to a complainant/survivor for later review. The Commentary to the Model State Code notes that “An officer may be the first to inform a victim that there are legal and community resources available to assist him or her.  Written notice is required because a victim may not be able to recall the particulars of such detailed information given verbally, particularly because the information is transmitted at a time of crisis and turmoil. This written menu of options…permits a victim to study and consider these options after the crisis.”
  • The notice describes the options which a victim has:  filing criminal charges, seeking an order for protection, being taken to safety, obtaining counseling, etc.  The notice contains a detailed list of the optional contents for an order for protection.  This would be of great assistance to a complainant/survivor who may not be familiar with the purpose of an order for protection.  When a complainant/survivor is given a written notice and description of these options, it enables her to consider her options and to decide what is best for her safety and for the safety of her family.

See:  Domestic Violence Legislation and its Implementation:  An Analysis for ASEAN Countries Based on International Standards and Good Practices, UNIFEM, June 2009, which states that  “Information on rights empowers complainants in negotiating settlements and also allows them to make informed decisions on the legal options that they may want to pursue.” page 22

PROMISING PRACTICE: 

  • Ellen Pence, an expert on the Coordinated Community Response and many other aspects of domestic violence law and policy, recommends that police be trained to expect to see families in conflict numerous times, and to expect that a complainant/survivor may not accept their offer of help the first, second, or even third time.  Police must be trained to respect the complainant/survivor’s wishes, and to assist her as she requests.  See:  The St. Paul Blueprint for Safety.

See: Council of Europe, The Protection of Women against Violence Recommendation Rec(2002)5 #29.

 

Lethality or risk assessments 

Legislation should mandate that police investigate the level of risk to domestic violence victims in each case of domestic violence.  For additional risk assessment factors, see: Assessing Risk Factors for Intimate Partner Homicide (2003). Other agencies of the criminal justice system, including prosecutors and judges, should also assess the level of risk to victims. See section on Lethality and risk assessments and Duties of prosecutors and Duties of judiciary.

 

Mediation or assisted alternative dispute resolution

Legislation should specifically preclude police from offering mediation or assisted alternative dispute resolution services to parties. Police should not attempt to improve relations in the family by offering these services or by mediating a dispute.  See: UN Handbook 3.9.1. See section under Duties of judiciary on Mediation or assisted alternative dispute resolution.

 

Determining the predominant aggressoR

Legislation should require the police to evaluate each claim of violence separately in situations where both parties claim violence. The police must look beyond the visual evidence and consider the context of the act of violence by identifying controlling behavior in the predominant aggressor and fear in the victim.  

 Police must be able to recognize the tactics of power and control. They must consider such issues as: the severity of injuries inflicted by both parties, the difference in size and weight of the parties, the demeanor of the parties, any prior complaints of violence, claims of self-defense and the likelihood of further injury to a party.

The determination of the predominant aggressor, and the reasons for that determination, must be included in the police report. Otherwise, offenders will successfully manipulate the system and victims will not be protected. As a result, victims may not contact police the next time violence occurs. (See the Duluth Pocket Card Case Study, above.)

If the predominant aggressor is misidentified, there could be important legal consequences for the victim, such as the denial of custody of children, of housing rights and of immigration rights. Additionally, without being identified as a victim, a person would not be eligible for shelter or other forms of aid mandated by statute.

The Criminal Domestic Violence law of South Carolina, USA, includes the following provisions on determining the primary aggressor:

  • (D) If a law enforcement officer receives conflicting complaints of domestic or family violence from two or more household members involving an incident of domestic or family violence, the officer must evaluate each complaint separately to determine who was the primary aggressor. If the officer determines that one person was the primary physical aggressor, the officer must not arrest the other person accused of having committed domestic or family violence. In determining whether a person is the primary aggressor, the officer must consider the following factors and any other factors he considers relevant: 
    • (1) prior complaints of domestic or family violence;
    • (2) the relative severity of the injuries inflicted on each person taking into account injuries alleged which may not be easily visible at the time of the investigation;
    • (3) the likelihood of future injury to each person;
    • (4) whether one of the persons acted in self-defense; and
    • (5) household member accounts regarding the history of domestic violence.
  • (E) A law enforcement officer must not threaten, suggest, or otherwise indicate the possible arrest of all parties to discourage a party's requests for intervention by law enforcement.
  • (F) A law enforcement officer who arrests two or more persons for a crime involving domestic or family violence must include the grounds for arresting both parties in the written incident report, and must include a statement in the report that the officer attempted to determine which party was the primary aggressor pursuant to this section and was unable to make a determination based upon the evidence available at the time of the arrest.
  • (G) When two or more household members are charged with a crime involving domestic or family violence arising from the same incident and the court finds that one party was the primary aggressor pursuant to this section, the court, if appropriate, may dismiss charges against the other party or parties. Section 16-25-70

See: Family Violence:  A Model State Code Sec 205 (B); and Determining the Predominant Aggressor, StopVAW, The Advocates for Human Rights.

 

Probable cause standard of arrest

Drafters should consider a probable cause standard of arrest, which allows police to arrest and detain an offender if they determine that there is probable cause that a crime has occurred even if they did not witness the offence.  See: Minnesota 518B.01 subdv. 14(d)(2)(e) and law of South Carolina, Sec. 16-25-70 (A). See: Law Enforcement Reform Efforts, StopVAW, The Advocates for Human Rights.