"The Family Protection and Domestic Violence Intervention Act of 1994: Ten Years Later,"
Lawyers Manual on Domestic Violence: Representing the Victim, 4th and 5th editions
Published by the Supreme Court of the State of New York, First Dep't. 2005, and 2006
New York State's Family Protection and Domestic Violence Intervention Act
of 1994 (DVIA) made radical revisions to law enforcement's approach to
domestic violence incidents1
. The DVIA, which established mandatory arrests in
domestic violence cases, requires the police to make warrantless arrests when a
duly served order of protection has been violated or when probable cause exists to
believe that either a felony or misdemeanor has been committed2
. Other provisions,
developed after extensive hearings held throughout New York State, provided
for training, domestic incident reporting, and a centralized state-wide registry of
protective orders to assist police in enforcing violations of protective orders.
The use of mandatory arrest generated concern as dual arrests and even
retaliatory arrests emerged as an unintended consequence of the DVIA. Further
questions arose as to the efficacy of mandatory arrest as a response to domestic
violence. One critic of mandatory arrests has argued ". . .that such policies as
mandatory arrest, prosecution, and reporting, which have become standard legal
fare in the fight against domestic violence. . . categorically ignore the battered
This same critic has further contended that ". . . these
policies fail to provide battered women with choices about their remedies."4
Before deciding whether or not mandatory arrest is an essential and
appropriate response to domestic violence, it would be wise to consider the
historical failure to address this serious public health and safety issue. As a result
of law enforcement's failure to arrest and prosecute perpetrators of domestic
violence in the past, criminal behavior appeared to be condoned or ignored by the
community. This discussion will address how mandatory arrest and the related
provisions of the DVIA provide an informed response to the concerns of battered
women, law enforcement, and the courts. This discussion will also address how
mandatory arrest has made significant inroads in reducing incidents of domestic
violence by specifically reducing recidivism, when arrest is combined with the use
of an order of protection. The Primary Aggressor Amendment as well as the
resulting training for law enforcement has reduced the risk that battered women
would be revictimized by the criminal justice system.
Domestic Violence Intervention Act of 1994
Combating domestic violence requires a collaborative effort among law
enforcement, domestic violence advocates, and the courts, as well as public
education and training of law enforcement personnel. The DVIA represents a
comprehensive approach on the part of the Legislature, law enforcement and
domestic violence advocates to criminalize domestic violence and provide for
the safety of battered women. The DVIA also provides concurrent jurisdiction
over family offenses, by providing battered women with access to the remedies
from both Family and Criminal Courts. A battered woman may now elect to
have her case heard in Family Court, which hears not only orders of protection
but also issues of custody, visitation, child support, and violations of orders of
protection, at the same time a criminal prosecution is being pursued. The new
domestic violence legislation also provides Family Court judges with the
discretion to transfer cases to the district attorney for prosecution5
provisions, while not foolproof, increase options for battered women.
In New York, Bruno v Codd
paved the way for the current reform domestic
. This case was brought in part as a response to ". . . [the]
frequent failure of officers of the New York City Police Department to respond
to requests for safeguarding made by . . . a battered or threatened wife, . . .
because of reluctance on the part of police to intervene in what they reflexively
characterized as 'domestic disputes' rather than criminal offenses."7
The argument that a mandated criminal response fails to empower battered
women does not consider the conditions that existed prior to mandatory arrest and
to a certain extent continue into the present, as well as the inclusive remedies in the
DVIA. The remedies include not only mandatory arrest, but also concurrent
jurisdiction over family offenses, training, collaboration and institutionalized
tracking of domestic violence incidents in the form of the Domestic Incident Report.
Following the enactment of the DVIA, the New York State Office of
Domestic Violence Prevention conducted an extensive state-wide study of
recidivism and the effectiveness of mandatory arrest over an eighteen month
. This study reviewed over 13,000 incident reports from a total of eight
sites across New York State, from communities ranging in size from 35,000 to
222,000, as well as two precincts from New York City. They identified 8,700
suspects from these 13,000 incidents, who were followed for a period of
eighteen months. The primary source of information was domestic incident
reports; however, the study also included a survey of police, prosecutors and
Despite the phrase "mandatory arrest," in fact, not all of the incidents
surveyed led to arrest. In instances where no visible bruising was apparent or
where the suspect had fled the scene suspects were often not arrested. Incidents
where only hitting and kicking took place had a relatively low rate of arrest,
raising questions about the New York State definition of physical injury in
misdemeanor assault cases. For the purposes of this study, these cases were
classified as "quasi-mandatory arrest,"9
. however erroneously that term may be
used. Where there were more visible injuries and aggressive behavior, researchers
termed these incidents as "aggressive mandatory arrest incidents."10
surprisingly, the research concluded that police were more likely to arrest the
suspect in "aggressive mandatory arrest incidents." However, despite the fact
that the suspects in "aggressive mandatory arrest incidents" were more likely to
be arrested, research revealed that the criminal penalties were relatively light.
However, the researchers were surprised to find that aggressive mandatory
arrest incidents that resulted in arrests had a lower rate of recidivism. This was
true even though arrest rates differed in the sites studied. Finding that the initial
arrest rate ranged from 24 to 57%, the rate of recidivism was considerably lower
at 12 to 27%. In the more aggressive initial incidents, the recidivism rate was as
low as 11 to 20%. The report concluded ". . .that mandatory arrest along with the
issuance of an order of protection dramatically affected the rate of recidivism."11
These findings were ". . .notable, especially given the relatively mild
punishment [meted out] to those arrested and the infrequent use of probation. The
impact of arrest on recidivism might be even greater if a conviction was routinely
followed by strict supervision and incarceration upon recidivism."12
went on to recommend the extension of the mandatory arrest provisions. This was
subsequently enacted by the Legislature, extending mandatory arrest until 200513
It is important to see mandatory arrest not as an isolated phenomenon but as a tool
that triggers the involvement of the criminal justice system. While mandatory
arrest is not without problems, it can also be an important safety measure when
combined with appropriate access to the criminal and family court systems.
Primary Aggressor Amendment
An increase in incidents in which the victim of domestic violence is arrested
emerged as an unintended consequence of the New York State Legislature's
passage of the Family Protection and Domestic Violence Act of 199414
The real possibility that the victim will be arrested is disturbing for a number
of reasons. A wrongful arrest helps create a climate in which victims become
reluctant to call the police again15
. In terms of community safety, the arrest of the
wrong party means that the violence will continue, creating an atmosphere in
which entire families become at risk for greater and greater injury.
As more and more states passed mandatory arrest laws in an effort to
combat domestic violence, many found it essential to adopt primary aggressor
laws. Among those states were Washington, Rhode Island, Wisconsin, South
Dakota, Iowa, Arizona, Nevada, Oregon, Tennessee, Florida and New York16
The Primary Physical Aggressor Law, which modified Section 140.10 (c) of
the Criminal Procedure Law, provided essential guidelines that helped arresting
officers and prosecutors determine who was the individual primarily responsible
for the violence17
. The Amendment states in pertinent part:
An officer shall attempt to identify and arrest the primary
physical aggressor after considering: (i) the comparative extent
of any injuries inflicted (ii) whether any such person is
threatening or has threatened future harm against another party
or another family or household member; (iii) whether any such
person has a prior history of domestic violence that the officer
can reasonably ascertain; and (iv) whether any such person acted
defensively to protect himself or herself from injury. The officer
shall evaluate each complaint separately to determine who is the
primary physical aggressor and shall not base the decision to
arrest on the willingness of a person to testify18.
Law enforcement can utilize a number of methods to determine whether
there is a history of domestic violence. One relatively easy way is to check the
central registry of existing orders of protection. Also, the victim may have in her
possession domestic incident reports documenting prior incidents of abuse or
orders of protection - even expired ones. Of course, a few simple questions
directed at the victim, her children, or her neighbors when the batterer is not
present may elicit a detailed account of past violence.
Law enforcement training has been cited as a key factor in reducing victim
arrest and reducing officer bias19
. Training for law enforcement should emphasize
the importance of utilizing all police reports, including past domestic incident
reports and protective orders. Diversity training to promote communication
between officers and complainants is an essential component of both effective
police investigation and response.
Preliminary research into the effects of the primary physical aggressor
legislation on dual arrests has been encouraging. Domestic violence advocates
believe that training of law enforcement on the primary physical aggressor
legislation has helped reduce the rate of dual arrests20
. Application of the primary
aggressor laws were found to have a dramatic effect in Washington, where the
number of arrested victims of domestic violence dropped significantly as a result
of increased police training on domestic violence related issues. In 1985, "six
years after the passage of must-arrest laws, Washington's dual arrest rate -- the
factor used most often to determine whether victims are being wrongfully
arrested -- was only 1.5%."21
Research conducted by the New York State Office
of Domestic Violence Prevention concerning dual arrests was inconclusive as it
took place prior to the enactment of the primary physical aggressor legislation.
Unfortunately, the primary physical aggressor legislation did little to deter
retaliatory arrests, or ". . .exaggerated [and] false complaint[s] by an abuser
usually in retaliation for measures taken by the victim to protect herself or her
These retaliatory arrests appeared to be "partnered with potentially
dangerous and manipulative batterers who are learning how to use the law to
their own advantage."23
However, application of the primary physical aggressor
analysis was found to decrease the likelihood of retaliatory arrest24
The following recent case from a New York court illustrates the problems
that occur when law enforcement personnel do not apply the primary aggressor
analysis in a retaliatory arrest scenario:
Ms. C. was a twenty-six-year-old, Spanish-speaking immigrant.
She had three children ranging in age from three months to eight
years of age. She separated from her spouse who became
increasingly abusive after the baby was born and petitioned for
an order of protection from Family Court. Several weeks later,
her batterer contacted her to see the baby. When Ms. C. arrived
at his home to allow him visitation, she was terrified when he
called the police. When the police arrived Ms. C could not speak
English and was helpless as her boyfriend alleged that she had
thrown the baby down the stairs. The baby was immediately
taken to the hospital emergency room where he was found to be
unharmed. The Administration for Children's Services (ACS)
was contacted and after a thorough investigation they
determined that the boyfriend's allegations were without merit.
However, ACS did believe that Ms. C and her children were in
danger and referred her to a domestic violence shelter.
Unfortunately, the police immediately arrested her and the
Criminal Court judge issued the abuser an order of protection
against Ms. C for himself and their five-week-old baby.
Although Ms. C entered a domestic violence shelter after
arraignment, with her older children from a previous marriage,
she was unable to have any contact with her infant.
An investigation by her attorney, a domestic violence
advocate, revealed that the boyfriend had been convicted of
assaulting his previous girlfriend in the presence of her children,
just three months before Ms. C was arrested. In fact, the father
of Ms. C's youngest child was currently on probation for this
assault and had been ordered to stay away from both his former
wife and her children. Upon learning this information, the
Criminal Court judge amended the batterer's existing order of
protection "to be subject to any Family Court orders of custody
or visitation." Subsequently, this same attorney brought the
father's criminal record to the attention of the Bronx Family
Court judge presiding over Ms. C's petition for custody. The
Family Court judge immediately issued both a protective order
as well as a temporary order of custody of the baby on behalf of
It took many more months before prosecutors agreed to
dismiss the criminal case against Ms. C.25
Application of the primary aggressor standards, by taking note of a
complainant's criminal history and record of protective orders against him, would
have reduced the risk of Ms. C being arrested. Diversity training, an understanding
of cross-cultural and language issues, would also have decreased the likelihood
of her arrest. New developments such as the Integrated Domestic Violence Part
would also have increased the communication between the two court systems.
Domestic violence advocates who encounter situations in which their clients
have been arrested need to determine if they have been subjected to retaliatory
arrests. It is critical to ascertain whether your client recently filed for child
support, an order of protection, or custody and if your client recently separated
from a very controlling batterer who seeks to force her to return to him. These
factors are all indications of a retaliatory arrest.
Advocates in Family Court who represent battered women who are the
target of a retaliatory criminal arrest should collaborate with the criminal defense
attorneys. This communication is critical as the Civil Practice Laws and Rules
utilized in Family Court allow for more extensive pre-trial discovery than the
Criminal Procedure Laws. Further, any statements made in a Family Court
proceeding may be introduced into evidence in the related criminal case.
Therefore, discovery obtained in a civil proceeding that would normally not be
admissible may inadvertently be made available in related criminal proceedings.
To avoid unnecessary disclosure it may be preferable to wait until the criminal
matter is resolved before initiating or proceeding with a Family Court custody
or order of protection hearing.
With the consent of the defense attorney it may be advisable to have your
client speak directly with the assigned Assistant District Attorney while her
attorney is present. However, careful thought should be given to the risks
involved in waiving your client's Fifth Amendment rights by allowing this
meeting to take place26
It is clear that the DVIA has required amendments, continued collaboration,
and involvement on the part of the legislature, community, and domestic
violence advocates. It is not a perfect solution. However, it can be argued that
the existence of such laws has increased the public's perception that domestic
violence is a criminal matter and is unacceptable. Such provisions as concurrent
jurisdiction have given battered women greater access to the remedies they
need. Further evidence suggests that, mandatory arrest, when combined with an
existing order of protection, reduces recidivism. This apparent reduction in
recidivism, combined with DVIA's provisions fostering collaborative partnerships
between law enforcement and victim advocates, training, and tracking of domestic
violence incidents, have been instrumental in the protection of battered women
and their children. Skilled domestic violence advocacy requires careful history
taking, use of pre-trial discovery as well as timely collaboration with counselors
and the criminal bar.
Laws of 1994, ch 222.
See Criminal Procedure Law SS 140.10.
Linda Mills, Commentary: Killing Her Softly: Intimate Abuse and the
Violence of State Intervention, 113 Harv L Rev 550, 555 (1999).
Id. at 556.
Family Court Act SS 813 (c).
Bruno v Codd, 47 NY2d 582 (1979).
Id. at 589; see also Thurman v City of Torrington, 595 F Supp 1521 (1984).
New York State Office of Domestic Violence Prevention, Evaluation of
DVIA Mandatory Arrest Provisions: Final Report,
Id. at 13.
Id. at 24.
Id. at 24.
Id. at 24.
Laws of 2003, ch 303.
Laws of 2003, ch 222 (Legislative Memoranda).
Daniel G. Saunders, The Tendency to Arrest Victims of Domestic Violence:
A Preliminary Analysis of Officer Characteristics, 10 J of Interpersonal
Violence, at 147, 148 (June 1995).
Steven D. Epstein, The Problem of Dual Arrest in Family Violence Cases,
Connecticut Coalition Against Domestic Violence, October 21, 1987, at 1.
Criminal Procedure Law SS 140.10(c).
McKinney's Session Laws 2001.
D.A. Ford, The Impact of Police Officers' Attitudes Towards Victims on the
Disinclination to Arrest Wife Batterers, Paper presented at the Third National
Conference for Family Violence Researchers, University of New Hampshire,
Durham, New Hampshire. See also Daniel G. Saunders, The Tendency to
Arrest Victims of Domestic Violence: A Preliminary Analysis of Officer
Characteristics, 10 J of Interpersonal Violence, at 147, 148 (June 1995).The Family Protection and Domestic Violence Intervention Act of 1994 179
Mary Haviland, et al., The Family Protection and Domestic Violence
Intervention Act of 1995: A Report by the Family Violence Project of the
Urban Justice Center, 2001, at 68.
S. Crane, Washington's Domestic Violence Prevention Act: Mandatory
Arrest Two Years Later, The Women's Advocate, (Newsletter of the
National Center on Women and Family Law), May 1987, at 4.
Mary Haviland, et al., The Family Protection and Domestic Violence
Intervention Act of 1995: A Report by the Family Violence Project of the
Urban Justice Center, 2001, at 5.
Id. at 5.
Id. at 68.
Case before Hon. Alma Cordoya, Bronx Family Court, Part 8.
Where serious allegations are involved, it may be appropriate for the
criminal defense attorney to negotiate temporary immunity status to avoid
further charges being filed against your client.