Publications Lisa Fischel-Wolovick
"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 woman's perspective."3 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. Both provisions, while not foolproof, increase options for battered women.

In New York, Bruno v Codd paved the way for the current reform domestic violence legislation6. 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 period8. 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 battered women.

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. Not 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 The study 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.

Retaliatory Arrests

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 children."22 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 Ms. C.

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.

Practice Implications

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.

1 Laws of 1994, ch 222.
2 See Criminal Procedure Law SS 140.10.
3 Linda Mills, Commentary: Killing Her Softly: Intimate Abuse and the Violence of State Intervention, 113 Harv L Rev 550, 555 (1999).
4 Id. at 556.
5 Family Court Act SS 813 (c).
6 Bruno v Codd, 47 NY2d 582 (1979).
7 Id. at 589; see also Thurman v City of Torrington, 595 F Supp 1521 (1984).
8 New York State Office of Domestic Violence Prevention, Evaluation of DVIA Mandatory Arrest Provisions: Final Report, http://www.opdv.state.ny.us/criminal_justice/police/finalreport/evaluation.html (2001).
9 Id. at 13.
10 Id. at 24.
11 Id. at 24.
12 Id. at 24.
13 Laws of 2003, ch 303.
14 Laws of 2003, ch 222 (Legislative Memoranda).
15 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).
16 Steven D. Epstein, The Problem of Dual Arrest in Family Violence Cases, Connecticut Coalition Against Domestic Violence, October 21, 1987, at 1.
17 Criminal Procedure Law SS 140.10(c).
18 McKinney's Session Laws 2001.
19 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
20 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.
21 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.
22 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.
23 Id. at 5.
24 Id. at 68.
25 Case before Hon. Alma Cordoya, Bronx Family Court, Part 8.
26 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.

Lisa Fischel-Wolovick, Esq.
5911 Riverdale Ave., Riverdale, New York 10471
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email: LFW@wolovicklaw.com
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