Domestic Violence: Police Investigation and Gender Bias

Criminal charges as a result of domestic violence are an ever increasing phenomenon in courtrooms across the United States. In North Carolina, these charges are defined as any assault, violation of a restraining order, trespass on property, damage to property, or unwanted communication occurring between two people who have at some time been in a romantic relationship. This can include acts between current spouses, domestic partners, current and former love interests and divorced parties. In North Carolina, prosecutors across the State have focused on these crimes by creating special courtrooms with specially trained assistant district attorneys, victim witness advocates, and judges who focus solely on these crimes. Police departments have also developed specially trained officers to deal with domestic disputes arising in this area.

In order to better understand this area of criminal law and utilizing my experience as a Raleigh Domestic Violence Attorney, I want to focus on three key stages of the criminal process: Part One will cover the police investigation of domestic violence; Part Two the prosecution of these cases once they reach the courtroom; and Part Three, options if you are a criminal defendant facing a domestic violence charge.

PART ONE

Initial Investigation and the Police “Mindset”

When police are called to a residence as a result of an assault or restraining order violation, they are trained to be cautious of the dangers that potentially await them. Fights and disagreements between individuals who are romantically involved can quickly escalate into volatile situations, especially when one are both parties are under the influence of an impairing substance. Depending on the call received, the police can and will enter a residence under their powers of exigent circumstance to secure any weapons on the scene and immediately separate the parties involved if both are still in the residence. Typically one officer will interview the alleged victim while another officer interviews the alleged perpetrator. The decision to determine who has been the aggressor, or the party more at fault, will depend on visible injuries, the statements of the parties, who made the 911 call, whether one of the individuals is impaired by alcohol or drugs, and whether a party to the assault has already left the scene. The police will take statements, photograph injuries, and make an assessment of what charges should be filed.

Once one or both parties to the assault are arrested, typically they are transported to the jail where a magistrate will place a monetary bond on their release and set a condition that the defendant has no contact with the alleged victim in the case. Under North Carolina law, these release conditions must be reviewed by a District Court judge within 48 hours of the arrest. If both parties to the assault live under the same roof, the no contact order means that the defendant in the case cannot return home, or have any contact with the alleged victim, until the case is resolved.

The Violent Assault Versus the Bedroom Pillow Fight: What happened to police exercising discretion before deciding to arrest?

As a former assistant district attorney and a practicing Raleigh Domestic Violence Attorney, I can attest to the fact that there are a number of repeat domestic violence offenders who are in and out of our jails and courtrooms. There will always be a certain element of society, either by the nature of their upbringing, mental health problems, or continuing substance abuse, who use physical and verbal violence towards loved ones as a form of power. The laws are designed to protect against, and hopefully rehabilitate, these defendants.

Unfortunately, our police departments, far too often, use the power to arrest as a way of diffusing the most minor of disagreements. An arrest is often the easy way out for an officer faced with a he said, she said situation. I have seen charges, and sometimes arrests, result from all of the following fact patterns: the bedroom pillow fight between spouses married over ten years because of financial difficulties; a slap to the face between high school sweethearts over possible infidelity learned about on Facebook; and a small bruise on the arm of a woman who was attempting to restrain her husband from going on a morning jog because they hadn’t finished arguing about who would pick up their child from daycare. Somewhere along the way the exercise of discretion on the part of police has been lost, and handcuffs have become the answer. If you are involved in a dispute with a present or former romantic partner, you need to be aware of this troubling phenomenon.

Gender Bias, Cultural Conditioning and the Police

It is a proven fact that men account for a high majority of all domestic violence related crimes. It is unfortunate, however, that men who are the victims of abusive female partners or who are placed in situations where self-defense has to be used, often do not get a fair shake in a Domestic Violence courtroom.

Under the laws of North Carolina, an assault of a female by a man over 18 years old carries more jail time and is a higher class misdemeanor than a woman who assaults a man under similar situations. Whether this is a remnant of the days of chivalry, or simply our legislature’s belief that men are generally bigger, stronger, and more able to inflict greater injury on a woman than vice-versa, it is the law in our state.

If you are man in a domestic violence situation with a female partner, it probably does not come as news to you that many police officers are going to assume that you are the at-fault party. You may well face an uphill battle in court trying to prove your innocence, or that you acted in self-defense. I have had male clients who called 911 about an assault at the hands of their wife or girlfriend and who suffered serious injuries that required hospitalization. These same men, who attempted to prevent injuries in self-defense, ended up in jail with more serious charges than their female instigators. The moral of this story is that a man in North Carolina, no matter how much he is provoked or attempting to prevent further injury, should never come into offensive physical contact with a woman under any circumstances. It is much better to leave the house than to try and bear hug, restrain, or pin the arms of a woman who is trying to hurt you.

In Part Two, we will discuss what to expect from Prosecutors in the Domestic Violence Courtroom.

Does Mandated Domestic Violence Police Arrest Help or Hurt Domestic Abuse Families?

Over a year ago a newspaper reporter asked me this very question and I was on the fence. I thought I understood the battered women’s perspective and appreciated the police correction’s side. I truly can see this from both points of view, but today if I had to vote, I’d vote against mandated arrest.

Mandated Arrest for Domestic Violence

Mandated arrest is a law that requires law enforcement to make an arrest when specific conditions exist, which are indicative of the presence of domestic violence. The particulars differ from state to state for the states that have adopted mandated arrest for domestic abuse.

Mandated Domestic Violence Arrest and Police Corrections

The fundamental belief is that once domestic abuse leaks out to law enforcement, the victim can be manipulated or coerced into dropping charges. She is likely to be overpowered by the abuser to yield to his wishes. And in many cases this is exactly what happens. It happened to me 18 years ago.

In my particular case, mandated arrest could have helped my children and me. This is clear to me now. However, this is not always the case for domestic violence families.

Mandated Arrest and Battered Women

Individuals in the domestic abuse shelter communities are strongly opposed to mandated arrest because it takes the ultimate decision of proceeding with charges out of the victim’s hands. Essentially this gives her no say at a time when her vision embraces more of the whole family circumstance than that of anyone else.

In many respects it robs her of her basic human rights to make her own decisions regarding her welfare. It declares her momentarily incompetent to make this family abuse milestone decision. The reason I was on the fence over this debate is because I knew this “state of incompetence.” It is very real in cases of true unidirectional intimate partner violence.

However, most cases of domestic abuse are not so clear-cut. And when that is the situation, basic rights are infringed upon. Many people liken it to laws prohibiting abortion in that the woman is denied “her choice,” in a situation regarding her body… and her family. Mandated arrest for domestic abuse is seen as further victimizing the survivor… dis-empowering her, even more.

The Downside of Mandated Arrest

I have seen far too many cases when mandated arrest brought irreparable destruction to families that needed psychological care over corrections. One such case resulted in the perpetrator’s suicide and another in exacerbated psychopathology with severe implications for innocent minor children.

If you are “considering” going to the police, it will be in your interest to understand the specific implications of doing so. Know the laws in your state and the consequences of these statutes.

The keyword-operative word-here is “considering.” This word must be distinguished from a reflex urgent 911 call. You will want to call for immediate police help if you are in imminent danger. On the other hand, if you are reflecting on a domestic abuse altercation weeks on end after the fact, consider with full consideration, competency and care.

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Domestic Violence Rears Its Ugly Head

Domestic violence and domestic abuse assault are alive and well in the United States. From the time that we first wrote about this issue over eight years ago the only thing that has changed is that it appears that law enforcement officials are more aggressively pursuing domestic violence complaints. After all, they are a felony.

From a recent article about domestic violence comes this quote:

“Silence is part of the problem. Time and again it’s been shown that the secrecy shrouding domestic violence can allow it to escalate to more severe physical confrontations and tragic consequences. Silence also bolsters society’s illusion that domestic violence is not a more significant social problem, further isolating victims and abusers from getting help.”

If you think you’re doing your intimate partner a favor by keeping quiet about his assaults on you, you’re not. If you feel it’s too embarrassing to talk to a friend and help them in a domestic abuse assault situation, you’re not doing them any favors either.

Silence is not golden-especially in a domestic violence situation.

One out of every four women in the United States experiences intimate partner violence and this is not just limited to adult women. One in three high school age girls experiences violence in a dating relationship.

The percentage of women under the age of 18 who are raped by a family member is an absolutely disgusting 34%, and women who are homeless or have disabilities are especially vulnerable with their percentages over 50% likely that they will be the targets of domestic abuse assault.

The percentage of teen rape and abuse victims who report their assailant as an intimate partner is 76%.

Especially since law enforcement is taking these complaints more seriously, the chances of getting help from the law enforcement community is greatly increased. It used to be as recently as five or 10 years ago that domestic abuse or domestic violence complaints were given a wink and a nod by law enforcement-they just weren’t taken seriously. But thankfully those days appear to be over.

Women who are in a domestic abuse situation should not only arm themselves with a self-defense product like a stun gun or pepper spray, but they should seriously develop an escape plan.

A self-defense product can provide you precious minutes of relief in an assault so you can seek help. An escape plan would entail trusting a friend, neighbor or relative to harbor you in an emergency. You don’t want to leave your future in the hands of a shelter that may or may not be able to admit you.

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