Domestic Violence Legislation Affecting Police and Prosecutor Responsibilities in the United States: Inferences from a 50-State Review of
State Statutory Codes

 

Presentation to

The 5th International Family Violence Conference

University of New Hampshire

June 30, 2023

Revised Septemer 2, 1997

 

Neal Miller, Esq., Principal Associate

Copyright 1997 Institute for Law and Justice. This document may be be distributed freely as long as the document and its parts are not changed and as long as the copyright, grant reference to the National Institute of Justice, and the disclaimer of Department of Justice responsibility for content are included as shown here and below.

Grant No. 96-WT-NX-0007 from the National Institute of Justice to the Institute for Law and Justice

This project was supported by Grant No. 96-WT-NX-0007 awarded by the National Institute of Justice, Office of Justice Programs, U.S. Department of Justice. Points of view in this document are those of the author and do not necessarily represent the official position of policies of the U.S. Department of Justice.


Background

Until recently, legal fictions, social prejudices, and criminal justice apathy and ignorance combined to define domestic violence as a nonevent. Society's tolerance for domestic violence has significantly waned in the past decade, however. New laws in many states now criminalize abusive behavior that was accepted, if not necessarily approved, 15 years ago.[fn1] Among the more significant advances in criminal law relating to domestic violence are (1) the adoption of antistalking laws in 50 states where there were none in 1989; (2) repeal or limitation of many (but not all) states' spousal exception laws in rape cases; and (3) passage of new spousal battery laws that provide unique penalties in spousal assault and battery cases.

Other laws reform the criminal process to make arrest and prosecution of abusers easier. For example, every state now permits warrantless arrests in domestic violence cases subject to a police officer's determination that probable cause exists to believe domestic violence occurred.

Civil protective law to protect abused spouses and other family members have become integrated with the criminal law to augment the protections offered by the civil laws. In most states, violation of a court order of protection is a crime, in some a felony, in others a misdemeanor. Police officers are authorized to arrest order violators without a warrant, based on a determination of probable cause. Similarly, advances in information technology used by criminal justice agencies such as state-wide law enforcement computerized criminal record communications systems now improve police communications for enforcing civil law injunctions.

Many states have also updated their civil protective laws providing for court injunctions against domestic violence. These changes include broadening the category of persons who may seek court protection to include non-married couples and eliminating the need for victims to pay court fees to invoke the protection of the court.

Finally, new training mandates ensure that police, prosecutors, and judges will be better informed about the social and personal costs of domestic violence and how they can best act to reduce such incidents.

State Variations

Not every state has adopted every type of law cited above; nor has every state adopted the most protective law possible. Indeed, the states have adopted widely variant statutory models that in some instances reflect strong legislative intent to protect domestic violence victims, while other state laws perhaps reflect more compromise than fervor. Among the key indicators of the depth of protection offered are

One additional issue that must be included in any assessment of the variation among state domestic violence laws is the integration of domestic violence with states' victim rights acts. For example, many states' laws provide that police officers responding to a domestic violence call must inform the "victim" of his or her rights, such as the right to a court protective order, and of available services. In other states, without such statutory requirements, there are victim rights acts that provide generally for police and prosecutor informing of rights. Finally, there are states where both types of laws coexist.[fn2]

Legislative Review

As part of a larger study to examine police and prosecutor responses to domestic violence[fn3] , Institute for Law and Justice (ILJ) staff undertook to review state laws affecting how police and prosecutors perform their duties in domestic violence cases.[fn4] Special attention was paid to states' penal and criminal procedure laws that set out agency staff duties and provide for their training. No systematic attempt was made, however, to examine state court decisions ruling on the constitutionality of state laws that may be subject to such challenges (e.g., stalking laws, marital exception to sex assault laws). Thus, this review may count laws that are, in fact inoperative in whole or part under court interpretation.

Criminal Code Provisions

The starting point for understanding police and prosecutor responses to domestic violence is determining what laws they are required to enforce. These include both traditional (common law) offenses and more recent provisions that explicitly criminalize domestic violence and related offenses. Other provisions criminalize violation of a civil order of protection issued by the court, complementing the common law offense of criminal contempt of court.

Traditional offenses: Common law crimes that may be invoked in domestic violence incidents include homicide offenses, assault and battery, and criminal trespass. Needless to say, every state provides criminal penalties for homicide and assault and battery. And, all but a few states punish criminal trespass.

State laws against rape, another common law offense, present a different picture, however. Until recently, many states' laws provided for a marital defense to charges of rape of an offender's spouse. Most states have now abolished the marital defense in toto.

State Variations:  Only one state's statutes retain an unlimited marital exception to its rape laws. Two states' laws provide for a limited exception where spousal complaint of rape is delayed past 30 days of the incident. Five states repeal the spousal exception where the couple is living apart under a separation agreement, including one with a separate spousal assault law. Two other states provide for a marital exception in lesser offenses, but repeal it for forcible rape cases. Two additional states maintain a spousal exception for rape, but substitute a new spousal sexual assault law. Finally, three other states have enacted separate spousal sexual assault laws that as part of their code provisions for rape and related crimes. (See Exhibit 1 and the map of states).

Domestic Violence Crimes: Just as five states have adopted spousal sexual assault laws as supplements to traditional rape laws, twenty-five states have adopted domestic battery laws that complement common law assault and battery. The primary purpose of these laws is to permit enhanced penalties, especially for repeat offenses.

State Variations:  In five of these states, a single violation of the domestic violence criminal law may be a felony. In five states, a second domestic violence offense is treated as a felony. And in seven states, a third domestic violence conviction calls for felony sentencing. Even where domestic assault is treated as a misdemeanor, the criminal codes of three states provide for a mandatory minimum jail sentence. Of special interest is the Wisconsin law providing for a two year enhancement for a repeat domestic assault occurring within 72 hours of release after arrest from a first domestic abuse incident. (See Exhibit 1)

A common corollary of domestic violence, especially after a court order of protection has been issued, is the offense of stalking. The new stalking laws supplement the older harassment and threatening laws that were found ineffective to deal with less aggressive lurking and the like. First enacted in 1990 by California, every state has now adopted a stalking law to deal with more sophisticated harassments and implicitly threatening behavior.

State Variations:  In 21 states, stalking may be treated as a felony; in 10 of these states stalking may also be a misdemeanor, depending on the specific conduct involved. In the remaining 29 states, most provide for felony treatment for a second (17 states) or third (four states) stalking offense. In the District of Columbia, a second stalking conviction calls for a maximum of 18 months jail time; a third offense, for three years. (See Exhibit 2 and the associated map of the states.)

Stalking-related laws in the states include provisions barring harassment (22 states), threats and intimidation (30 states and the District of Columbia), telephone threats or harassment (24 states), and letter threats (6 states). In most instances, these laws only provide for misdemeanor penalties, reflecting the fact that they precede the stalking laws with more severe penalties. One state makes harassment of a minor under age 16 a felony.   (See Exhibit 3, the map on domestic violence arrests without warrants and the map on protection order arrests without warrants.)

Other related crimes in the state penal codes include tampering or intimidation of witness (20 states) and interfering with reporting of a crime (2 states). One state's laws even include interfering with access to a medical facility or shelter and trespass at a domestic violence shelter. (See Exhibit 1)

Court Order Violation Crime: Every state provides for a court order of protection against domestic violence. Typically, these orders mandate that the abuser stay away from the abuse victim, as well as enjoining any further violence.

State Variations:  Forty-one states and the District of Columbia make violation of the court order of protection against domestic violence a separate criminal offense. In two other states, violation of an order may be subject to a special criminal trespass law. But even in those states where there is no criminal penalty, violation of a court order of protection may be punished by a court finding of criminal contempt, which typically calls for misdemeanor-level penalties. In only three states may a violation of a court protection order be treated as a felony; in the remainder it is a misdemeanor. However, in six states, repeat violations of a court order may constitute a felony. In addition, one state makes violation of a criminal protection order issued at a bail hearing for an initial domestic violence arrest to be a possible felony offense. One other state makes an assault in violation of a protective order to be a felony. (See Exhibit 1).

Twenty-one states authorize issuance of a civil protection order against stalking, regardless of whether there is any related domestic violence. Violation of an antistalking order may also a criminal offense, typically at a higher level than that authorized for violation of a domestic violence protective order. Of 20 states with criminal penalties for violating an antistalking order, only seven do not provide for felony treatment. (See Exhibit 2)

Criminal Procedure

One of the most important innovations in domestic violence cases has been a change in the common law rule authorizing police to make warrantless arrests in misdemeanor cases only where they actually see the crime committed. Today every state authorizes warrantless arrests of domestic violence offenders based solely on a probable cause determination that an offense occurred and that the person arrested committed the offense (the standard for felony cases)[fn5] .

State Variations:  Nine states, however, place time or noticeable injury limits on the exercise of an officer's discretionary power to arrest. In 19 states, police arrest of the domestic violence offender is mandated, although this authority is subject to some time or noticeable injury limitations in ten states and limited to felony assaults in two states. And in seven states, an arrest for domestic violence is the preferred action; officers who fail to arrest must explain why they did not do so in a written incident report. Two of the states whose laws state a preference for arrest, however, place time limits (within 4 hours) on such action. Surprisingly, only one state mandates that a police officer seek an arrest warrant where arrest is not authorized due to expiration of a time limit after the domestic violence occurred; one other state mandates seeking a warrant where an arrest could not be made for any reason. (See Exhibit 4)

Violation of a court order of protection is a crime in most states and state laws in all but one state authorizes warrantless arrests based on a probable cause determination that the order has been violated.

State Variations:  In 28 states arrest for violating the court order is mandated and in two states it is preferred, including one where the scope of the mandated arrest authority is set by local policy. (See Exhibit 4)

In 33 states, police officers are required to file incident reports in domestic violence cases. These reports typically will include reasons why no arrest was made or why dual arrests were made.

State Variations:  In eight states reports of all domestic violence incidents must be forwarded to state authorities and will usually be tabulated for inclusion in the state Uniform Crime Reports. In three states, copies of incident reports must be forwarded to the district attorney where no arrest was made. (See Exhibit 4)

A common legislative reform of state bail laws is to authorize police to issue citations in lieu of arrest.  This saves officer time and reserves jail resources for the cases requiring incarceration.

State Variations:  In ten states, the criminal procedure laws explicitly bar police officer use of a citation or appearance ticket in lieu of a formal arrest. In one other state, the officer may not issue a citation where there is a possible danger to the victim. In four of the states barring the use of a citation rather than arrest, the arrest itself is discretionary, neither preferred nor mandated.; only two of these states require police officers to file reports regardless of whether an arrest was made or not.  But in one state that places no restrictions on police citation, domestic violence arrestees must be fingerprinted. (See Exhibit 4)

A number of states also authorize or even mandate that the arraigning court issue a criminal protective order as a condition of bail or other form of pretrial release. Violation of a criminal protective order may result in either the release order being reversed or even additional criminal charges. (See Exhibits 1 and 2)

State Variations:  In two states, arrest is mandated for violation of a criminal no-contact order issued as part of pretrial release order.   In one of these states, a violation of any prerelease condition is subject to mandatory arrest.  In a third state, arrest for violation of bail conditions is discretionary.  (See Exhibit 4)

Although prosecutors have not been a central focus of legislators concerned about domestic violence, state victim rights act provisions relating to the prosecutors are relevant. These laws in 40 states place responsibility on prosecutors to inform crime victims of their procedural and substantive rights (e.g., to compensation) and in half these states require the prosecutor to meet with the victim about their decisions to charge the defendant, accept a plea to reduced charge, or to make a sentencing recommendation to the judge after conviction.

State Variations:  Only one state explicitly places such responsibility on prosecutors in domestic violence cases as such. In three states, state law places limitations on the prosecutors' ability to plea bargain. (See Exhibit 5)

Training Police and Prosecutors

The many changes in law that have occurred in the creation of new crimes and in the enforcement of these laws underscores the policy determination that training in domestic violence is needed by police and prosecutors.

State Variations: State legislators have enacted laws that require police entry-level training to include domestic violence in 29 states and the District of Columbia. Related training requirements have been enacted for sex crimes in eight states and in one state each: violence prevention and victim assistance, violent crimes, including stalking, victim rights, victim needs, and crisis intervention. The minimum content of the required domestic violence entry training is specified by statute in 21 states. Alaska law, for example, requires that domestic violence training include materials on state laws, crime incidence and significance, and service providers. Other topics include techniques to minimize threats to officer and victim safety, the investigation and management of domestic violence cases, report writing, shelters, and written notice of victim rights. (See Exhibit 6 and the associated map of Recruit Training.)

A national telephone survey of state agencies responsible for setting police training standards found that 42 of 49 states responding required a minimum level of domestic violence training to be provided police recruits. The remaining seven states responding to the survey were not able to estimate the amount of time devoted to domestic violence training.

State Variations:  Many states also reported requiring related recruit training. Thirty eight states required training on rape and other sexual assault crimes. But only12 states required stalking training, compared to 17 requiring training on obscene phone calls. The amount of training on domestic violence required ranged from 30 hours to a minimum of 2 hours, with a mean of about 10 hours training required. (see Exhibit 7a ) Additional comments provided by these agencies indicate that the Violence against Women Act has directly led to increased recruit training in one state and is expected to result in increased training in the near future in seven other states. (See also Exhibit 7b for a review of current levels of training in the states.)

In-service police training is only infrequently required by states' police training laws.

State Variations:  Only 11 states require domestic violence police training to complement entry training requirements. Two states require in-service training where the officers had no entry training in domestic violence. One reason for this smaller number of states is the absence of many states' laws of any reference to state standards for in-service training. Seven of the states requiring domestic violence in-service training also set minimum standards for this training. (See Exhibit 6)

A related state requirement in 16 states is that for local written policies and procedures for the handling of domestic violence cases.

State Variations:  This includes nine states where a central agency (e.g., Attorney General) is responsible for drafting minimum uniform or model standards for local agencies to use in drafting their local policies and procedures. More limited legislation is found in one state that requires local written guidelines for verification of protective orders. One other state, conversely, requires the Attorney General to set standards for police crime victim duties and for the handling of sex crime victims. (See Exhibit 6)

Much less attention has been paid to training of prosecutors.

State Variations:  Only four states require training of prosecutors in the handling of domestic violence cases. Four other states' laws authorize the availability of such training to prosecutor offices. Another three states' laws provide for victim assistance training to be made available. Other miscellaneous laws include state grants for special domestic violence prosecutor units, vertical prosecution requirement in domestic violence cases, and required written policies that favor prosecution. (See Exhibit 5)

Analysis

The major policy question requiring analysis is which states have the best overall legislative schemes for stressing domestic violence cases. Answering this question requires the establishment of criteria to identify "best" legislation from among those identified above. This also allows for identification of model legislative provisions that other states may wish to copy.

Overall Legislative Schemes

The states with the best overall legislation for combating domestic violence from a criminal justice perspective [fn7] include California, Minnesota, Rhode Island, and Wisconsin. All of these states make domestic violence a crime (California makes it a felony). California also has a separate provision for sexual assault of spouse. None of these states recognizes a spousal exception for rape. All four states make violation of a protective order a crime and also authorize criminal contempt proceedings.

California makes stalking a felony while the other four states provide felony treatment for repeat stalking. All four states provide for civil orders of protection in stalking cases, with criminal penalties for their violation. California and Wisconsin also provide separate penalties for telephone threats, Rhode Island makes harassment a felony, and Wisconsin makes harassment a Class A misdemeanor.

California provides for preferred arrests in domestic violence cases and in order violations; local policy sets standards for mandatory arrest in order violation cases. Minnesota law mandates arrest in order violation cases, while authorizing discretionary arrest in domestic violence cases within 12 hours of their occurrence. Rhode Island mandates arrest without a warrant in both types of cases where the arrest is within 24 hours of the incident; officers must seek a warrant where arrest is not possible. Wisconsin also mandates arrest in both types of cases; arrest in domestic violence cases must be made within 28 days of the incident and there must be physical injury or a threat of injury. Three of the four states (except California) require written incident reports by the police. Three of the four states (except Wisconsin) bar the use of citations in lieu of arrest. All four states require written policies and procedures for the handling of domestic violence cases; both Minnesota and Rhode Island have state level model policies.

Three of the states' laws include mandates for local prosecutors. California funds special domestic violence units and places limits on plea bargaining in serious cases. Minnesota requires local prosecutors to have a written plan for handling domestic violence cases that must include vertical prosecution. Wisconsin requires prosecutors to have written policies to guide assistant prosecutors; the policies must favor prosecution.

All four states laws require that entry level police training include domestic violence. Rhode Island also requires police in-service training in domestic violence.

The four states that seem to have the best criminal law provisions for combating domestic violence are not perfect. Each state has significant weaknesses. California, for example, lacks a police incident reporting requirement and does not mandate arrest for domestic violence. On the other hand, its criminal code provisions establishing domestic violence as a separate crime and setting penalties for stalking are among the strongest in the nation. Minnesota also fails to mandate arrests in domestic violence cases, but requires police incident reports; bars the use of citations instead of arrest; and requires vertical prosecution. Rhode Island has what are some of the strongest pro-arrest policies, including requiring officers to seek a warrant where no arrest was possible. It is also among the few states to require in-service police training in domestic violence. But its laws set no standards for the prosecutors' training or duties. Wisconsin law provides for enhanced penalties for any domestic violence within 72 hours of release after arrest but state law seemingly makes no mention of any bar to the use of citations. In sum, even the best states' laws have flaws. But as a group, these four states illustrate the best that state legislation provides.

Model Legislative Provisions

Drawing upon existing legislation as a guide, model domestic violence legislation for police and prosecutors that is drawn from existing law might include:

The several criminal code and criminal procedure laws detailed above parallel in many ways the "Criminal Penalties and Procedures" provisions of the Model Code on Domestic and Family Violence developed by the National Council of Juvenile and Family Court Judges.[fn6] The Model Code, however, is a much broader document and includes provisions not discussed here, including civil orders of protection, custody of children, and prevention of treatment. Among the more significant differences between the listing above and those of the Model Code are the specification in the former of separate domestic violence crimes (the Model Code simply provides for enhanced penalties for a second domestic violence related offense such as assault and battery), explicit repeal of any spousal or marital exception to the sexual assault laws, and requiring police to seek a warrant where immediate arrest is not possible. Nonetheless, the Model Code is a good quick resource for those seeking additional discussion of many of the issues raised here and many others not discussed for reasons of time or being beyond the scope of the ILJ project.

Constructive comments and suggestions are welcomed by the author, at neal@ilj.org