Our Pro-Arrest Domestic Violence Policy Is Hurting Young Women
4:00 pm, May 16th | by Sheena Marquis
Since the mid-1980s, there has been an exponential increase in the number of girls arrested, waiting in detention, and serving time in foster placement. According to statistics published in 2009, of all juvenile arrests, 25% are arrests for crimes of domestic and family violence. These arrests disproportionally affect girls: although young women represent 29% of all juvenile arrests, they make up 31% of assault arrests, 35% domestic violence arrests, and 41% child-to-parent violence arrests. It is this last number that is particularly disturbing. It is widely known that child-to-parent violence is more complicated than the name might suggest, and is often correlated with other violence in the family.
Outside their homes, girls are arrested primarily for non-violent crimes — prostitution, running away, simple assault against peers. Girls are involved in violent acts mostly in their homes. According to the Office of Juvenile Justice and Prevention, the increased emphasis on arrests for domestic violence has disproportionally affected girls because most of their violence is acted out in the home.
Pro and mandatory arrest laws have revolutionized the way that police respond to calls of domestic violence. In the 1970s, the police only made arrests for 3-14% of the calls they received for domestic violence. At this time, police could only make an arrest if the following conditions were met: there was a valid arrest warrant, probable cause that a felony had occurred (usually due to visible injury), and the policeman was a direct witness to the misdemeanor.
Throughout the last few decades, with the pressure of the victims’ rights movement, women’s movement and battered women’s shelter movement, policies shifted to encourage police to make an automatic arrest when responding to a domestic violence report. With the goal of supporting victims of domestic violence, several policies were put in place in the mid 1990s. In 1994, the National Council of Juvenile and Family Court Judges clarified that the same laws applied to intimate partner violence as to other forms of family violence. This council also delineated the power of the police, and encouraged police to make arrests when responding to calls of domestic violence. If the police did not make an arrest (or made multiple arrests), they would be bogged down with extra paperwork. These pro- or mandatory arrest policies were endorsed in the 1994 Violence Against Women Act, VAWA, and enforced by only allowing states who adopted pro- or mandatory arrest policies to be eligible for VAWA funding.
With pressure to make an arrest on the scene of family violence, police face the decision of whom to arrest. If the violence is of the typical male-on-female intimate partner variety, the decision may be easier. But how do police react when called to the scene of parent and child violence?
Consider the case of my client, Rachel*, and her twin sister, Daisy. Rachel and Daisy lived with their mother, Valerie, and their two younger sisters in a domestic violence shelter in a low-income area of Brooklyn. One night at the end of December, there was a fight in the home involving Valerie, Rachel, Daisy and one of the younger sisters. Valerie started the aggression, annoyed at Rachel for some reason that quickly became unimportant as the fight escalated. Protective of Rachel, Daisy came to her rescue; similarly, the younger sister sided with Valerie. Valerie called the police, who came quickly before Rachel and Daisy had time to run from the house. The policeman knew the family and was reluctant to arrest Rachel and Daisy, but he was mandated by domestic violence policy to make an arrest. Rachel and Daisy were arrested and removed from the home to a foster care placement. During the course of my time working with Rachel, their mother never dropped the charges or the order of protection against the twins.
The reaction of the policeman to Rachel and Daisy’s situation is typical. When a policeman responds to a call of domestic disturbance, he/she first has to determine whether the violence is in the scope of domestic violence laws — namely, presence of a victim and an offender. In cases of child and parent violence, there are several reasons why the police will identify the child as the offender and the parent as the victim. First, stereotypes of teenagers are hard to combat, and police may be likely to identify the teenager as disrespectful of her parents and other authority figures. In most states (including New York), parents are allowed to use a reasonable amount of corporal punishment to discipline their children. If the police were to believe that the child was the victim of family violence, the case would move from the jurisdiction of the police to child welfare. Further, should the police arrest the parent and remove the parent from the home, they would have to implement a plan for the kids. Even though most incidents of child-to-parent violence in the home are children’s response to parent-initiated violence, it is much easier for the police to arrest the child than the parent. In a study in Massachusetts, youth under 18 were 4.5 times more likely than adults to be arrested in cases of domestic violence.
Girls are disproportionately arrested because most of the violence they commit is in the home. This same study in Massachusetts found that girls were 2.5 times more likely than boys to be arrested in cases of domestic violence. Within this population, girls of color, of immigrant backgrounds, or who live in poverty are the most likely to be arrested because it is these girls who are more likely to have experienced the effects of violence in the community.
There have been some steps made to improve the fate of girls disproportionality arrested by domestic violence pro- and mandatory arrest policies. The Family Detention Project in Philadelphia, Pennsylvania researched the familial, social, economic and educational histories of girls in the court system, and used these demographics to help inform advocacy for this specific population. Positive Youth Development, a strengths-based movement that supports youth in developing positive self-esteem, has been gaining influence since the mid 1990s, and appears to be an effective way to build on the strengths of family and community.
With the 2013 reauthorization of VAWA, it does not appear that pro and mandatory arrest policies are going to be amended anytime soon. These policies have safety benefits, especially for victims of intimate partner violence, who might otherwise be too afraid to encourage the arrest of their partner. Unfortunately, as we have seen, these policies have harmful side effects for the girls who are likely to be arrested in family violence cases.
One possible course of action is to train judges about the needs of this population of girls. Judges should be educated on the effects of trauma, specifically that girls often respond to traumatic experiences with aggression and acting out behaviors, which are often recognized and then criminalized by the juvenile justice system. Because of this, there is a well-established correlation between a history of trauma and involvement in the juvenile justice system for young girls. A high percentage of girls in the juvenile justice system are diagnosed with Post-Traumatic Stress Disorder (PTSD) and/or Oppositional Defiant Disorder (ODD), implying a history of trauma and subsequent acting out behaviors. Girls who have experienced trauma and are placed in detention centers, away from their sources of support and community, generally do not improve their behavior. Hopefully, if judges are informed of these facts, they may be more lenient when sentencing girls arrested in the home. Girls arrested in the home under domestic violence policies often have no prior arrest history. Judges should be informed that adjudicating many of these youths is not fair given the absence of prior arrest histories.
The least we can do is to increase services to these girls. The 2005 reauthorization of VAWA added counseling and advocacy for youths who have experienced domestic violence. The 2013 reauthorization of VAWA included “services, protections, and justices for young victims of violence.” As social workers, policy makers and law enforcement personnel, we must be sure that these provisions of VAWA are directly serving girls arrested in the home for domestic disputes.
Finally, we must increase research for this population of girls arrested under pro- and mandatory arrest domestic violence policies. Much of the research on pro- and mandatory arrest has focused on its effects on intimate partner violence. The Juvenile Justice and Delinquency Prevention Act of 1992 mandated that, for states to receive funding, they must study and plan for gender-specific treatment and prevention services. Following this act, it was found that of the 95% of states that submitted plans, only 38% used the funds for the gender-specific programs they had planned. Increasing research on the needs of this vulnerable population and subsequently implementing the recommendations of the research is, certainly, a good place to start.
Sheena Marquis has a MSW from the NYU Silver School of Social Work.
*Clients’ names/family members’ names have been changed.
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