Domestic Violence Legislation in Colorado by The Greeley Publishing Company

Domestic Violence Legislation in Colorado

M A RY W E S T- S M I T H

Domestic violence advocates and scholars have long argued that domestic violence does not require the use of physical aggression. Rather, it can be identified by patterns of power and control used instrumentally by one partner to dominate the other (Gelles, 1997). The police have been encouraged to consider evidence other than physical injuries as ways to document domestic violence (Peterson & Bialo-Padin, 2012). Harassment, stalking, threats of violence, withholding money, verbal abuse, and damaging property may be used to intimidate and control the partner and can be identifiers of domestic violence within the relationship (McCue, 1995). In 1994 the Colorado legislature, with the strong encouragement of domestic violence advocates, changed the statutory definition of domestic violence to include behaviors that in the past could not have been legally used to identify domestic violence. The new statutes also severely restricted the ability of police officers and prosecutors to use discretion when responding to domestic disturbances. Since that time, the interpretation and implementation of these statutes have been repeatedly identified by many professionals and citizens as problematic, but efforts to modify the statutory language have not been successful. It is worth noting that Coloradoâ&#x20AC;&#x2122;s statutes regarding domestic violence are unique in the United States and that no other states have followed suit by modeling this legislation (U.S. Department of Justice, 2008). The current study makes use of qualitative research methods to explore how the domestic violence statutes that have been in effect for over 20 years are understood by individuals who work in the criminal justice system. The statutes appear to have had a significant net-widening effect, capturing people who previously would not have been identified as domestic violence offenders. We also explore what can happen to individuals who do not appear to use power and control to dominate their intimate partners, the hallmark characteristics of domestic violence offenders, who, nonetheless, are labeled as such. Finally, we identify why it has been so difficult

to modify this legislation despite the wide acknowledgement that these statutes have had serious negative consequences that the drafters of the legislation apparently did not anticipate. Literature Review In 1984 the publication of Sherman and Berk’s landmark evaluation of the Minneapolis Domestic Violence Experiment marked the beginning of a major shift in law enforcement responses to domestic violence. The evaluation focused on situations that make up the bulk of calls for service for domestic dispute – those that lacked clear signs of serious physical assaults. Three randomly-assigned police responses were possible: arrest, telling the aggressor to leave the victim’s location for eight hours, or having the police officer offer some form of mediation or advice to the couple in conflict. After the initial police interaction, researchers contacted victims for face-to-face interviews to obtain a history of the use of violence by the aggressor, with additional follow-up interviews that recorded the frequency and seriousness of subsequent violent incidents. After six months, the researchers also searched criminal justice records for aggressors’ names in an effort to identify additional reports of domestic violence, whether with the same or a different victim (Sherman & Berk, 1984). The findings from this experiment indicated that arrest resulted in a statistically significant reduction in subsequent reports of offending compared to the other two methods tested. Sherman and Berk (1984) warned that a number of methodological problems with the original experiment existed and stated that the study needed to be replicated to confirm that arrest actually did reduce recidivism. Despite the authors’ cautionary advice, the news that arrest appeared to reduce reoffending quickly spread to advocates, policy makers, and police administrators. Unfortunately, follow-up studies of mandatory arrest policies did not confirm that such policies uniformly resulted in reduced recidivism. In a replication of the experiment in

Milwaukee, Sherman, the lead investigator for the Minneapolis Domestic Violence Experiment, and his colleagues found the opposite; overall, arrested offenders were more violent with their victims after the arrest (Sherman et al., 1992:139): Just as the Minneapolis study's authors feared, the Milwaukee, Wisconsin domestic violence arrest experiment provides substantial evidence that arrest makes some kinds of people more frequently violent against their cohabitants. This evidence creates a philosophical conflict between the objectives of punishment and deterrence, a problem with little previous commentary in the jurisprudence of sanctions. The evidence shows that, while arrest deters repeat domestic violence in the short run, arrests with brief custody increase the frequency of domestic violence in the long run among offenders in general. Additional replications of the original domestic violence experiment yielded contradictory results. Furthermore, in locations that initially showed short-term positive effects, the effects quickly wore off (Schmidt & Sherman, 1993). While mandatory arrest for some offenders appeared to result in a reduced use of violence, especially those with a stake in mainstream societal conformity, a disturbing implication of the replication studies was that mandatory arrest, if arrest was the only response, would result in some victims being subjected to higher rates of violence after the arrest (Schmidt & Sherman, 1993). Nonetheless, the mandatory arrest genie was out of the bottle and, despite ample evidence that removing police discretion through mandatory arrest policies may actually harm some victims, states continued to pass mandatory arrest statutes, which require police officers to make arrests when responding to domestic calls, or "preferred arrestâ&#x20AC;? statutes, which strongly encourage police officers to make arrests.

By 1992, fifteen states and the District of Columbia had laws that required mandatory arrest if probable cause was established that a domestic dispute involved domestic violence (Schmidt & Sherman, 1993). While the Minneapolis Domestic Violence Experiment played a major role in this rapid adoption of mandatory arrest legislation, other forces were at work. Schmidt and Sherman (1993) also noted that successful litigation against police departments which failed to arrest domestic violence offenders and political pressure applied by women’s advocacy groups fueled the push toward mandatory arrest. From a police administration perspective, if the offender was arrested, the police response had been appropriate and the police officer and department could not be held liable if injuries or death occurred at a later date. As such, mandatory arrest became the safe response to domestic violence. By 2008, despite strong evidence that mandatory arrest alone was an ineffective and potentially dangerous policy, twenty-two states plus the District of Columbia had mandatory arrest policies, six had “preferred arrest” provisions that strongly encouraged officers to make an arrest, and twenty-two states left the decision to make an arrest to the responding officer (U.S. Department of Justice, 2008). Changing Definitions of Domestic Violence Many definitions of domestic violence focus on physical aggression in an intimate relationship. The term “battering” has also been used to describe domestic violence, particularly when violence is used by men against women (McCue, 1995). However, physical assaults alone do not represent the entire scope of domestic violence. Jones (1994:88) noted that the use of physical violence in domestic cases is instrumental and that such aggression is not merely the result of a “blow-up” but is part of a process of “…deliberate intimidation intended to coerce the victim to do the will of the victimizer.” Jones (1994) further argued that the process of

intimidation and coercion used by abusers resembles brainwashing and that the tactics used to establish control do not always require the use of direct violence against the victim. Advocates for domestic violence victims have long argued that emotional and psychological abuse used to intimidate and coerce victims should also be included in definitions of domestic violence. In 1991 in Portland, Oregon, the Multnomah County Board of Commissioners accepted a report from the Family Violence Intervention Steering Committee entitled From Harassment to Homicide: A Report on the Response to Domestic Violence in Multnomah County. Within this report, domestic violence was defined as â&#x20AC;&#x153;the emotional, physical, psychological, or sexual abuse perpetrated against a person by the personâ&#x20AC;&#x2122;s spouse, former spouse, partner, former partner or by the other parent of a minor child. Abuse may include threats, harm, injury, harassment, control, terrorism, or damage to living beings or propertyâ&#x20AC;? (as cited in McCue, 1995:2). This broader definition of domestic violence long promoted by advocates included acts indicating the presence of other forms of abuse not traditionally recognized as part of a legal definition of domestic violence. Bingham (2005) noted that while the infliction of emotional abuse is not specifically statutorily covered, some states have attempted to identify behaviors, such as harassment, stalking, and damage to property, which can serve as identifiers of emotional abuse. As Peterson and Bialo-Padin (2012) argue, property damage, such as the destruction of a telephone to prevent a victim from calling for help, can be used as evidence of an attempt to control a partner. Because it can be documented, property damage can be especially useful for police. Domestic Violence Statutes in Colorado Domestic violence in Colorado is not a crime. Instead, it is a sentence enhancer for offenders convicted of crimes determined to be related to domestic violence. Criminal justice

sanctions can vary widely depending upon the severity of the underlying crime to which the domestic violence designation is attached. At a minimum, all convicted offenders must complete a mandatory state-approved domestic violence treatment program and a term of probation, relinquish any firearms, and cease contact with the victim until after the final disposition of the case, unless the judge decides to allow some level of communication. Offenders who accept a plea negotiation and plead guilty or who are convicted at trial will also have the official label of domestic violence offender for the rest of their lives, since Colorado does not allow for sealing criminal records when the disposition of a case is through a conviction. In 1994, Colorado adopted a series of statutes related to domestic violence that include what is arguably the broadest state statutory definition of domestic violence: "Domestic violence" means an act or threatened act of violence upon a person with whom the actor is or has been involved in an intimate relationship. "Domestic violence" also includes any other crime against a person, or against property, including an animal, or any municipal ordinance violation against a person, or against property, including an animal, when used as a method of coercion, control, punishment, intimidation, or revenge directed against a person with whom the actor is or has been involved in an intimate relationship (C.R.S. [Colorado Revised Statutes] 18-6-800.3). The inclusion of all levels of crime, from municipal to felony and against persons or property, makes Coloradoâ&#x20AC;&#x2122;s domestic violence statutes unique. In addition to the extremely broad definition of domestic violence, the legislature clearly identified what officers responding to calls for domestic disputes must do: When a peace officer determines that there is probable cause to believe that a crime or offense involving domestic violence, as defined in Section 18-6-800.3, has been

committed, the officer shall, without undue delay, arrest the person suspected of its commission pursuant to the provisions in subsection (2) of this section, if applicable, and charge the person with the appropriate crime or offenseâ&#x20AC;Ś (C.R.S. 18-6-803.6). â&#x20AC;&#x153;Shall arrestâ&#x20AC;? is mandatory arrest. The legislature signaled its intent that in order for any crime to be considered domestic violence, the police officer must first make a probable cause determination that the reason the crime was committed was due to one of the five underlying indicators of domestic violence: coercion, control, punishment, intimidation, or revenge. Once the probable cause determination is made, the officer must immediately arrest the suspect and the suspect must stay in jail until he/she appears before the judge or magistrate. In addition to the restriction of discretion placed on peace officers, the statutes also provide prosecutors with very few options for dealing with domestic violence cases. C.R.S. 186-801 does not allow prosecutors the discretion of dropping the domestic violence designation under which the arrest took place. As such, prosecutors are required to pursue cases as domestic violence unless they believe that they cannot prove beyond a reasonable doubt that the alleged offender and the victim had an intimate relationship or that the reason the crime was committed was due to one of the five underlying motives of domestic violence, as defined by statute. Prosecutors do not have the ability to drop the domestic violence enhancer and pursue a charge for the original crime; they must either proceed with the case or drop it entirely. Domestic violence advocates in Colorado lobbied long and hard to convince legislators to adopt statutes that fundamentally changed the definition of domestic violence while severely curtailing the official discretion the police and prosecutors use when responding to domestic disputes. In addition, arguments for changing the statutes likely gained support when an early Colorado study appeared to show that mandatory arrest was related to a slight reduction in

subsequent arrests for domestic violence, based on interviews with victims (Sherman, Schmidt, & Rogan, 1992). What was likely ignored by advocates and legislators was that the response rate for follow-up interviews was only 58 percent, a response rate low enough to call into question the validity of the findings. Policy Making and Domestic Violence Statutes Dür and de Bièvre (2007) note that interest groups may affect political decisions in one of three ways: control over outcomes, control over resources, and control over actors. The focus for advocates pushing for change in domestic violence legislation was control over actors, especially peace officers, prosecutors, and individuals who have behaved in ways that may indicate the presence of domestic violence in an intimate relationship. Victim advocacy groups are generally poorly funded and cannot offer politicians financial campaign support. However, their power lies in advocating for a deserving but weak population – victims of domestic violence and their children – against a group widely perceived as also politically weak but definitely undeserving – domestic violence offenders. In a contest between policies that affect deserving but weak and undeserving but weak populations, policies that benefit deserving individuals are far more likely to be adopted (Schneider & Ingram, 1997). Schneider and Ingram (1993) also argue that recognizing the social construction of target populations is key to understanding the dynamics of policy change. In Colorado, domestic violence advocates also appear to have been successful in overcoming the interests of the traditionally powerful forces of prosecutors and law enforcement. By framing representatives of the criminal justice system as unwilling to recognize the plight of deserving but powerless domestic violence victims, criminal justice system personnel were portrayed as in need of control by statute since victims or advocates, on their own, could not exercise such control.

Ingram and Schneider (1990) identified four effective approaches for statutes designed to limit discretion for policy implementers: strong, Wilsonian, grassroots, and support building statutes (Ingram & Schneider, 1990:74-82). The strong statute approach allows for no discretion by those who are tasked with carrying out the requirements of the statutes. To be effective, a strong statute should contain a causal theory explaining how and why the desired effects will be achieved and clear and specific measurable goals. In addition, adequate resources for implementation should be provided. The Wilsonian approach is similar to the strong statute approach but provides greater discretion to agency administrators for implementing the changes. It also requires measurable goals and objectives and a theoretical underpinning. The grassroots approach is the opposite of the strong statute since it gives the greatest of discretion to the lowest level implementer or the target population itself. This approach assumes confidence in those tasked with carrying out the requirements of the statute. The final approach, support building, focuses on how the statute influences values and participation (Ingram & Schneider, 1990). It appears that in 1994, the Colorado General Assembly attempted to draft â&#x20AC;&#x153;strong statutesâ&#x20AC;? that eliminated discretion for police officers and prosecutors responsible for enforcing the laws. Unfortunately, the requirements for creating an effective strong statute were ignored. Since the effectiveness of mandatory arrest and domestic violence offender treatment was already in question, no causal theory was articulated. In addition, no measurable goals and objectives were identified and few resources that may have facilitated implementation were provided, such as education and training on domestic violence for police officers and prosecutors. Furthermore, the public was not informed that inappropriate but nonviolent behaviors suddenly became acts that could result in a serious and lifelong label of domestic violence offender.

Methods In order to understand how Colorado’s domestic violence statutes are interpreted by enforcers, the current study explored police and prosecutor responses to domestic disputes in which minor property damage is present but evidence of physical assault is lacking. Interview data were collected from thirty-five interviewees: twenty police officers whose experience ranged from a few months to more than thirty years, five individuals employed by prosecutors’ offices who have extensive experience with domestic violence cases, five treatment providers who deliver state-mandated domestic violence treatment, and five individuals who were arrested for domestic violence for minor damage to property but who did not appear to have used the tactics of power and control to dominate an intimate partner. Semi-structured interviews were audio-recorded with participants’ agreement and transcribed for analysis. We used purposive and snowball sampling techniques to contact potential research participants. We had approval to distribute “Calls for Participants” flyers for both professionals and persons arrested for misdemeanor criminal mischief cases with domestic violence enhancers. These flyers described the research and encouraged interested individuals to contact the investigators. Each person interested in participating was told the purpose of the study, and, if they agreed to participate, signed a consent form approved by the University of Northern Colorado’s Institutional Review Board. Criminal justice professionals were employed by law enforcement and prosecutors’ offices in Colorado and were predominately white males, especially law enforcement participants. The treatment providers were generally female and had extensive experience working with both domestic violence offenders and victims and either had private practices or were employed by non-profit treatment providers. The offenders were also primarily female.

Domestic violence legislation in Colorado is a highly-charged political topic. As such, we experienced a number of challenges recruiting criminal justice professionals for this study. While the professionals who participated were eager to do so, a number of other professionals who initially expressed interest in participating did not follow through due to their stated concerns that honestly discussing their observations and opinions regarding the statutes could harm their careers, despite our assurances that their participation was confidential. Persons arrested for minor property damage identified by law enforcement as related to domestic violence were also difficult to recruit for this study. A number of individuals contacted us to discuss being interviewed and initially agreed to participate. However, when scheduling interviews, we found that several potential participants had changed their minds about discussing their interactions with the criminal justice system. Those who participated also expressed concern and embarrassment about revealing highly stigmatizing experiences. Study participants were told their responses were confidential. They were informed that they could choose not to be audio-taped and could stop the interview at any time. All of our interviewees were cooperative, agreed to be recorded, and seemed willing to describe their experiences and perceptions. The interviewees arrested for domestic violence related crimes were open and frank in discussing their personal experiences, although at times retelling the difficulties they faced from having been arrested was an emotionally painful process. While there is always concern regarding potential harm to research participants, as Linn (1997) notes, allowing research participants to relate their stories appears to help them make sense of what happened to them. These participants appeared to feel relieved that they were able to discuss their lived experiences with interviewers who were interested in their accounts and who did not view them negatively. After interviews with persons arrested for domestic violence, we

debriefed these participants regarding our findings from interviews with professionals, which helped them to understand why they had been arrested. While they typically had been told by the arresting officers that the officers were required to make the arrest, our interviewees were still confused as to why they had been arrested, since in their minds they had not done anything that they identified as related to domestic violence. Interviews took place over an eighteen-month period. Interviews with criminal justice professionals took place in private rooms in professional settings and lasted between thirty and sixty minutes. Interviews with persons arrested for domestic violence were conducted in locations of the participantâ&#x20AC;&#x2122;s choice, including faculty offices and participantsâ&#x20AC;&#x2122; homes, and lasted between one and three hours. Two different semi-structured interview formats were used: one for professionals and one for persons arrested for domestic violence. The interview formats relied on sequential probes to pursue leads provided by participants. This approach allowed interviewees to identify and elaborate on what they viewed as important rather than relying exclusively on the researchers to elicit responses to structured questions. The interviews were transcribed for qualitative thematic analysis, which involved a search for general themes and made use of grounded theory techniques similar to those suggested by Glaser and Strauss (1967) and Boyatzis (1998). The data were categorized into conceptual domains of the perceptions of domestic violence, the understanding of the meanings of the statutes, and the perceptions of the criminal justice process. While the perceptions and experiences of our participants likely do not reflect the totality of individuals who work in this field or who have been affected by the laws regarding domestic violence, narratives from diverse and multiple perspectives raised strikingly similar themes, which added depth to our

understanding of the concerns surrounding the domestic violence statutes in Colorado (Ragin, 1994; Seidman, 1998). Prior to beginning this study, we had many conversations with criminal justice professionals over a period of several years regarding the Colorado domestic violence statutes. We also teach classes on victimization and are familiar with the domestic violence literature. Our prior knowledge of the statutes in Colorado and the apparent problems associated with statutes gave us a foundation for our research, helped us to gain access to individuals who might have otherwise not been willing to participate, and helped us to recognize themes as they began to emerge from our participantsâ&#x20AC;&#x2122; accounts. Findings and Discussion Damage to property can be an indication of domestic violence if the purpose of the damage is to intimidate or control an intimate partner. Typical examples of property damage related to domestic violence include slashing car tires to prevent a victim from leaving, breaking a telephone so that a victim cannot communicate with others, destroying a cherished family heirloom as punishment, or punching a hole in a wall next to a victimâ&#x20AC;&#x2122;s head to intimidate and instill fear. Criminal justice professional interviewees readily acknowledged that damage to property can be an indicator of domestic violence. An experienced prosecutor explained why he thought these types of crimes needed to be included in the domestic violence statutes: Coercion, control, intimidation â&#x20AC;&#x201C; the stuff that the statute talks about, I think is appropriately placed in the definition. Some cases that do not involve injury or any physical force certainly rise to the level of domestic violence, in my mind. And I think that is where the legislature was going when they broadened the statute as broad as they did to include coercion, control, and acts of intimidation, as well as acts of violence. And

in some circumstances, this can apply to property crimes like thefts and criminal mischiefs if they are committed in order to control or intimidate the intimate partner. A criminal justice professional with victims’ advocate experience explained why she viewed property damage as a potential indicator of the presence of domestic violence: I always think of domestic violence as involving power and control. That is the constant. One person is making a decision every day to pull those power moves when they are interacting with their partner. It is a process, a grooming process. We talk a lot about that with sexual predators, especially child sexual predators, but I have also seen it in my work with DV victims. And it is a progression. So I don’t think of domestic violence as requiring physical abuse, but there is always that issue of a pattern of power and control in that relationship… I don’t think that I have ever seen a domestic violence victim who had not experienced some sort of property damage – it can be a clear indicator of DV. While damage to property can be an indicator of domestic violence, property damage alone must be considered in context, a point made by an employee of a prosecutor’s office: I don’t believe that property damage automatically equals domestic violence. Sometimes it is hard to tease it out, but there are so many other things going on in those domestic violence relationships. Property damage, alone, cannot be the only indicator. I have seen plenty of cases come through where you have an argument between two people who are in an intimate relationship and property is damaged in some way. It could be accidental or it could be that this person was just so upset that they throw a phone or something like that. There was one woman who broke a cup, and it was her own cup. She was very angry and she threw her own coffee mug on the ground. And she was arrested and taken

to jail for that. They were going through a separation and things had just become very difficult. But I definitely did not see that there were issues of power and control. Nearly every criminal justice professional with extensive experience handling cases involving arrests for domestic violence cited specific examples of damaged property that included broken television remotes, torn wedding pictures, and damaged cell phones for which they felt an arrest should not have been made. One experienced male prosecutor described the difficulty, from a prosecutor’s perspective, in handling some property damage cases that come into the system identified as domestic violence: There are many circumstances where they are breaking a picture, breaking a phone that in my mind isn’t domestic violence. But I’m not the king who that makes that decision. You know it’s just an act of anger on a piece of property. Damaging someone else’s property is still illegal, but does it necessitate the amount of resources given to it by the criminal justice system in terms of probation, supervision, domestic violence treatment classes, mandatory enhancements that trigger other ramifications such as firearm possessions and housing and employment? No. I think that there is sometimes a disproportionate response to an issue…[Creation of the statutes] was an effort to categorize things in a way that doesn’t let sloppy prosecutors or sloppy judges or sloppy police officers not do their job. I mean I get why they created these laws and made certain things mandatory. It’s to prevent that type of sloppiness or laziness. Professionals working in the criminal justice system widely agreed that the inclusion of damage to property in the statutory definition was appropriate at the time the statutes were written. They also were quick to point out the difficulty in determining the motivation for damaging a piece of

property and expressed concern that these cases may be challenging to accurately assess by police officers responding to domestic dispute calls. Disagreement over Discretion The mandatory arrest section of the statute states that peace officers “shall” arrest once a probable cause determination has been made that the reason for the damage was due to one of the five identified domestic violence motivations: coercion, control, punishment, intimidation, or revenge (C.R.S. 18-6-803.3). The apparent legislative intent was that responding officers would conduct investigations to determine if damage to property was linked to domestic violence. Officers are required to make three determinations: 1) the existence of an intimate relationship; 2) the commission of a crime; and 3) the motivation for the crime. The Colorado Supreme Court, in a decision clarifying the meaning of “intimate relationship” as related to the domestic violence statutes ruled that “…evidence of a sexual relationship is not necessary to establish the existence of an intimate relationship…” (People v. Disher, Colorado Supreme Court No. 07SC1088, 2010). However, no clear direction has been given to police officers to help them understand how to identify the statutorily-mandated domestic violence motivations. Our criminal justice professional interviewees widely disagreed over whether or not officers have any discretion in making arrests for property damage in intimate relationship cases. Some participants stated that property damage within an intimate relationship required an immediate arrest since probable cause is established simply by property having been damaged. Others argued that probable cause cannot be determined unless the officer can identify that at least one of the five indicators of domestic violence was the reason the property was damaged. The split was stark between those who believed that any property damage in an intimate relationship required an immediate arrest and those who did not view property damage alone in

an intimate relationship to be justification for making an arrest. Nonetheless, all agreed that once a probable cause determination is made, arrest is mandatory. Younger and more inexperienced officers appeared to be more likely to equate property damage in an intimate relationship to an immediate arrest. One young female officer with less than one year experience explained her understanding of the statute: If property is damaged, even if it is joint property, the statute says that that is a mandatory arrest. If it is an intimate relationship, we have to make an arrest. Another young male officer, on the job for approximately two years, also did not describe conducting an investigation to determine if one of the five underlying motives for damaging property exists: I just base it off of the CRS [Colorado Revised Statutes]. It has to be two people who have had an intimate relationship, either currently or in the past...I donâ&#x20AC;&#x2122;t remember the domestic violence curriculum from the academy. But I remember that there was a focus on the connection of how the people are related to each other â&#x20AC;&#x201C; they had to have had an intimate relationship. And that any type of crime can be considered domestic violence if there has been an intimate relationshipâ&#x20AC;ŚMy understanding of the statute in Colorado is that both parties are to be arrested. But we have been told here in this county that we need to find out who the primary aggressor is, then we shall arrest. This officer clearly did not have good understanding of the dynamics of domestic violence that involve power and control. He also did not reference the statutory requirement that probable cause be met by establishing the motivation for the damage to property. In addition, his belief that the statutes require a dual arrest is inaccurate since nothing in the statutes indicates that both parties should be arrested.

Another female officer who had recently gone through the academy recalled more about her academy training and her training with her Field Training Officer: In the academy, there was maybe about a four-hour chunk of class time on domestic violence. In the PD, the only training you get is when you go to calls with your training officers…In the academy class, domestic violence was shown to be a pattern. Like the first offense would be something minor, like breaking a cell phone or a remote or something like that. But then the next time we come out he’s given her a bloody lip or whatever. And then the next time we come out, she’s got a broken jaw or whatever. And then the next time we come out, the ambulance has to take her to the hospital. The progression of behaviors this participant describes as being taught in the police academy – the inevitable progression from property damage to serious injury – has no foundation in domestic violence research. Scholars and domestic violence advocates agree that patterns of power and control generally worsen over time, but research findings do not indicate that breaking a cell phone will inevitably lead to assaults that result in serious injury or death. While we were not able to confirm that this is what is taught in all police academies, it is clear that this young officer believed that by arresting a person who breaks a cell phone, she is preventing a later serious assault. In her mind, any property damage in an intimate relationship truly is domestic violence. Prosecutors and experienced police officers generally did not view property damage in intimate relationships in such black and white terms. While typically uncomfortable with the word “discretion,” many interviewees nonetheless described the necessity of conducting investigations in order to make probable cause determinations. One experienced police

supervisor described the difficulty in conducting investigations when officers respond to domestic disturbances: I think this is one of the harder crimes to actually develop and articulate probable cause. And I see it when we review officer affidavits. We’ll look at them and say, “Boy, I don’t see probable cause here.” But yet an arrest was made. It happens…I think the intent of the statute is to give specific instructions to officers to do an investigation to make that probable cause determination. But when you ask officers to give you examples of what they think coercion, control, punishment, intimidation, and revenge looks like, you get answers all over the place. Because people don’t really understand what this means. One experienced male prosecutor described the difficulty the statutory language creates, even for experienced police officers who do not equate property damage with an automatic arrest: The [statutory] definition of DV is so broad that the vast majority of those incidents are going to fall into one of the categories listed as coercion, control, intimidation, revenge or punishment. How much falls within the general understanding of revenge? You know, I’m throwing your cell phone in the snow because there’s a picture on it that has upset me. That could be interpreted as revenge or punishment. For cases like this, it is almost impossible to not have probable cause. And once you have that, you have to make an arrest. This participant’s identification of the term “revenge” as especially problematic was echoed by many other interviewees who described the suspicion or discovery of infidelity as a common reason for property damage. A male prosecutor who frequently reviews these cases voiced his concern that the nature of damaged property and the motivation for damage have changed:

Pictures on the cell phones, texts, emails – they find a picture on their significant other’s cell phone that for whatever reason angers them and so they take it out on the most immediate thing present, which is the cell phone. Smartphones and social media – check each other’s Facebook. It seems like a lot of the property crime cases are related to suspicion of infidelity, even if it is not actualized. Because it is now so much easier to find out about your partner, I think we are seeing an increase in arrests that are based on damage to property that is related to social media. Then you throw alcohol in – the mixture between infidelity and alcohol is at the root of so much of this. Some participants were quick to point out that just because a person discovers infidelity and damages property does not mean that domestic violence is not present. As one experienced police officer noted, prior to making an arrest, police officers should investigate to determine if other elements that more accurately identify domestic violence are also present, such as the use of power and intimidation to control the partner: Revenge can be an indicator of domestic violence, as long as you are adding in the control part. But I think that “revenge” is often that spur-of-the-moment act. It could be an affair, it could be a heated argument, it could be you are so enraged that you are looking for that immediate outlet – that sensation that can make you feel better. And that is usually breaking the first thing that is available. A lot of the disturbance calls I’ve been to throughout my career have had to do with infidelity. Just finding out, suspecting, confronting the suspicions, leads to these outbursts of anger. Another experienced police officer described types of property damage he related to someone acting out in anger:

Most of what I’ve seen is broken phones, broken televisions, some of what I call “clutter.” Things like household goods that are out and available – glassware, pictures, something that is available. I’ve never seen anyone go into the closet and pull out the vacuum and damage it. It’s a spur of the moment – what is available to them at that moment. Experienced prosecutors and police officers acknowledged that distinguishing between property damage resulting from an angry outburst and property damage used to control or intimidate a domestic violence victim is often not an easy determination that can be made quickly. As one male prosecutor explained, domestic violence cases that do not involve physical assaults are fraught with many problems: I don’t want to speak for others, but I think it’s uniformly felt that these cases are the toughest we deal with. On a provability level, on an ethical decision-making level, they just are the most problematic group of cases that we deal with, for a lot of reasons. Experienced criminal justice interviewees also noted that learning to recognize “true” domestic violence in the absence of physical assaults requires education and training, experience dealing with the public, and an interest in conducting thorough investigations, characteristics often lacking in inexperienced officers who frequently respond to domestic disturbance calls. The Safe Response to the Instant Case Domestic violence is widely recognized as involving patterns of behaviors. Expecting police officers to quickly identify patterns of past behavior represents a fundamental misunderstanding of how police officers respond to potential crime scenes. As one experienced officer explained, police officers generally believe that without an official prior record of domestic violence, they cannot take into account allegations of prior abusive behaviors:

We are all supposed know about the cycle of violence, but I’d be shocked if officers actually think about it going into a call. When our officers are going to a call, they are going to one incident. So in the mind of the officer, this is the only incident. What has happened before doesn’t play into this, because the only thing you can consider are prior incidents that have been reported to the police. The male or the female may say “this happens every day.” Or they may say “This has never happened before.” We can’t really take into consideration what people tell us because how do you know what to believe? Unless there is an official prior record, you don’t know who to believe. You have to respond to the one incident that is right in front of you. Individuals who are not law enforcement officers may believe that the police can take into account unofficial representations of patterns of behavior related to domestic violence or, conversely, representations that such patterns do not exist. A former domestic violence advocate described her belief that the statute gives police officers the tools to do an investigation prior to making an arrest: From my perspective, it’s not true that the police cannot try to identify the patterns of power and control. They have the tools to properly do that analysis. The statute does not tell them that they cannot take into consideration a pattern of power and control. But they often seem to think that they do not have the power to do an investigation. This disagreement may be at the heart of the problem. Legislators and advocates may have thought that the statutes gave officers the tools to thoroughly investigate these cases. However, from a law enforcement perspective, officers appear to believe they are extremely limited in their ability to actually investigate these cases unless a prior criminal justice record exists. Lacking an

adequate understanding of the dynamics of domestic violence and holding a belief they can only respond to the instant case, many officers may revert to an automatic arrest. The change in statutory language which was apparently intended to increase an officer’s ability to investigate cases involving family disputes seems to have had the opposite effect, making an automatic arrest in domestic disputes with property damage the norm. As one experienced police officer explained, since there is no disincentive to making an arrest that should not have been made, automatic arrest is the safe response: This has been pounded into their heads from the Day 1 - that when you add an intimate relationship to a call, it changes everything. Rather than trying to figure out who is the primary aggressor in the relationship, it is easier to just make an arrest and move on. Because you can say “I complied with the statute, I did my job, I made the arrest, and I’m not going to get in trouble for that.” I’ve never seen anyone get in trouble for making an arrest that probably should not have been made. Because you are acting on good faith at the time, from what you knew. And there are good-faith exceptions. Inexperience in the Criminal Justice System Experienced police officers and prosecutors also expressed concern that the officers who are most likely to respond to calls for service for domestic disturbances are ones who have recently gone through the police academy and who have little on-the-job experience. One longtime prosecutor articulated this commonly held perception: The male or female officers who respond to a lot of these calls for domestic disturbances usually are rookies. They don’t get the favorable shifts. And a lot of these disturbance calls happen in the evenings or on weekends. So they’re struggling with taking a step back and really looking at what they’re dealing with. I think a lot of these rookie officers

don’t have a good understanding of domestic violence and they don’t get adequately trained. They believe that if they have a domestic call on their computer, somebody’s getting arrested. They are not thinking that they need to figure out if a crime actually happened. And the Deputy [or Assistant] D.A.s who are handling these cases in County Court [Colorado courts of limited jurisdiction that generally handle misdemeanor cases] are also fairly inexperienced – we’re not talking about years of experience. So that dynamic probably doesn’t help a lot either. A non-attorney female employee of a prosecutor’s office described the typical experience most prosecutors in the lower courts have: We call the lawyers who work in DV Court “baby D.A.s.” A lot of them are pretty fresh out of law school. They have a little experience dealing with people because they started out doing MIPs [minor in possession of alcohol] and low level things like that. But in DV Court, they are making decisions that can really affect people for the rest of their lives, but they don’t have much experience at all. In most districts, the high volume of low level domestic violence cases that lack physical assaults requires a rapid disposition of these cases. Officers who feel that they must make an arrest if property is damaged may not have made the statutorily-required probable cause determination that the damage was due to domestic violence. Relatively inexperienced prosecutors, depending on police reports that are brief and that lack detail, may assume that because an arrest was made, probable cause existed for making the arrest and proceed with the case. The rapid nature of the process and the lack of review in many jurisdictions has contributed to the arrest, prosecution, and conviction of individuals who likely would not have been arrested and convicted in other states.

Lack of Understanding of the Legal Definition of Domestic Violence While employees of prosecutors’ offices often placed much of the blame for problems associated with the statutes on police officers, one such employee explained that arrest as the default response in domestic calls is understandable, given the statutory definition: I think it is difficult for officers because the broadness of the definition is so inclusive. If I found out that my husband was cheating on me, I don’t know what I would do, but I would be pretty pissed. I don’t know that I would break his phone if I saw something on it that told me he was cheating, but if I’m in a fit of rage, it doesn’t take a whole heck of a lot of break a phone. If I did that and law enforcement was called and I had to try to explain why I broke his phone, I would have a very difficult time not meeting one of those standards, especially “revenge.” And I know what words trigger an arrest. But there is so much more to domestic violence than just being outraged. It is so important that the police investigate and look for those other components of power and control. The ease with which one can be arrested in Colorado for a crime that is identified as related to domestic violence was pointed out by many criminal justice professionals. One participant stated that people she knows who work in the system describe some arrested persons as “offenders like me – I could be them.” Several interviewees stressed that many members of the public believe domestic violence involves a violent assault and do not realize language they use to describe their actions may trigger an arrest. Even in cases where the responding officer believes that an arrest should not be an automatic response and a probable cause determination must be made, it may be difficult to not view damaged property as either punishment or revenge, two motives that require an arrest. Twenty years ago the statutory definition was changed but little was done to inform the public

that behaviors traditionally not associated with domestic violence had suddenly become behaviors that could, and likely would, result in an arrest and conviction for domestic violence if the police are involved. More than twenty years later, the public is still largely ignorant that merely breaking an object when you are angry at an intimate partner can result in a domestic violence conviction. Many of the criminal justice professional interviewees recognized that members of the public, especially people with no prior interactions with the police, are woefully ignorant of the statutory definition. The offenders we interviewed who were arrested for minor property crimes with domestic violence enhancers all described being shocked when the officer informed them that they were being arrested for domestic violence since they also thought of domestic violence as involving physical assaults. These interviewees failed to comprehend how their actions could be interpreted as those of a domestic violence offender. All also described the arresting officers as apologizing to them for “having” to make the arrest. Some jurisdictions appear to try to weed out persons who have been arrested but who do not appear to be “real” domestic violence offenders, but the differential handling of these cases state-wide and the rapid processing of minor misdemeanor cases means that some individuals who should not have been arrested become convicted domestic violence offenders. Experienced criminal justice professionals expressed great unease regarding a net-widening effect related to the statutes. Two groups were of special concern to the experienced professionals we interviewed: individuals who act out in anger upon discovering their intimate partners have been unfaithful but who do not have any other characteristics of domestic violence offenders and domestic violence victims who respond in anger to their abusers and damage property. The concern regarding persons acting out after discovering infidelity was discussed above. The

following focuses on what is perhaps the most disturbing aspect of the net-widening effect: the arrest and conviction of domestic violence victims. An oft-repeated phrase attributed to victim advocates who resist changing the statutes is “If you want to catch tuna, you’re going to catch some dolphins.” This indicates a belief that the statutes allow for the arrest of more “real” domestic violence offenders but also implies a disregard for the effects that arrest and/or conviction for domestic violence has on someone who is a “dolphin” rather than a “real” domestic violence offender. As one experienced prosecutor stated, “That is an absolutely unacceptable response to a problem. You are conceding something that shouldn’t be conceded. Namely, that there are going to be injustices that don’t need to occur. We should be trying to fix injustices, not ignore them.” This attitude becomes especially problematic when the “dolphins” are domestic violence victims. Arresting Victims Experienced criminal justice personnel were quick to acknowledge that they knew of cases where domestic violence victims had been arrested. A prosecutor’s office employee described how domestic violence victims can be not only arrested, but also convicted: I know we are arresting victims. It is just so hard to figure out if this really is a one-time event or if there really is a pattern of these behaviors that have been going on and on. Because you know there is a breaking point for people. You could put up with emotional abuse for 20 years, and we don’t charge emotional abuse, and one day, you just reach a point where you break something and now, all of a sudden, you are the one who is in jail and the person who has been torturing you for all of those years is the “victim.” This concern was echoed by a former domestic violence advocate:

We would have victims calling us for shelter services and seeking support, even though, technically, they were the defendant in the case. We saw those victims who were arrested for property damage â&#x20AC;&#x201C; phones and that sort of thing. One case, as an example, was a woman who broke a phone. She discovered something on his phone and she had just reached her limit. She finally realized this relationship was not going work when she saw this stuff on his phone, so she broke it. He called the police, and she went off to jail. And she pled guilty the next day because she wanted to get out of jail and get to her kids. Multiple interviewees stated that victims may be willing to quickly accept guilty pleas in exchange for avoiding a lengthy justice system process. Persons arrested for domestic violence in Colorado remain in jail until they appear in court before a judge or magistrate. Many may believe they do not need an attorney if the underlying offense is a minor property crime, especially if they do not fully comprehend the long-term effects of a guilty plea. If they remain in jail, they are eligible for a public defender, but persons with little experience with arrest and jail may be eager to get out, especially if they have children or jobs. Prosecutors are ethically obligated to verify that unrepresented offenders understand the consequences of guilty pleas and judges also should ascertain that individuals are fully aware of the magnitude of a guilty plea. However, but it was apparent from our interviews with arrested individuals that the rapid processing of these types of cases and a lack of understanding of the long-term effects of a domestic violence conviction contributes to a willingness to quickly accept a guilty plea, since the underlying crime is just a minor misdemeanor or municipal property crime. Several criminal justice professional interviewees also noted that females, especially those who lash out in anger rather than as an intentional pattern of control and intimidation, are

quick to take responsibility for damaging a piece of property. A former domestic violence advocate described this phenomenon: A really common characteristic of domestic violence victims is that they want to tell what they did. So if they broke something, they will admit it immediately. Even if they are not the “offender” they will often want to tell us what they did to “cause” the problem. So I have had a number of police officers express concern that they are arresting victims, but they feel that they have no choice. When they tell the officer that they broke something on purpose and they are in an intimate relationship, the officers generally feel like they have to make an arrest. An employee of a prosecutor’s office who also had experience in victim advocacy further described how chronic domestic violence offenders may know how to avoid arrest while victims generally lack such knowledge: For officers, the “punishment” and “revenge” pieces rather than the other elements in the statute are easy to see, because they can put a label on it. It is easy to identify those who just do it once. The chronic DV offenders who are good at manipulation are harder to spot while the property damage is much easier to spot. So police officers see it as “That IPhone – that is worth $199 – let me write that down. The door is worth $50 – let me write that down.” What we sometimes see are victims who just blow up and then basically call the police on themselves. And even if they describe how they are being emotionally abused and that they are afraid to leave the house, you can’t put a price on that so it doesn’t make it into the affidavit. But the victim ends up here as a domestic violence offender.

When victims in intimate relationships admit to damaging property and officers feel they must make an arrest, prosecutors have few options available to them, as described by an employee of a District Attorney’s office: When police officers arrest someone because they think that the prosecutor or the judge will figure it out, they don’t realize that prosecutors have legal requirements that are imposed on us on how to handle a case that comes in as domestic violence...We’re stuck with what the legislature has told us we are required to do. They don’t give us the discretion to do what we think is right. So a problem that started with the officer not knowing how to deal with the issue precipitates to us having our hands tied because we are obligated by statute to pursue these cases as domestic violence or drop them entirely. Ownership of the Property – Does it Matter? Linking a domestic violence enhancer to a minor property crime not only has led to the arrest and conviction of individuals who are not “real” domestic violence offenders, it has likely led to the police missing cases that truly do involve domestic violence. Several officers commented that “it is not against the law to break your own stuff.” Since domestic violence within a marriage can result in destruction of marital property, officer interviewees often disagreed over how to handle these types of cases. Some officers believed that any damage to property required an immediate arrest, regardless of the ownership of the property, while others, even those who thought that damage to property required an automatic arrest, stated that you cannot arrest people for damaging their own property. Unfortunately, marital property may be viewed as falling into the category of “one’s own stuff.” Even if it is apparent that the reason the property was damaged was to intimidate, frighten, and control the intimate partner, some officers stated that to make an arrest for property damage, the property must belong to someone else.

These two extremes in interpreting the statute – that any damage to property in an intimate relationship is domestic violence and that the property must belong to someone other than the person who did the damage regardless of motive – clearly demonstrate that using property damage as a proxy for emotional abuse has not achieved the policy goals the legislature envisioned when the statutes were adopted and signed into law many years ago. Long-Term Stigma for “Dolphins” For many minor misdemeanants, a conviction may not have serious long term effects. However, a guilty plea and conviction for domestic violence carries a substantial penalty, since, in addition to mandatory domestic violence offender treatment and probation, offenders assume the significant lifetime label of “domestic violence offender.” Convicted domestic violence offenders cannot have their records sealed in Colorado. A domestic violence conviction will always appear on a background check. Employers often cannot or will not consider hiring a person who has a domestic violence conviction. Landlords may be reluctant to rent to convicted domestic violence offenders. A domestic violence conviction may place a parent at a distinct disadvantage in divorce negotiations that involve parenting time. Such a conviction also carries a lifetime ban on the legal ownership of firearms. These restrictions may be appropriate for “real” domestic violence offenders but they are not appropriate for “dolphins” who are arrested simply because responding officers believed any property damage in an intimate relationship required an arrest. The realization that many employers will not or cannot legally hire persons convicted of domestic violence related crimes came as a surprise to several of our offender interviewees. When they accepted guilty pleas, they had no idea that this conviction would severely limit career options. Only long after the fact did they comprehend the full effects of their decisions to

accept guilty pleas rather than to fight the charges in court, a decision that all of these interviewees regretted. Since Colorado does not allow domestic violence convictions to be sealed, these convicted offenders will face these challenges for the rest of their lives. Being labeled a domestic violence offender can also result in a great deal of harm to one’s self respect, especially for individuals who adhere to the norms of conventional society in which persons who commit domestic violence are viewed in an extremely negative light. A common theme in the accounts of persons arrested for misdemeanor property damage charged as domestic violence was that of a spoiled identity (Goffman, 1963), which included descriptions of stigmatization, embarrassment, and ongoing fear that if others find out about the convictions, they will be viewed as violent batterers. The focus of the current analysis is on the domestic violence statutes and criminal justice professionals’ interpretations and perceptions of these statutes, but it is worth noting that the arrested research participants described situations similar to those voiced by criminal justice professionals. All arrested interviewees described arguments that escalated, often involving alcohol and/or based on a discovery of infidelity. They described being outraged at their partners, breaking or damaging property, and then calling the police themselves because they were afraid of their partners’ reactions. All described in detail the embarrassment and humiliation from being handcuffed, arrested, and spending one or more nights in jail and the fear that others will find out about their arrests for domestic violence. Policy Implications The expansion of the legal definition of domestic violence and the restriction of professional discretion for officers and prosecutors, while apparently drafted with the best of intentions, has not had the desired effect. The specific language that contains “punishment and revenge” appears to be especially problematic, since it likely shifts the focus from looking for

patterns of control and intimidation to including what could easily be acts of frustration or angry responses to discovered infidelity. Rather than providing police officers with investigatory tools and rigorous education on the dynamics of domestic violence in the absence of violent assaults, the legislature created a complex system of statutes that has unintentionally encouraged police officers to develop an automatic mandatory arrest response to domestic dispute calls for service. As many criminal justice professional interviewees pointed out, the majority of calls for domestic disputes involve “real” domestic violence. While the types of cases we studied are not the norm, they are not rare. As many interviewees also noted, the times have changed while the statute has not. The abovementioned common description of broken smartphones due to the discovery of infidelity was not a problem when the statutes were drafted more than twenty years ago. Interviewees also lamented that many citizens may call the police apparently hoping that the police will mediate an argument. Members of the public are largely unaware that for many officers, a call for a domestic dispute will result in an arrest, sometimes of the person who called the police. This is a clear indication that many members of the public still have little knowledge of laws related to domestic violence. The statutes have created situations where police officers who do not have a good understanding of the dynamics of domestic violence are afraid to not make an arrest, even if the incident does not appear to be related to “real” domestic violence. Prosecutors also feel their hands are tied. Once these cases come into the system through an arrest identified as related to domestic violence, they are statutorily mandated to proceed with the domestic violence case or drop the case entirely; there is no option to merely drop the domestic violence enhancer. While no interviewees stated that prosecutors may be reluctant to drop these types of cases for political reasons, concern for a public perception of being “soft on domestic violence” must be

considered. In addition, the rapid processing of the large volume of misdemeanor domestic violence cases appears to have resulted in significant variability in the resolution of cases in which no probable cause for an arrest is evident. In some jurisdictions, efforts are made to avoid these types of convictions, while in others, no review process exists. As a result, whether or not a person becomes a convicted domestic violence offender in such cases may depend less on the circumstances of the incident and more upon the jurisdiction in which the incident took place. In 1992, two years prior to Coloradoâ&#x20AC;&#x2122;s adoption of the new domestic violence statutes, Lawrence Sherman, the primary investigator of the study that started the mandatory-arrest ball rolling, the Minneapolis Domestic Violence Experiment, gave recommendations to policy makers and police administrators (Sherman, Schmidt, & Rogan, 1992). His first recommendation was to repeal mandatory arrest laws, since in some cases, a mandatory arrest actually increases the risk of violence for victims. The second recommendation was that rather than requiring an arrest for every misdemeanor, legislators should adopt a Wilsonian approach for statutes that limit discretion (Ingram & Schneider, 1990) and statutorily mandate that each law enforcement agency develop its own list of approved options for the use of police discretion in domestic violence cases. The final recommendation was that regular and detailed domestic violence training based on the latest research findings should be mandatory for all law enforcement agency personnel. By the time Colorado adopted its current statutes, domestic violence researchers had already recognized that a blanket response to the complex problem of domestic violence was ill-considered. Yet, the statutes became law and more than twenty years later, the laws in Colorado remain in effect. Colorado policy makers have resisted making significant changes to the statutes, despite little evidence that mandatory arrest is effective in reducing recidivism, especially for individuals

who do not have a stake in conformity (Mears & Visher, 2005; Schmidt & Sherman, 1993). The claim that mandatory domestic violence offender treatment programs lead to long-term offender behavioral change also has not been supported by research findings (Babcock & Steiner, 1999; Babcock, Green, & Robie, 2004). Levels of cooperation and collaboration between criminal justice agencies and advocacy groups appear to vary widely across the state, but what is often evident is a â&#x20AC;&#x153;blame game,â&#x20AC;? in which the police and prosecutors blame the legislature for creating statutes that are difficult to understand and implement. At the same time, victim advocates who pushed for adoption of the current legislation and who are resistant any changes blame the police for failing to thoroughly investigate calls for domestic disputes and accurately classify abusers and victims. The Colorado legislature, by creating statutes that appear to over-simplify domestic conflict involving damage to property, may have unwittingly instilled a rigidity of mind in persons who work in the criminal justice system. As Zerubavel (1991) notes, such rigidity of mind may be comforting to some, especially when trying to make sense of complex phenomena that may not have clearly delineated boundaries. This appears to have happened in many places in Colorado where an automatic arrest for any domestic disturbance is routine. We have noted that once an arrest is made, it is difficult to derail the process. As time goes by and as experienced criminal justice professionals with more nuanced understandings of domestic violence leave the profession, one must be concerned that those who remain may possess such a rigidity of mind that they do not question whether or not an arrest is appropriate in every domestic disturbance call for service. Unless the statutes are changed to allow for flexibility and a concerted effort is made to provide comprehensive and ongoing training on domestic violence

for peace officers and prosecutors, we should expect arrests and convictions of “dolphins” to continue. Conclusion The current study has limitations, of course. Although the sample size was not large, we reached saturation, since the themes identified in our findings came not only from multiple interviewees but from members of different populations. A problem with our sample is that all who agreed to be interviewed were critical of the statutes. Even officers who believed that any property damage within an intimate relationship mandated arrest did not like making arrests for cases that appeared to be very minor, such as for broken cell phones or television remotes. The length of time required to transport and book a suspect – time that they felt would be better spent on other policing duties – was the primary concern for these individuals. We did not interview any current advocates who likely would have different perspectives on maintaining the statutes as they are. However, two of our participants had worked in victim advocacy and provided us with insights into the resistance to change from an advocacy perspective. While we frequently refer to the influence of victim advocates in the framing of the 1994 statutory language, this representation is based on interviewees’ recollections rather than on an analysis of the legislative history. From a policy analysis perspective, conducting a detailed analysis of committee meeting transcripts and identifying the framing process and special interests involved in developing the statutes could prove useful (Dür & de Bièvre, 2007; Ingram & Schneider, 1990; Schneider & Ingram, 1993; Schneider & Ingram, 1997). It is unclear if such information exists in the legislative archives, but there is little doubt that influential, behind-thescenes conversations with legislators were not recorded and are lost to time.

Future research could focus on the use of aggression by females in intimate relationships. Straus’s (1993) findings that women use aggression as often as men have been used by some to argue that women are as violent as men. This assertion fails to take into account Strauss’s (1993) point that serious injury and lethality significantly differ between male and female aggressors. This raises the question of appropriate behavior in an intimate relationship. If a woman can be viewed as justified in using minor aggression, as long as it is not done to control and intimidate, will men also not be held accountable? This is perhaps a “slippery-slope” fear that keeps many victim advocates from being willing to agree to a change in the statutes. Despite these concerns, legislators should be troubled by how the statutes appear to be interpreted. It is clear that many domestic violence victims have been arrested and convicted over the years. If there is no interest in changing the statutes, the legislature should at least consider allowing a process to revisit some of these convictions for minor crimes in which persons who were not “real” domestic violence offenders were arrested and agreed to plead guilty. If these individuals have had no further contact with the criminal justice system, it seems reasonable to provide a remedy. Sealing these records could allow individuals who should not have been arrested to regain the rights denied to them by a deeply flawed process.

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