Lawyers Manual - Unified Court System

11
The Family Protection and Domestic Violence
Intervention Act of 1994:
Mandatory Arrest Ten Years Later
by Lisa Fischel-Wolovick
New York State’s Family Protection and Domestic Violence Intervention Act
of 1994 (DVIA) made radical revisions to law enforcement’s approach to
domestic violence incidents. 1 The DVIA, which established mandatory arrests in
domestic violence cases, requires the police to make warrantless arrests when a
duly served order of protection has been violated or when probable cause exists to
believe that either a felony or misdemeanor has been committed. 2 Other provisions,
developed after extensive hearings held throughout New York State, provided
for training, domestic incident reporting, and a centralized state-wide registry of
protective orders to assist police in enforcing violations of protective orders.
The use of mandatory arrest generated concern as dual arrests and even
retaliatory arrests emerged as an unintended consequence of the DVIA. Further
questions arose as to the efficacy of mandatory arrest as a response to domestic
violence. One critic of mandatory arrests has argued “. . .that such policies as
mandatory arrest, prosecution, and reporting, which have become standard legal
fare in the fight against domestic violence. . . categorically ignore the battered
woman’s perspective.” 3 This same critic has further contended that “. . . these
policies fail to provide battered women with choices about their remedies.” 4
Before deciding whether or not mandatory arrest is an essential and
appropriate response to domestic violence, it would be wise to consider the
historical failure to address this serious public health and safety issue. As a result
of law enforcement’s failure to arrest and prosecute perpetrators of domestic
violence in the past, criminal behavior appeared to be condoned or ignored by the
community. This discussion will address how mandatory arrest and the related
provisions of the DVIA provide an informed response to the concerns of battered
women, law enforcement, and the courts. This discussion will also address how
mandatory arrest has made significant inroads in reducing incidents of domestic
violence by specifically reducing recidivism, when arrest is combined with the use