Lawyers Manual - Unified Court System

Evolution of the Justice System’s Response 3
would often fail to protect — or rule against — victims and their children after
they took the risk of revealing the abuse.
In 1997, the Legislature acted to address a problem that arose after the 1994
passage of the mandatory arrest law. Under mandatory arrest, police officers
began arresting both parties in a domestic dispute if both alleged or showed
physical signs of injury. This meant that victims frequently were arrested (or
threatened with arrest if they pursued charges against their abuser) because
either they had fought back to defend themselves or their abuser made a false
allegation against them. In response, the Legislature enacted what is commonly
known as the “primary physical aggressor law.” 4 This law requires police
officers to attempt to determine which of the parties in a misdemeanor-level
domestic dispute is the primary physical aggressor and arrest only that party.
Police are mandated to consider specific factors such as a prior history of
domestic violence, the comparative extent of injuries to the parties, and whether
one of the parties acted defensively. The problem of dual arrest persists but has
been at least somewhat alleviated by the primary physical aggressor law.
In 1999, New York joined all of the other states in enacting anti-stalking
legislation. 5 While hardly progressive — New York was the last state to take
action against this particular type of criminal activity — New York did benefit
from seeing what other states had done and crafted a bill that addressed a broad
range of stalking activities while avoiding Constitutional problems. The New York
anti-stalking law was a big advance because it recognized the lived experiences
of stalking victims, most of whom are women and most of whom are stalked by
current or former intimate partners. The law had long understood the fear and
harm experienced by victims of classic assault cases like barroom brawls. Now
the law had evolved to take into account the unique fear that stalkers invoke and
the subtle and insidious tactics stalkers use against their victims.
Changes in the structure of the court system paralleled substantive law
changes in the arena of domestic violence. The 1990s saw the introduction of
specialized domestic violence courts. Pilot domestic violence courts sprang up
in New York in Criminal Court and in Family Court. Ultimately, the model of
the “integrated domestic violence court” emerged, through which all issues —
criminal and civil — confronting a family impacted by domestic violence would
be heard by one judge. These courts continue to evolve and, under the leadership
of Chief Judge Judith Kaye, are planned for every county in New York.
The development of domestic violence courts signaled an enormous shift
in how the justice system viewed its role in responding to domestic violence.
Previously, there was a pervasive sense that courts were compromising their