The story of mandatory arrest laws — now enacted in many states around the country — begins in Duluth, Minnesota, in 1980. At the time, advocates and domestic violence victims nationwide were frustrated that intimate partner violence was largely considered a private family matter by the community, including police.
As a 2020 article by The Atlantic put it: “A 1975 training bulletin issued by the police department in Oakland, California, advised that, instead of making an arrest, officers should ‘encourage the parties to reason with each other.’ District attorneys, meanwhile, resisted prosecuting abusers, often because victims — many in danger of further attacks — were reluctant to pursue charges.”
The article also noted that a 1964 Archives of General Psychiatry report asserted that “spouses of abusive men tended to be ‘aggressive, efficient, masculine and sexually frigid.'”
In an effort to reform law enforcement response to domestic violence, the Domestic Abuse Intervention Programs (DAIP) was created by activists. DAIP partnered with 11 local agencies to establish police training, prosecutorial and judicial guidelines, support services for victims, and counseling for batterers. This became known as the “Duluth Model.”
With DAIP’s insights, Duluth enacted the nation’s first mandatory arrest policy for misdemeanor assaults in 1981. This finally began to shift public perception of domestic violence from a personal family problem to a criminal one.
A grant from the National Institute of Justice (NIJ) enabled a criminologist to conduct an experiment with the Minneapolis Police Department from 1981 to 1982 to study the deterrent effects of police responses to domestic violence. Misdemeanor domestic violence cases were assigned to arrest or advise. For six months, 34 police officers stayed in touch with the parties to ascertain any continued domestic violence in 205 cases. The experiment revealed that arrest had the strongest deterrent effect. Subsequent experiments — with large sample sizes — were conducted in Miami, Atlanta, Omaha, Milwaukee, and Charlotte.
This led to mandatory arrest laws being enacted in several states, including Minnesota.
Ellen Pence, who died in 2012, was the leading activist of the Duluth Model. As she would tell staff members, according to The Atlantic: “When a man slaps a woman, it doesn’t happen in a vacuum: It’s a historical act.”
Pence acknowledged that men in northern Minnesota had a lot of stress, especially if they had been impacted by the collapse of the mining industry — such as poverty and addiction. But she also indicated these men are not victims of anything other than male entitlement, from a patriarchal system, if they believe they have the right to use violence against a partner.
In the early 1990s, the movement to address domestic violence had another important ally in Minnesota. Northfield librarian Sheila Wellstone had a national platform after her husband Paul became a U.S. Senator. She began to host town hall meetings around the state to talk about intimate partner violence with survivors, advocates, educators, clergy, medical professionals, police officers, and general community members. Many women spoke publicly for the first time at these meetings about the abuse they faced.
What she learned in private and public conversations from survivors was that women in abusive relationships tended to have no control over family money, and tended to be isolated from family and friends for fear of partner violence. Marcia Avner, who worked with Sheila Wellstone at listening events, explained in “Be the Change: The Paul and Sheila Wellstone Story” (published by Minnesota Women’s Press publisher Mikki Morrissette in 2012): eventually “a woman would start to believe that she was doing something wrong. That it was her fault that she was getting hurt. That she needed to try to make the relationship work by doing everything the abuser told her to. She thought it would eventually help keep things calm by not fighting back.”
By 1994, the Wellstones had worked together to draft and pass the national Violence Against Women Act at the federal level. It provided funding for safe shelters were women and their children could go, and funds to prosecute domestic violence lawsuits. They also sought funding to help children who witnessed abuse in the home.
As Sheila Wellstone said in a speech in 1998: “A community must send a message to a woman that she is not to blame, that they do believe her, and that domestic violence and other forms of violence against women will not be ignored and that it will not be tolerated.”
A 2017 report written by Melissa Scaia, of Minnesota-based Global Rights for Women (published by the National Clearinghouse for the Defense of Battered Women) included the voices of women survivors of domestic violence who had been arrested. “In Their Own Words: Victims of Battering Talk About Being Arrested and Convicted” opens with this introduction to why the problem exists: “As part of their efforts to cope and survive, many victims of battering resist their assailants by fighting back. … As one woman in a focus group for women who had been arrested for using violence against their partners said about her use of force, ‘I was just trying to get myself and my kids through what was becoming an intolerable situation.'”
A 2021 report released in Connecticut found that — similar to Minnesota and states across the country — Black and Hispanic women made up about 25 percent of the state’s female population but represent about 53 percent of domestic violence arrest cases for adult females in 2020.
Scaia’s report detailed the results of that kind of misuse of the intentions of the mandatory arrest law. It was based on interviews with 43 women in Minnesota and Wisconsin who had been arrested and convicted due to mandatory arrest laws “that don’t address the circumstances in the lives of victims of battering.”
Findings revealed a few themes:
- When a battered defendant was arrested in place of or alongside her abuser as a response from law enforcement, it increased the abuser’s coercive control if the woman was convicted, increased her financial dependency on the abuser, and made it difficult to maintain housing.
- The defendant who is fighting back against a specific person is treated by “the system” as a threat to the public, and very few people in the criminal legal system understood the circumstances of the women’s lives because of a “one size fits all” approach.
Many reported they were afraid to fight back after a conviction, especially if it separates them from children in the home. One woman indicated that if she even raised her voice in an argument with her partner after being released he would indicate “you are creating fear in me by raising your voice. I should tell the judge that.”
Others reported feeling harassed by partners who got possessive if she talked on a phone with a man, or was at a friend’s house. “Because I am on probation, I feel like now I can’t even get mad or raise my voice at all because he threatens to call the police or my probation officer. If I end up in jail then my kids are alone with him and I cannot have that.”
One said that she got hundreds of text messages a day from an abuser after she got out of jail asking if she was ready to come home.
Another violated probation by drinking. Her husband was violent that night, also drinking, and broke her jaw bone. “I called the police that night. I got taken to jail just for the fact I was on parole and drinking. In my mug shot, I look all beat up.”
Others report they lost subsidized housing after their arrest and conviction. A woman described how tired she was of background checks by landlords. “I even had one landlord come back and look me in the face and say, ‘You even look violent.’ Part of me understands why they do the background checks, but the problem is that this holds me down. I have never been violent to anyone but him, and he has been violent to every woman he has been with, yet he still keeps his apartment and I am the threat?'”
Women described use of a weapon as an equalizer in an abusive situation. “He is 262 pounds and 6 foot 2 inches. He knew I was going to leave him so he was out of control. I grabbed a knife so I could leave. I cut him in the arm and he got 5 stitches. He called the cops on me and they didn’t hear the whole story. Red marks on my neck and I had a black eye from him. I got a felony first degree assault.”
Some indicated their public defender suggested they plead guilty, instead of going to trial, in order to more quickly get out of jail and back to their kids.
Many reported they had probation officers who were the most supportive person in the process. One reported her probation officer was the only one “who wanted to hear my side of the story and not just what the police wrote in the police report. I told her everything and I felt like she listened and was there for me.”
Nearly 75 percent of the woman interviewed said they would not call the police again in the future, even if they needed help for themselves.
One solution raised was the value of support groups for victims of abuse.
- “One time I came to group with bruises on my arm. They noticed it and helped me. I never went home after that group ever again.”
- “Before my court-ordered group I just thought when he punched me in the fact that was abuse. Now I see so many other things that have happened to me as abuse.”
The 23-page report suggested several solutions, such as:
- Develop law enforcement policies and protocols that contextualize women’s use of violence when they are fighting back. Consider policies and protocols that require a self-defense determination test.
- Consider adopting policies and protocols that allow for pre-trial diversion of cases, such as “At a Crossroads: Developing Duluth’s Prosecution Response to Battered Women Who Fight Back,” developed by Duluth’s attorney’s office.
- Organize the advocacy community to coordinate with law enforcement to meet with battered women who get arrested as soon as possible.
- Develop nonviolence groups that allow for people to reflect on the violence they have experienced and used.
When Survivors are Criminalized: conversation for MN advocates with National Clearinghouse for Battered Women (video)
Securing Justice for Criminalized Survivors: conversation with New York Coalition, Women’s Justice Institute (Illinois), and Professor Jane Anne Murray, director of the Clemency Project at University of Minnesota, about the need for laws that address criminalized survivors (video)