Presumptive Arrest in Partner Assault:
Use of Discretion and Problems of Compliance in the New
Zealand Police
Jenny Cross
Research Advisor, New Zealand Police
Greg Newbold
University of Canterbury, Christchurch, New Zealand
Contact Details:
Associate Professor Greg Newbold
School of Sociology and Anthropology
University of Canterbury
Box 4800,
Christchurch
New Zealand
Ph. +64 3 3642973
greg.newbold@canterbury.ac.nz
1
Presumptive Arrest in Partner Assault:
Use of Discretion and Problems of Compliance in the New
Zealand Police
Since pro-arrest policies in domestic violence became popular in the
United States in the 1980s, numerous Western countries have followed
suit. In most cases, research has shown that implementation of the
policies has fallen short of expectations with arrest rates that are
surprisingly low. In New Zealand, pro-arrest strategies have been
employed since 1987 and results have been similar. This paper argues
that one of the reasons for failure in New Zealand (and probably
elsewhere), is that the complexities of domestic violence situations
makes pro-arrest difficult to apply in practice. Moreover, in order to
protect themselves from official criticism for deviating from policy,
frontline police often file incomplete or inaccurate incident reports.
This makes it hard to determine exactly how well the policy is being
implemented and whether or not it is working.
Violence within the home has long been recognized as an endemic aspect of domestic
dynamics, but its identification as a problem requiring serious police involvement is
relatively recent (Finn et al, 2004; Melton, 1999, pp.2-4). From about the mid-1960s
onward, the arrival of the so-called ‘second wave’ of feminism highlighted a number of
gender issues, one of which was violence between intimates (see, eg. Martin, 1976;
Steinmetz, 1977; Straus, Gelles & Steinmetz, 1980; Walker, 1979). As a result of this
pressure, though direct lobbying and through the courts, women began to demand a
change in the approach that police had traditionally taken in domestic matters and to
demand greater protection (Buzawa & Buzawa, 1990). Debate over how to achieve this
led, in the early 1980s, to a number of police response experiments in the United States
and Britain. Publicized internationally, the outcomes had a dramatic effect on the way
police in western jurisdictions react to family violence.
2
As a result, from about 1980, ‘zero tolerance’ or ‘mandatory arrest’ tactics, requiring
arrests in domestic assault cases, and ‘pro-’/’preferential’/’presumptive’ arrest
strategies which permit a degree of discretion, started becoming common (Felson and
Ackerman, 2001, p.657; Hirschel et al, 2008; Walker, 1992). As we shall see, despite
early success, the effectiveness and practicability of proactive responses soon became a
matter of further contention. This paper examines the case of New Zealand, where
presumptive arrest policies have been in place since the 1980s. Its primary purpose is to
describe the process by which such policies were adopted in New Zealand and to
discuss some of the problems and issues that have arisen as a result.
Traditional Domestic Violence Policing
Before 1980 the New Zealand Police took the minimalist track in dealing with family
disputes that was followed in other countries (see Chaney and Satzstein, 1998; Dobash
& Dobash, 1979; Edwards, 1989; Eigenberg, Scarborough, & Kappeler, 1996;
LaGrange, 1993, pp.146-8; Mugford & Mugford, 1992, pp.328-331; Smith & Gray,
1983). Domestic violence-related arrests were rare, with police tending to lay charges
only when circumstances were clear, an assault was serious, and a victim could be
relied upon to testify. Female complainants were seen as temperamental and unreliable
(Ford, 1993; Marsh, 1989, p.9). In 1964, the Police General Instructions warned about
the propensity of drunken wives to lodge complaints which they would subsequently
withdraw, and noted that in any case, the majority of assaults in the home were minor
(Butterworth, 2005, p.163).
The women’s movement played a significant role in changing this. In New Zealand, a
highly influential radical monthly called Broadsheet commenced in 1972 and soon
3
became the central voice of feminist politics. Rape, exploitation and woman-beating
began to appear as common themes. In 1974, reflecting rising awareness, the first of a
network of women’s refuges was established, four years later the first rape crisis centre
appeared, and in 1985 rape within marriage was outlawed.
Traditional approaches to domestic violence were slow to shift with police continuing
to mediate in family disputes. In 1979, following American precedent, Crisis
Intervention training began within the police, underlining the policy of conciliation and
arrest as a last resort. But some sensational spousal murders in the 1980s highlighted
family violence and the need for greater proactivity (viz Else, 1980). Writing about one
high-profiled case in Broadsheet, for example, where a woman had been killed despite
the police knowing that her husband was armed and dangerous, Crossley (1983, p.15)
argued that neither the courts nor the police treat domestic violence seriously and that
they fail [or at least, have little power] to take actions necessary to protect potential
victims.
In the early 1980s the first of several legal measures was taken. The Domestic
Protection Act 1982 contained provision for court-ordered non-molestation and nonviolence orders, the latter of which empowered the police to detain for 24 hours without
charge, any person who had breached a non-violence order. However s.10 of the act
gave police considerable discretion about whether or not to arrest in the first place,
urging them to apply the law with caution.
The Minneapolis Domestic Violence Experiment
4
In the early 1980s a series of successful American lawsuits against police for failing to
provide protection from assaultive partners (LaGrange, 1993, pp.146-7; Melton, 1999,
pp.4-5) added weight to feminist pressure, abetted by a 15-month experiment in
domestic violence policing which commenced in Minneapolis, Minnesota, in 1981.
Funded by the National Institute of Justice, the Minneapolis Domestic Violence
Experiment tested the effectiveness of police responses to domestic offending. On the
basis of random colour-coded pads, officers in the Minneapolis Police Department had
to arrest, separate or mediate. The effect was determined through analysis of
subsequent official reports and follow-up victim interviews. In 1984, when the initial
findings were released, it appeared that the arrest of offenders had led to significantly
lower recidivist rates than either of the two alternatives. Thus, the study concluded that
arrest was the most effective response (Sherman & Berk, 1984).
Six government-funded replication studies of the Minneapolis findings disputed these
results, finding inter alia that arrest is only effective in deterring further abuse in the
short term, that it deters the employed better than the unemployed, and that short arrest
produces different outcomes to full arrest. (viz. Berk et al, 1992; Dunford, Huizinga &
Elliott, 1990; Hirschel & Hutchinson, 1992; Pate & Hamilton, 1992; Sherman et al,
1992). The outcomes of these replications were mixed and at times contradictory, and
subsequently came under attack by Zorza (1994). However by the time the last of the
follow-up studies was finished, significant changes to policing policy had begun. In
America, by mid-1983, 33 states had already introduced statutes that encouraged arrest
while six had a mandatory arrest policy (Zorza, 1994, p.936) and after Minneapolis
many more followed (Buzawa & Buzawa, 1990; Gelles, 1993). By 1997, 48 out of 50
5
states had preferential or mandatory arrest policies (Melton, 1999) and legal provision
for offender-victim non-contact orders as well (Dugan, 2003, p.287). In England,
influenced by American trends, a working party on domestic violence was set up by the
London Metropolitan Police, which in 1987 developed new guidelines for officers,
including presumptive arrest irrespective of a victim’s wishes (Edwards, 1989, p.198).
Similar steps were taken in Australia (Mugford & Mugford, 1992, p.331-336).
In New Zealand too, the police quickly began considering a pro-arrest policy. In 1985 a
pilot study by Ford (1985), largely modelled on Minneapolis, tested the effects of proarrest. Here, officers were instructed to arrest in all cases of evidential domestic assault
unless there was good reason for not doing so (Ford, 1986, p.37). The outcome was a
sharp increase in arrests and general support among officers for pro-arrest. As a result,
in 1987 the Police Commissioner mandated arrest in all domestic cases where evidence
of assault or breach of a non-violence order existed, unless the assault was extremely
minor or there were strong extenuating circumstances. The two principles enshrined in
the new policy were: 1. Protection of victims; 2. Holding offenders accountable via
arrest (Schollum, 1996). The policy of 1987 thus signalled a major change in the way
domestic violence was handled in New Zealand: that is, domestic assault was now to be
seen as a criminal act, no different from any other assault.
But there were problems. The training package that accompanied the new policy was
only employed by some police departments and where it was used it was applied
inconsistently, with many officers continuing to treat domestic assaults as non-criminal
events. Moreover, the requirement for victims to be referred to social service agencies
was often ignored (Ford, 1993; Marsh, 1989). In the United States at that time, police
6
were also showing reluctance to use the referral option (Walker, 1992), which was
particularly so with older and more experienced officers (Belknap & McCall, 1994). In
both countries, therefore, old policing traditions proved resistant to change.
The Hamilton Abuse Intervention Pilot Project
Following these discouraging outcomes, in 1991 another project was launched in an
attempt to establish a coordinated approach involving police, courts, and victim-support
agencies. Known as the Hamilton Abuse Intervention Pilot Project (HAIPP), the
experiment replicated the Duluth Domestic Abuse Intervention Project (DAIP) which
had taken place in Minnesota, in 1981. The focus of DAIP was protecting victims from
future violence through a combination of legal and non-legal sanctions. Pro-arrest was
an important part of the strategy.
The first report of HAIPP, released in 1992, indicated good police cooperation, with a
significantly greater arrest frequency. However, it was subsequently found that a
number of non-arrest cases had evaded the notice of researchers and were absent from
the results. Furthermore, arrest rates in different sections of the Hamilton police
revealed that the policy was still applied unevenly. In fact, most of the time offences
were not identified and details were not formally recorded. This was particularly
common with addresses regularly attended by police (Busch et al, 1992; Robertson &
Busch, 1993).
Later Policy Directives
Addressing the disappointing findings of the HAIPP survey, a policy directive in 1992
emphasized pro-arrest even further, by requiring arrests whenever an assault had been
7
disclosed or evidence of an assault existed, irrespective of whether there was an official
complaint (Ten-One, 22 May 1992, p.11). However, although later analyses found
noticeable increases in arrests, the policy continued to be applied inappropriately in
some departments, with poor supervision of officer compliance (Ford, 1993; Robertson
& Busch, 1993; Schollum, 1996).
As a result, in 1993 there was yet another policy refinement, stressing for the first time
a multi-agency approach to domestic violence alongside pro-arrest. This was an
important strategic development, acknowledging as it did that social service agencies
are better equipped than the police to address the issues behind family tensions and
need to be incorporated into any response policy (Melton, 1999, pp.14-16; Zorza, 1994,
p.985). The emphasis was to refer not only victims to other agencies, but also the
perpetrators. Police victim support coordinators were appointed to assist in the process.
These steps were outlined in the police service journal (Ten-One, 27 Aug. 1993, p.11)
in an attempt to advertize the new direction that domestic violence policing was taking.
To assist with monitoring, in 1994 a series of codes was created on a set of new forms
known as POL 400s, which now had to be filled in whenever a violent domestic
incident was reported. This is the system in use today. Categories such as K1 (domestic
incident,
no
violence),
K6
(domestic
violence,
no
arrest
due
to
minor
offence/insufficient evidence) and K9 (violence identified; arrest made), assist in the
recording process. Excluding K1 incidents, which do not go on the POL 400s, details of
all other incidents (such as victim/offender information, who reported the incident, and
presence of any court orders, physical injury, etc) are entered into the family violence
8
database. Thus a case file is compiled which can assist the police response strategy in
the case of future incidents.
The Domestic Violence Act 1995
In July 1996, in recognition of the wide and varied nature of domestic violence, the
Domestic Protection Act 1982 was repealed by the Domestic Violence Act 1995. This
act has been seen as a significant step towards combating the realities of domestic
violence in the modern era. From the point of view of the current discussion, a
significant feature of the act is that it expands the definition of ‘domestic’ to include
any persons in a close personal relationship, whether living together or not, and any
persons sharing the same accommodation, whether in a relationship or not. A second
important feature is the creation of protection orders, which prohibit a respondent from
contacting or harassing an applicant and from possessing any firearm. A temporary
protection order can be made by a court without notice and unless legally challenged,
becomes permanent after three months. Any person breaching a protection order can be
arrested without a warrant (see Newbold, 2000, pp.128-9). The provision in the
Domestic Protection Act allowing offenders to be detained for 24 hours without being
charged is repealed. All arrested offenders must now be charged.
The Domestic Violence Act thus provides a powerful weapon in the struggle against
domestic violence. Research by Chaney & Saltzstein (1998) and Hirschel et al (2008),
however, suggests that statutory changes may be ineffective unless supported by
bureaucratic directives. In New Zealand this is recognized, and in 1996 the new act was
endorsed by a further policy update, which remains in place today. The three important
components of this most recent initiative are that:
9
1.
Children witnessing domestic violence can be vicariously damaged by it and
thus may need protection themselves.
2.
District family violence coordinators have been appointed who are responsible
for seeing that POL 400 forms are filled in correctly, and for multi-agency
liaison in family violence matters.
3.
Officers contemplating action other than arrest in a domestic violence situation
are required to consult with a supervisor before acting (Ten-One, 121/11).
Thus, in addition to extending protection to children and formalizing the data collection
process, the new policy further limited the discretionary powers of officers.
But even where policy rests in alignment with legislation, there can be little change if
provisions are not enforced. Much of the literature on policing domestic violence points
to the fact that although pro-arrest policies have increased overall arrest rates (Mignon
& Holmes 1995; Simpson et al, 2006), officers in the field continue to exercise
considerable discretion (eg. Buzawa et al, 1995; Felson & Pare, 2007; Ferraro, 1989a;
Robinson & Chandek (2000b).
The problem of discretionary compliance with legal and policy directives has been a
particular problem in New Zealand. Prior research has found that presumptive arrest
policies work best when accompanied by appropriate training (Blount, Yegidis &
Maheux, 1992; Buzawa, Austin & Buzawa, 1995; Feder, 1998; Mignon & Holmes,
1995) or at least, direct supervision (Chaney & Saltzstein, 1998). This may explain the
shortfall in New Zealand. Notwithstanding the new act and its accompanying
procedural requirements, subsequent research by Carbonatto (1998) in Wellington,
10
Porirua and Waitakere discovered that officers were still not always complying with
guidelines and apparently had not been properly trained or supervised. Officers’ policy
awareness was often incomplete, and whether they knew about the policy or not, they
did not always observe it. POL 400 forms were filled out in just over half of the cases
surveyed and contrary to instructions, about 20 percent of offenders were immediately
released following arrest. Furthermore, confirming prior research, there was significant
inconsistency in the application of policy between the three districts surveyed. In the
USA, resistance to pro-arrest has been found to be strongest among long-serving
officers (Robinson and Chandek, 2000a). Carbonatto’s (1998) findings were similar,
with senior officers displaying varying attitudes toward the policy and some indicating
little faith in it at all.
Thus, despite a presumptive arrest strategy followed by multi-agency involvement that
was more than a decade old, police understanding of, and compliance with, the policy
remained haphazard. New Zealand is not alone here; in fact it has many peers. Even the
Minneapolis study, upon which the strategy was originally based, was flawed in this
way. Later investigation determined that, despite instructions to respond according to
the assigned colour codes, numerous officers in Minneapolis had in fact used their own
judgement in handling offenders (Binder & Meeker, 1988; Zorza, 1994). Moreover,
although pro-arrest policies after the release of the Minneapolis results generally
produced higher arrests (Buzawa & Buzawa, 1990; Lawrenz et al, 1988), rates soon
dropped back to approximate their previous levels (Buzawa & Buzawa, 1990; 1993;
Ferraro, 1989b). Where presumptive arrest had been in place for some time compliance
was higher, but considerable discretion was still evident (Feder, 1997; Jones &
Belknap, 1999).
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Britain’s early experience was similar. After 1987 a series of force orders and Home
Office Circulars recommended pro-arrest strategies. But as in the USA, implementation
was inconsistent, and policy was frequently ignored or proved difficult to apply (see
Edwards, 1989; Hamner & Griffiths, 2000; Grace, 1995; Hoyle & Sanders, 2000;
Kelley et al, 1999; Morley & Mullender, 1994; Plotnikoff & Woolfston, 1998).
Familiar problems occurred in Australia (Mugford & Mugford, 1992).
As will be seen, later studies have found higher compliance rates. However this trend
does not appear to have occurred in New Zealand.
The Christchurch Study
In 2005, in order to investigate the dynamics behind officer discretion in the context of
New Zealand’s pro-arrest strategy, fieldwork was conducted with the police in the city
of Christchurch. The objective of the research was to examine the extent to which proarrest was understood by officers, and the factors that influenced their decisions about
whether or not to arrest.
Method
The research for this project took place over a period of 24 months between 2004 and
2006 in Christchurch (pop. 316,000), which is the metropolitan centre of the
Canterbury Police District. The project was supported by the District Commander,
approved by the Research Steering Committee within Office of the New Zealand Police
Commissioner, and overseen by a local [rank?] who was appointed to assist with the
fieldwork. Initially, in order to gauge local organizational procedures and expectations,
12
nine ‘managers’ holding the rank of [ ] were interviewed. The managers were selected
by the police supervisor on the basis that they were somehow involved with the
development or implementation of the family violence policy. These men were spoken
to in their own offices for between 30 and 60 minutes each, and their responses were
recorded on tape and transcribed a day or two later. The frontline officer interviews
took place after the managers had been spoken to. In all, 14 male and female officers
[give numbers] were interviewed from three of the four stations located within the
Christchurch metropolitan area: at Central, Papanui and Sydenham. Frontline
interviews were conducted while accompanying officers out on patrol, during down
time or on the way to jobs. These interviews could not be taped due to constant
background radio noise and in any case, it was feared that taping might affect the
candour of the respondents (Haralambos & Holbourn, 1990: 845). Instead, the content
of the conversations was recorded on the spot in a notebook and written up as soon as
possible after the end of a shift. All interviewees were given a personal code,
identifying them by role (manager: Mg; frontline, Fl), sex (M; F), and age. No two
interviewees had the same codes. [can you check this, Jen? M33 crops up a lot.]
Apart from the semi-formal interviews, participant observation of officers in their dayto-day operations formed a part of the research. The primary author completed 50 hours
of field observations over a four-week period distributed roughly equally between the
three stations. She selected the shifts she wished to work on (all nightshifts), but was
assigned a patrol team on each occasion by a senior sergeant. Patrol officers had no
prior knowledge of her intentions. Observations were noted in the field and coded upon
return, so that they could be matched against the reports the officers submitted. Thus it
was possible to compare the content the officers’ reports against the witness of the
13
researcher. In the field, the researcher was given freedom to accompany officers onto
the scene of a domestic incident, except on the few occasions where firearms were
reported. [how many incidents attended in total; how many firearms incidents?]
Interviews and field observations were supplemented by document analysis. This
involved examination of the content of 313 POL 400 forms (family violence incident
reports), which represented 67.7% of all the POL 400s submitted within the Canterbury
District during the study period. The remaining POL 400s could not be accessed
because they were either still at smaller stations, or were active files in the prosecutions
office, or they had been lost or not filled in. In order to check the accuracy of the POL
400s, an analysis was also made of the data from the Computer Assisted Resource
Deployment (CARD) system, which is where the Police Communications Centre
records information about domestic incidents. The difference between CARD and the
POL 400 is that CARD records all incidents that are initially coded as domestic (1D) by
Communications staff (including K1s: no violence) and is based on the radio reports of
frontline police to Communications at the time of an incident, whereas POL 400 data
come from the forms officers fill in after an incident. As noted, POL 400s do not
include K1 coded incidents. Thus, in addition to 313 POL 400s, the 462 incidents
recorded on CARD during the study period were all accessed and scrutinized for this
project.
Inconsistency in reported arrest rates
Although they related to the same time periods, there was a significant inconsistency
between the information on the CARD system compared with that on the POL 400s. Of
the 462 incidents reported on CARD, 29 percent were resulted as K1, 56 percent as K6
14
(minor violence or insufficient evidence: no arrest), and 15 percent as K9 (violence
identified; arrest made). Importantly, of those resulted K6 or K9 (ie a domestic dispute
with at least some violence), 21 percent of the CARD data indicated that an arrest had
been made. However, data on the POL 400s showed that only 9.4 percent of such
incidents had resulted in arrest.
The discrepancy is hard to explain. It will be recalled that almost a third of the POL 400
forms could not be located. A further four percent did not indicate what action had been
taken. The most probable reason for the differences between CARD and POL 400
information seems to be inaccuracy in frontline officer recording procedures. Although
POL 400s are supposed to be filled in by officers immediately after an incident, it was
noted during fieldwork that this never happened. Officers filled in the POL 400s several
hours, sometimes days, after an event based on memory recall and notes in their
incident books. At times they may not have filled in the forms at all. It appears that
officers are lax in the way they fill in and file POL 400 forms and as a result, the POL
400 data are an incomplete and apparently unreliable record of action taken. As we
shall see, deliberate falsification was also a problem.
If it is accepted that the CARD data are the more reliable of the two sets it means that,
in spite of a pro-arrest policy that is over a decade old, arrest still only takes place in
about a fifth of all cases where domestic violence is evident. These arrest rates are
similar to – albeit slightly higher than - those reported by Busch et al (1992) and Ford
(1993) in New Zealand, and by Buzawa (1988) and Ferraro (1989b) in the United
States. More recent American research, however has found higher arrest rates, in the
region of 30% or more (viz. Bourg and Stock, 1994); Eitle, 2005; Mignon and Holmes,
15
1995; Simpson et al, 2006). Based on more than half a million incidents recorded in 19
states, Hirschel et al, (2008) for example, have found that mandatory and preferential
arrest policies have a significant impact on likelihood of arrest, with nearly half of all
cases of intimate partner violence resulting in arrest. Apart from the direct impact of
legislation on police practice and culture, other factors contributing to higher arrest
rates included a greater likelihood of female perpetrators being arrested. A widening of
the definition of what constitutes ‘domestic violence’ has also increased the numbers of
arrests logged under this category.
Arrest policy in the Canterbury District
Interviews with police and field observations in Christchurch shed some light on why,
in New Zealand, significant change has not occurred. Here it should be noted that at the
time of research the District Commander for Christchurch was female; the first woman
to have achieved such a ranking in the history of the New Zealand Police. It could be
argued that she might display stronger support for arrest in cases of domestic violence
than some of her male colleagues (Chaney & Saltzstein, 1998, pp.761-2; Ferraro,
1989a), or at least greater awareness of the problem (Homant & Kennedy, 1985;
Stalans & Finn, 2000, pp.18-19). Whatever the case, a pro-arrest policy in this province
is clearly in force. The Canterbury family violence policy (7:1), issued in 1998, states:
Providing there is sufficient evidence, offenders who commit Family Violence
assaults or related offences shall, except in exceptional circumstances, be
arrested as soon as practicable. In the rare case where there is sufficient
evidence but action other than arrest is contemplated, the member’s supervisor
must be consulted, and the reason for non-arrest recorded.
16
On the face of it, it appears that there is strong support for the policy. The views of
Christchurch managers interviewed, for example, reflected this and all agreed with
preferential arrest in domestic violence cases. Managers believed that the policy was
being effectively carried out. Most frontline officers also concurred with their
managers’ views, and offered comments such as:
If we can prove an offence has been committed, then we will arrest (Fl-M33).
If the evidence says an arrest is warranted, then you really have to do it (FlM38).
If there is evidence of an offence, then I will arrest them (Fl-M31).
However, as noted, much of the information that is supposed to be recorded on the POL
400 forms is missing and even the CARD data only indicate a 20 percent arrest rate
when violence is reported. If this is the case, and officers support the policy, then why
are arrests so infrequent?
Discretion in ‘Street-Level Bureaucracies’
The answer seems to lie in the exercise of discretion. This is an issue not restricted to
the police in fact it is a problem inherent in many bureaucratic systems. The tension
between written policy and practical reality has often received comment in
organizational literature. ‘Street-level bureaucrats’ – such as nurses, teachers, prison
officers and, of course, policemen - are public service workers who interact with
citizens on a daily basis. Part of their job involves discretion over the dispensation of
rewards or sanctions, and they are required to make their own decisions in everyday
17
work environments. Sometimes these decisions, because they are based on unique or
unforeseen circumstances, run counter to strict policy directives (Allen, 1984; Lipsky
1980; Prottas 1978). Lipsky (1980, p.161) writes:
The essence of street-level bureaucracies is that they require people to make
decisions about other people. Street-level bureaucrats have discretion because
the nature of service provision calls for human judgment that cannot be
programmed for and for which machines cannot substitute. Street-level
bureaucrats have responsibility for making unique and fully appropriate
responses to individual clients and their situations. It is the nature of what we
call human services that the unique aspects of people and their situations will be
apprehended by public service workers and translated into courses of action
responsive to each case within (more or less broad) limits imposed by their
agencies.
Although agencies are bound by regulations and policies in practice, because rules are
static and inflexible the exercise of personal judgement is thus inevitable.
By the same token, where the police are concerned, it has long been recognized that
judicious discretion is an important aspect of general duties (Bittner, 1967; Black,
1980; Wilson. 1968).
Manning and van Maanen (1978, p.67) observe:
18
…it would be a mistake to assume that policies can be found that will provide
meaningful guides to action in most situations of real or potential disorder. The
most feasible rules perhaps are those which tell the patrolman what not to
do…But relatively few rules can be devised that tell a patrolman what he should
do with quarrelling lovers, angry neighbors, or disputatious drunks…much
depends on the particular circumstances of time, place, event and personality.
In other words, policy cannot dictate behaviour of street-level bureaucrats, but simply
act as a guide to it. Particularly where police are concerned, while formal rules and
procedures are an essential lead, the complex, varied and sometimes dangerous nature
of their work demands flexibility and allowance for the legitimate exercise of
professional judgement. The key question is whether that judgement is being applied
judiciously. As previously noted, discretion works most effectively when officers are
adequately trained and effectively supervised.
The Decision to Arrest
In an area so unpredictable and emotionally charged as that of domestic violence,
adherence to predetermined procedure is particularly difficult. It is perhaps a reflection
of this that in Christchurch, [a minority of?] managers [how many] indicated that a
strict arrest policy should be followed:
In theory, if there’s been crimes committed by both of them, you should be
following policy in respect of both of them, which could mean both of them get
locked up (Mg-[p.91]).
19
I can see no reason why we wouldn’t arrest both parties if they’ve both
committed offences, or charge both parties, which may mean they’re not both
arrested, or one might be arrested at the time (Mg-[p.91]).
However as we have seen, the officers in the Minneapolis Experiment found sticking to
randomly-dictated strategies impossible. Flexibility was essential. In the Christchurch
study, in spite of their support for pro-arrest, most managers [how many] saw its
limitations:
Every incident is different and we have to have discretion. The policy should
give us some guidelines on how to deal with things, but I think we’ve got to rely
on the fact that our own officers are individuals, and they will treat things and
see things differently. You just can’t have a written rule that says, “thou shalt do
this every time you attend this,” because it just doesn’t work like that. There
will always be an exception to the rule (Mg-[p.84]).
You can’t have policy dictating too much. You’ve got to have it at a fairly high
level with a lot of open doors, because…there’s a lot of situations in there where
you’ve gotta be flexible depending on the circumstances. You can’t just have a
hard and fast rule (Mg-[p.84]).
The constable…has to make up his own mind, and obviously governed by
policy, but he’s got to use his own initiative and be satisfied that a clear-cut
offence has been committed, to make an arrest…because for the cop on the
coalface, he has to have the initiative and the discretion to make that decision,
20
and there’s always two sides to a story, it’s never always that clear-cut (Mg[p.84]).
As anybody with frontline policing experience will recognize, these are real, not
imaginary concerns. On the street, decisions have to be made on the spur-of-the
moment, often on the basis of incomplete information, sometimes when an officer is
tired after a busy night, and a mistake can be costly in terms of time and money wasted.
Making an arrest involves returning to the police station, with several hours lost
processing an often drunk and uncooperative offender, and then filing the paperwork.
This process is followed months later by lengthy court procedures and the requirement
of an arresting officer to give evidence – perhaps on a rostered day off – and recall
details of an incident, which may have been one of many, that occurred months before.
If the case fails and the arrest proves unwarranted, the officer may be subjected to
criticism from a court, from the media, from independent watchdogs such as the Police
Complaints Authority, and from his own superiors, thus impacting on his career
chances. So police officers are reluctant to arrest unless they are sure of their ground.
One manager remarked:
It’s a big onus on a constable, to make that decision to arrest. It’s got to be a big
judgement, and it’s going to take months to get dragged through the courts, and
the courts can have all the time to make the decisions and all that…while the
cop on the street’s got a few minutes to make that decision whether to arrest or
not arrest and yeah, he’s got to weigh it all up very quickly, and it’s a hell of a
situation (Mg-[p.84]).
21
Due to the need to separate, in the USA Feder (1998) and Ferraro (1989) have found
that presence of an offender at the scene increases the chances of arrest. Conversely,
when a suspect has departed before the police arrive, because of the extra work
involved in securing an arrest warrant and locating the offender, apprehension is less
likely (Robinson & Chandek, 2000b, p.33). Evidentiary concerns such as this have been
found to be an important factor in the decision to arrest. This is particularly so when an
assault is minor (Felson & Ackerman, 2001: 670-671).
The complexities of the arrest and prosecution process make frontline police err on the
side of caution, in spite of rules which say they should not. Pressure is particularly
significant at the end of a shift, perhaps in the early hours of the morning, when an
officer knows that if an arrest is made, it is going to be hours before he/she finally
knocks off and gets home to bed. On these occasions, he/she may take the easy option
and decide not to arrest, even though apprehension may have been the proper course.
Added to this is the highly chaotic nature of the domestic violence situation. Violence
may obviously have taken place. There may be broken glass, furniture overturned, beer
and blood everywhere, physical injuries to more than one party, adults shouting and
children screaming. When the police arrive, they walk into a situation that may have
been in progress for hours. They may become objects of abuse from the disputants and
from neighbours, some or all of whom may be drunk. They may be assaulted
themselves and have to retreat and wait for back-up. There may be no evidence of who
started the violence but warring parties may be accusing one another of it.
22
It sounds so easy, sitting in here…[But] it’s sometimes bloody difficult…a
police constable goes along and both lots are making allegations of assault
against the other and – very difficult to sort out who’s right and who’s wrong.
Who’s the cause of it, who hit who first and whether there are any other
particular assaults that are more serious than the other and should be dealt with?
(Mg-[p.89])
It might be that you run ragged all night because you’re going from job to job
and now you’re at this domestic and you can’t work out, well - who’s the
perpetrator, who’s not? They’ve both assaulted each other, should I leave them
here to carry on fighting or should I lock them both up and get them both out of
the scene? You know, you’ve got to weigh it all up when you go there (Mg[p.89]).
A lot of the time one or both parties are intoxicated, and it’s really hard to get to
the bottom of exactly what has gone on (Mg-[p.87]).
Alternatively, there may be evidence of an assault but nobody wants to say anything. It
should be noted that absence of witnesses – or an offender - does not preclude the
possibility of arrest. Mandatory arrest codes usually require arrest whenever probable
cause exists (see, eg Hirschel, et al, 2008, p.266-7) and victim testimony is not essential
to this. However the reality of frontline policing is that apart from deciding whether to
arrest and if so who, officers have to ensure their own safety, calm the situation down
enough to get intelligible answers to questions, try to understand what happened in the
absence of verbal reports or on the basis of emotionally-charged and highly conflicting
23
accounts, deal with any injuries, settle traumatized children and make arrangements for
their care, ensure the premises are secure and finally, decide whether any other crimes
may have been committed and what to do about them. Uniformed police are not trained
detectives, and the complex and chaotic circumstances of many domestic violence
scenarios can make on-the-spot gathering of evidence difficult.
[how many commented on the problem with evidence?]
The difficulty for us is that when we go to things like this and they just don’t
want to talk to you, they don’t want to make a complaint – they just don’t want
to know you. If someone doesn’t want to talk to you, then it makes it difficult to
arrest unless there is obvious evidence (Fl-F31).
Domestic violence is not clear-cut, and quite often when we get there we don’t
get all the information, as some people are willing to talk and others aren’t. It’s
a bit hard to get a full picture of what has been going on when both parties don’t
talk…Discretion is important based on the fact that one party might be willing
to talk and the other might not (Fl-F32).
In parts of the United States, primary aggressor policies require that in cases of mutual
assault, officers should arrest the party who is deemed most culpable (Finn, et al, 2004;
Hirschel, et al, 2008). In New Zealand, however, and in some US jurisdictions
(Hirschel, et al, 2008), if parties have mutually assaulted one another, unless it can be
established on the spot and with fair certainty that one party’s assault took place in the
context of reasonable defence against the assault of another, then according to policy,
both should be locked up. However in New Zealand - as in the US (Hirschel, et al,
24
2008, p.296) - dual arrest seldom happens, because police tend to apply the primary
aggressor test informally and remove the principal offender. Managers made the
following comments [how many agreed with this?]:
If there’s an indication that one has provoked it, they will be arrested…look at
who started it, and generally they get arrested (Mg-[p.90]).
It’s the degree of force that takes precedence. So if you get someone pushing a
person, and he beats you up, they don’t cancel (Mg-[p.90]).
I think quite often in those situations we take a pragmatic approach and either
arrest nobody or separate people off and try to resolve it that way, because we
just can’t know who’s the [principal] offender (Mg-[p.90]).
To be honest, I can’t really think of why you’d arrest both parties to a domestic,
because once one party’s been arrested, the major reason for arresting one party
would be to ensure the safety of the other. So I can’t really see why you’d need
to arrest both (Mg-[p.91]).
Frontline officers [how many?] tended to agree and clearly made practical decisions
about whether to arrest based on priorities as they saw them:
You just split them up, basically. It’s pretty hard to arrest any of the parties if
both have been fighting. Obviously if one has committed a serious assault – eg
with a bottle – they’re going to get locked up (Fl-M44).
25
In the end it’s a balance call. We’re not going to arrest both parties, because
that’s an impractical solution (Fl-M33).
If it is only verbal, then we will try to separate. Usually it’s the male that
leaves…If both parties have smacked each other, then you have to look at selfdefence – whether or not one of the parties has hit back in self-defence. You
know that that sort of case won’t go to court. You need the compliance of one
party. If there’s a minor assault, it’s not really an offence. But if it’s a serious
assault, you would look to arrest (Fl-M31).
In fieldwork it was observed that the presence of children (who are often traumatized) a
late hour, and the difficulty in finding someone appropriate to calm and care for them
also discourages dual arrest. If windows and doors have been broken and the occupants
have been arrested and/or taken to hospital, it is the duty of the police to secure the
premises before they leave. In such circumstances, the arrest of both parties
complicates the police officer’s job and is therefore avoided.
Apart from the problem of caring for children and protecting insecure premises, there
are other matters to be considered. One is that if both parties are arrested, another car
has to be despatched to transport them separately back to the station lockup. In rural
areas, extra cars and separate lockup facilities may not exist. Moreover, charging A and
B with mutually assaulting one another, while expecting them to testify against one
another, makes cooperation highly unlikely. One officer put it thus:
26
It makes it difficult in court, because you have an individual who is both an
offender and a victim. You need the cooperation of the person as both the victim
and the offender (Fl-F32).
This situation is complicated in New Zealand, where married couples cannot be
compelled to testify against one another, and where fighting in itself is not an offence,
unless it occurs in a public place.
Although robust research in New Zealand and elsewhere suggests that women assault
their male partners at least as often as the reverse (Berliner, 1990; Bograd, 1990;
Dobash & Dobash, 1992; Magdol et al, 1997; Makepeace, 1986; McNeely & Mann,
1990; O’Leery, et al, 1989; Steinmetz, 1977-78; Straus & Gelles, 1986), because males
are physically stronger than females they often do the most damage and where chronic
tyrannizing relationships are concerned, males are nearly always the perpetrators;
women and children the victims. Oppression may be so complete that a woman may
initially be unable to understand or describe the condition of vassalage she has fallen
into (see Dennehy & Newbold, 2001; Stark, 2007; Walker, 1979). The markers of the
‘battered woman syndrome’ are well recognized in New Zealand and have been used as
a defence in high-profiled murder trials (see Newbold, 2000, pp.61-62). Thus, in
domestic violence situations, even in the absence of a complaint, if a party has to be
removed it is usually the male.
Where complaints are made it is also the case that female victims are more likely to
sign statements against male suspects than the reverse (Felson & Ackerman, 2001: 664665) and victim cooperation has been found to be a significant factor in the arrest
27
decision (Eigenberg, Scarborough & Kappeler, 1996; Robinson & Chandek, 2000b,
p.21). This adds to the likelihood of males being arrested over females.
The interests of children are another factor. Because mothers tend to be the primary
caregivers of children, if youngsters are involved it is simpler to arrest the male than the
female. There are no comparative gender data available in New Zealand, but the
preferential arrest of males over females in domestic violence situations is well
established in international literature (see Felson & Ackerman, 2001; Felson & Pare,
2007; Kingsnorth & MacIntosh, 2007). It should be noted, however, that recent
research by Hirschel et al (2008, p.295) finds that mandatory arrest has corrected the
male-female arrest discrepancy in certain areas.
Another factor that has been found to affect arrest decisions is offenders’ behaviour and
demeanour – with drunken and/or abusive offenders being more likely to be arrested
than those who are apologetic, polite and conciliatory (Edwards, 1989; Feder, 1997;
Grosman, 1975; Jones & Belknap, 1999; Worden, 1989). Feder (1997), for example,
found that offenders who were belligerent toward the police were six times more likely
to be arrested than those who were not. Worden (1989, p.689) explains it thus:
In disputes, officers who believe (correctly or not) that citizens are disrespectful
or hostile might be more inclined…to adopt coercive responses rather than
mediating or persuading one of the disputants to leave…Officers who believe
that citizens are respectful may be more willing to assume a cooperative rather
than an adversarial posture…They may thus be more likely to mediate or
perhaps to counsel.
28
Moreover, if parties in a domestic assault case are clearly still angry and agitated the
likelihood of violence re-erupting after police leave makes arrest of at least one member
particularly advisable. On the other hand, if a dispute is relatively minor, the arguing
has stopped, the household is calm and a couple have clearly begun to reconcile, police
may use discretion and decide against aggravating the situation by making an arrest.
One officer remarked:
It’s all about circumstances…What are you looking to achieve? I would be
hesitant if I was just making a domestic violence arrest for the sake of it. It’s not
about arresting someone for the sake of arresting someone. It has to be a
positive outcome (Fl-M33).
A manager endorsed this view:
We encourage constables to arrest people but they have to have turned their
mind to what the other options might be – ie you have to arrest somebody
because it’s in the interests of the victim, so that he or she can be safe during the
next 24 hours (Mg-[p.114]).
It has to be acknowledged, however, that domestic violence is seldom a one-off event
and that a conciliatory approach may well lead to repeat victimization (Stark, 2007,
pp.61-62; 92-96). While a situation may appear calm when the police arrive, it can
easily re-erupt once they have departed. The logic of pro- and mandatory arrest policies
29
is to prevent this likelihood and to attempt to deter recidivism at a later date (Melton,
1999, pp.9-11; Zorza, 1994, pp.984-986).
A final problem, and one which frustrates police officers everywhere, is the propensity
for some victims to lay information against an assaultive partner, only to retract at a
later date (Schollum, 1996, p.65; Worden, 1989). We have seen that the 1964 General
Instructions also alluded to this. A huge amount of time and resources are invested in
the arrest and prosecution of offenders. Because of the perceived wastage when a case
fails because of complaint withdrawal, officers sometimes become cynical about
domestic violence complaints, particularly where there is a history of aborted
prosecution due to a witness’s non-compliance. They also appear to become cynical,
and less likely to arrest, in cases where violence has occurred before (Felson &
Ackerman, 2001, p.667; Robinson & Chandek, 2000a, p.52).
Officer Cynicism
Thus there are a large number of situations where, contrary to policy, an experienced
police officer will decide not to arrest due to a variety of significant factors. Another
problem with existing policy is the requirement for a superior officer to be consulted
whenever non-arrest is contemplated. In fieldwork observations this never happened
but we were not surprised. Domestic violence situations usually occur late at night and
there may be several incidents being attended around the city at a single time. Frontline
officers in their training and in their normal duties are expected to exercise summary
judgement in dealing with difficult situations. It would be impractical to expect them to
radio headquarters to request superior officer endorsement every time they decide not
to arrest in a domestic dispute. Thus it is simply not done.
30
Given that condition, however, we were also unsurprised to find that police were less
than fastidious in filing their POL 400 forms. We have seen that about a third of the
forms were missing and that the information recorded on them was inconsistent with
the CARD data. This is a common problem with police generally. Internationally, there
is a degree of cynicism about policies made by remote bureaucrats who are perceived to
have little contact with reality. In the United States, Ferraro (1989, p.179), Grosman
(1975, p.91), Maynard-Moody & Musheno (2003, pp.144-145), Melton (1999) and
Worden (1989, pp.689-697) found that officers tend to make their own interpretations
of their role as keepers of the peace. In Western Australia, the Ombudsman (2003,
p.36) has commented that some officers:
…appear to be attending incidents of Assault in the family home with the
mindeset that police policy does not necessarily provide them with the practical
support they need, and that it is idealistic and therefore not able to be practically
applied in all such cases. In short, to some officers, police policy…does not lend
itself to a workable practice.
Arrests in domestic violence situations have been found to be less frequent among more
experienced officers (Robinson & Chandek, 2000a; 2000b). Cynicism toward official
policy apparently increases with length of tenure.
In Christchurch we observed a degree of officer resistance [how many officers?] to
policies made in the capital of Wellington, which some see as unrelated to the frontline.
The following comments were typical:
31
The police hierarchy are so narrow-minded. It’s easy to make policies within the
safe and secure walls of Wellington, when you don’t know what’s happening
out in the streets (Fl-M33).
It adds to the paperwork, but it doesn’t really change anything. If they really
wanted to change things, they’d put more money into it (Fl-M31).
We all know what policy and what guidelines work. I think it’s inevitable that
you will get a difference between the written and the practical. It’s very
difficult. You need to get a balance. Our obligation is to do our best for the
victims with the restrictions that we’ve got (Fl-M33). [is this the same M33 as
above?]
Thus, despite the verbal support for pro-arrest expressed by most officers, in practice,
wide discretion continues to be applied. Failure of police to fill in the POL 400 forms
fully – or at all – may reflect a general cynicism about an arrest policy that is seen as
inflexible and impractical. That is, officers may deliberately omit information that will
result in criticism of their actions, or they may alter information to fit in with official
expectations.
In international research, this so-called ‘good story’ maxim is well recognized (eg
Chatterton, 1979, p.94; Ericson, 2005, p.24; Grosman, 1975, pp.83-84; Lipsky, 1980,
pp.163; Prottas, 1978, p.289). Sanders and Young (2003, pp.233-234) say that written
reports can correspond “as much with legal expectations as with the reality of the
incidents,” and Reiss (1996, p.164) notes that informal rules prescribe that officers
32
should control the information contained in their reports in order to construct “an
account that justifies the action of an officer taking it.” Similarly, Manning (2003,
pp.222-223) writes:
All reports are edited and shaped. The written story varies from the actual
events in their fullest explication as experienced. The parallel is the analogue
between the text (what is written) and the fabula (what is being told).
In the Christchurch police, the same pressures exist, and no doubt partially explain the
missing POL 400 forms and the disparities between POL 400s and the CARD data.
Moreover, apart from the above, a number of the 313 POL 400s that were collected in
Christchurch were incomplete in some way: over 18 percent had no support box filled
out and 2.8 percent failed to record the presence or absence of injuries. Significantly,
another 2.8 percent had no file number and seven percent had no file number or event
number, making auditing almost impossible. Although POL 400s also have a box
where officers may record situational details of an event, in almost all cases this box
was left empty. Nothing but basic facts was provided, and the majority of forms did not
contain enough information to tell whether or not an action was justified. The
frequency of these shortcomings suggests a degree of laxity in scrutiny of POL 400
forms and in enforcement of official procedures.
The problem with this is that, although police may often make sound professional
decisions that deviate from strict policy, their propensity to create ‘good stories’ to
cover their actions also invites illegitimate practices. Field observations yielded two
plain examples of abuse of process. In one case, Communications reported a woman
33
being dragged down the street. When the police arrived, the offender had fled but the
victim displayed dishevelment and minor injuries consistent with having been dragged.
There were a number of witnesses. However, when the senior attending officer filled in
the POL 400, he stated specifically that there were no injuries and no witnesses present.
And despite recording that the woman had received support from ‘family’, the only
family present were her own small children. In the second case, a sergeant had attended
an incident where the victim was bruised and bleeding, and his car extensively
damaged. The alleged assailant had fled. Frustrated at being unable to learn where the
suspect might be, the sergeant withdrew from the scene without resolving the matter
and resulted it K1 – not domestic related and no offence committed.
It appears, in both cases, that the POL 400 data were falsified in order to avoid the
trouble of investigating the cases properly and procuring warrants to arrest. We have no
way of knowing how common practices of this type are, but of the 313 POL 400s we
examined, even when violence with injuries was reported, in 56 percent of cases no
arrest was made. There may have been good reasons for this – such as the absence of
the offender. That fact notwithstanding, it is clear that where broad discretion is
permitted within a policy that attempts to restrict it, and deviations from policy are
allowed to continue unchecked, then the illegitimate use of discretion must inevitably
occur alongside the legitimate. Although we encountered only two clear examples,
there must be others. Further research into the area is required.
Conclusion
Up to the 1980s in most western jurisdictions, police took a hands-off approach when
dealing with partner violence. The introduction of pro-arrest and mandatory arrest
34
policies came on the heels of the feminist movement, which demanded that police
become more pro-active in the domestic area and step in to protect victims – primarily
women – from future attacks from their partners. The Minnesota Experiment findings
indicated that pro-arrest was effective in deterring future partner assault and thus
affected policy making throughout the western world.
However, wherever the policy has been implemented, similar issues have arisen.
Typically, observance has been irregular and many officers – even in the Minneapolis
study itself - continue to exercise discretion. Moreover where policy is effective, the
success is often temporary, with initially high arrest rates soon dropping back to
approximate what they had been before.
In New Zealand, identical problems have been encountered. Ever since the first
presumptive arrest policies were drafted in 1987, there has been inconsistency in
application, a lack of proper monitoring, and extensive usage of officer discretion in
domestic violence situations in spite of a raft of official directives that limit it.
Amendments and refinements of policy over the years have had little effect. Moreover,
our fieldwork has shown that formal recording of responses by officers in attendance at
domestic incidents is poor, with about a third of the official POL 400 forms missing, a
large percentage of those that are available incomplete, and that the data on the POL
400 forms non-reconcilable with the information recorded by the Police
Communications Centre. Where some degree of violence is reported, arrests only occur
in about 21 percent of cases.
35
We have argued that, in spite of high levels of verbal support for pro-arrest, in practice
there are a number of factors that prevent police from apprehending at the scene of a
domestic dispute, and a variety of valid reasons why they may decide not to do so even
where an arrest is possible. We have also contended that the requirement for officers to
consult with a supervisor when opting not to arrest, and the practical difficulties that
this imposes, create a powerful impetus for police to fudge their reports, to provide
vague and incomplete information in their reports, or to fail to file reports altogether.
It appears that the policy as it currently stands is unworkable because a truly pro-arrest
initiative that limits police discretion is impractical, as is the requirement for superior
officers to be informed whenever non-arrest is contemplated. The inevitable result is
the ‘good story’ response, where officers elect to falsify or omit information from the
POL 400 forms that may lead to criticism. Moreover, there appears to be low awareness
of this situation within the police hierarchy. We have seen that this creates an
undesirable situation. It leads to misleading statistics about the nature of domestic
violence, to cynicism about the policy itself, and to a situation which permits, alongside
the exercise of legitimate discretion, a degree of procedural abuse by some frontline
staff that is invisible to official scrutiny.
Identifying the problems surrounding domestic violence policing is easier than finding
solutions. Clearly, rigid pro-arrest policies are unworkable. On the other hand, giving
too much choice to officers can lead to inconsistency and indiscretion. What New
Zealand’s experience shows is that presumptive arrest within clearly defined
boundaries is probably the best option provided it is accompanied by proper training,
monitoring and oversight. Reliable reports and records (which we have seen are so
36
poorly kept in New Zealand) are fundamental to a process which depends on reliable
feedback and adjustment to changing exigencies. Adequate instruction, resources and
backup from other agencies are also essential. This may be expensive, but given the
well-known effects of domestic violence on the development and life chances of the
forthcoming generation, an effective inter-agency approach to domestic violence would
seem central to good public policy.
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