DATE: Sunday, November 9, 1997              TAG: 9711070043

SECTION: COMMENTARY              PAGE: J4   EDITION: FINAL 

TYPE: Editorial

                                            LENGTH:   70 lines

DOMESTIC VIOLENCE LAW DESERVES A CHANCE

A new domestic violence law is drawing mixed reviews. While there has been much praise, a recent article in The Washington Post raises concern that the reform also has had unintended, negative consequences.

The Post cites a handful of cases in which the statute - which mandates an arrest in most instances of domestic abuse - may have led to inappropriate charges. In one such case, a father was arrested when he struck his intoxicated son as the 16-year-old was getting behind the wheel of a car.

In another, a 21-year-old was arrested when she flung a set of car keys in the direction of her mother during a dispute over a boyfriend. In yet another, a young woman who appeared to be the victim in an abusive marriage was arrested because she smashed a peanut butter jar during an argument. (In neither of the latter cases was anyone hit.)

The question raised by the article is whether the dragnet of mandatory arrest is too broadly flung. Has the state, in attempting to remedy the serious and longstanding problem of family violence, created a new category of miscreants whose basic offense is being angry at a parent or spouse?

The starting point for an answer is the fact that the cases cited in the article truly appear to be exceptional. For instance, in three of the five, the party arrested was female. But in a survey of arrest patterns in five localities since the law took effect July 1, 80 percent of those arrested were male, according to the state Commission on Family Violence Prevention.

Second, virtually no one disputes that the new law in most cases effectively protects individuals who are in danger of being harmed.

Gone are the days when police intervening in a husband-wife dispute told the parties ``simmer down,'' and then left. Under the new law, if there is probable cause that assault and battery has occurred, police must make an arrest in most cases.

The person arrested is the individual deemed the ``primary aggressor.'' That person is then barred from contact with the other family member for three days.

Among the advantages: Police spend more time investigating domestic complaints; battered individuals no longer bear the onus of deciding whether to press charges; and the mandatory protective order gives victims a three-day, cooling-off period to evaluate their lives.

Ken Noyes, staff attorney and head of the domestic violence project at the Legal Services of Northern Virginia, summed up the impact: ``There are arrests that are happening where the wrong party is being arrested. But many arrests are being made that were needed and were not being made before.''

How to address the exceptions without torpedoing the rule?

Before tinkering with the statute, state officials should make sure that local police departments are enforcing it properly.

The measure is widely described as a ``mandatory arrest law,'' but in fact, it is not. There are three exceptions to mandatory arrest, some of which could have prevented police action in several of the cases cited by The Post.

First, the arresting officer must find ``probable cause'' that abuse has occurred. Second, the law applies only in cases of assault and battery. (In other words, the keys have not only been thrown, but they have hit someone.) And third, the officer can opt against an arrest if ``special circumstances'' dictate another action.

Police departments need to be schooled in the subtleties of the law and in the art of sizing up a range of situations. These are notoriously difficult cases to unravel, and officers deserve as much guidance as possible.

Meanwhile, lawmakers need to keep a finger on the pulse of their communities. If the law is being fully understood and properly applied, and there still are cases that fly in the face of common sense, then the legislature may need to go back to the drawing board.

Until then, Virginians should applaud the fact that domestic violence is finally being treated as a serious crime. Hopefully, an official no-tolerance attitude will filter down into hundreds of bedrooms and kitchens where the true change must occur.

Send Suggestions or Comments to webmaster@scholar.lib.vt.edu