That others haven't rushed to follow Colorado's lead is probably a good thing, suggests a University of Northern Colorado researcher who recently completed a study focusing on the more troubling aspects of the state's crusade. Over eighteen months of interviews with dozens of people involved in enforcing the law, UNC crimina- justice professor Mary West-Smith found police officers confused about the circumstances that trigger mandatory arrest; prosecutors frustrated by a lack of discretion over which cases to pursue in court; and a surprising number of cases in which nonviolent parties, and even victims of domestic violence, ended up being arrested for minor property damage — which, under the statutory scheme, can get a person labeled as a "domestic-violence offender" deserving of treatment and monitoring.
"The idea was that the system would be able to address these problems and fix them," West-Smith says. "But the way the statutes are written, it's not happening. This is assembly-line justice."
Victim-advocacy groups pushed for the tough legislation, pointing to numerous cases that suggested law enforcement typically didn't take domestic assaults as seriously as other types of crimes. The 1994 overhaul required police to make an arrest whenever there was probable cause that a crime against person or property had occurred "as a method of coercion, control, punishment, intimidation or revenge directed against a person with whom the actor is or has been involved in an intimate relationship." An arrest then sets in motion a series of other mandates, including a night in jail before being allowed to bail out and a 36-week series of classes or therapy sessions for convicted offenders.
A 1998 Westword series about the new laws found a range of problems with the process, from a lack of quality control in the treatment programs (and a lack of scientific evidence of their efficacy) to the ways that abusers could manipulate the law in order to get the victim arrested. West-Smith says she has no argument with the notion that evidence of actual assault should trigger arrest; the difficulties arise from more ambiguous cases of property damage. Is the smashing of a phone or the damaging of a door an act of domestic violence? Sometimes yes, sometimes no — as former Colorado Avalanche goalie and coach Patrick Roy found out a few years ago.
West-Smith says she was urged to pursue her line of research by two district attorneys, both troubled by the inflexibility of the statutes. Since the laws went into effect, she notes, the proliferation of cell phones — and the discovery of infidelity through inspecting calls, texts, e-mails and so on — has contributed to situations in which someone with no history of domestic violence might smash a cell phone in a moment of anger.
"There are many circumstances where they are breaking a picture, breaking a phone, that in my mind isn't domestic violence," one veteran prosecutor told West-Smith. "But I'm not the king who makes that decision.... Damaging someone else's property is still illegal, but does it necessitate the amount of resources given to it by the criminal-justice system in terms of probation, supervision, domestic-violence treatment classes, mandatory enhancements that trigger other ramifications such as firearm possession and housing and employment? No. I think that there is sometimes a disproportionate response to an issue."
West-Smith's project, presented at a national conference this past spring, is a qualitative study; it provides no hard numbers on the number of arrests over busted cell phones, a tricky figure to track down. But confusion over whether such situations require an arrest, and the unintended consequences of removing discretion from officers in the field, reverberate throughout her interviews. West-Smith says one of her former students was unable to pursue a career working with juveniles because of an ancient DV conviction, stemming from minor damage of her ex-husband's property upon discovery of another woman in the picture; the student, she says, is "exactly the type of individual one would hope would be weeded out by more careful reviews of these DV cases in which property damage is the only evidence."
"It's an extremely sensitive political issue," West-Smith notes. "[Victim] advocates fought for this, and there's nothing you can do to convince them that the legislation should be changed. But we don't know if it works to reduce violence. It hasn't been studied in a comprehensive way."