Colorado is among a handful of states with mandatory arrest policies for domestic violence.
In most states, police officers are empowered to evaluate an incident before making an arrest.
In Colorado, the mandatory arrest policy means an officer has to make an arrest if he or she has probable cause to believe a crime involving domestic violence was committed.
This is where things get complicated…
Domestic Violence and Probable Cause
Critics of mandatory arrest laws claim victims may be deterred from reporting abuse to protect an abuser from mandatory arrest. The ambiguity of determining probable cause may also force police officers to make an arrest even if no crime occurred—this differs from simple assault cases in which officers are trained to evaluate the context and circumstances of an incident.
If police officers aren’t given the discretion to investigate, they’re left with no choice but to make an arrest in nearly all instances of potential domestic violence.
So what’s considered probable cause in a domestic violence case? There are five indicators used to determine probable cause in Colorado: intimidation, coercion, control, punishment, and revenge. If police suspect any of these indicators (to any degree), they must make an arrest.
This policy is intended to save victims from further harm and limit immediate contact between an abuser and the victim. However, there have been incidents throughout Colorado in which individuals who otherwise would not have been arrested are left facing criminal charges because police are obligated to make an arrest in certain situations.
The Greeley Tribune brings this gray area into focus in an editorial about efforts to change Colorado’s domestic violence law. The Tribune singles out a situation involving a husband and wife, and their daughter; the wife, who suffers from bipolar disorder, was engaged in a heated argument with the daughter when the husband decided to call police for crisis assistance.
The wife’s breakdown, which was associated with her condition, resulted in her throwing and breaking household objects. Police perceived this as probable cause and arrested her against her husband’s will.
Domestic Violence and the Law
Domestic violence isn’t treated as a distinct crime. Instead, domestic violence is tacked on to other criminal charges such as assault, harassment, criminal trespassing, or disregard for a civil restraining order, to name a few.
The Colorado Judicial Branch’s information management system (ICON) tracks domestic violence offenses to analyze profile characteristics and to compare recidivism rates of those who received domestic violence treatment with those who did not.
Treatment is an important part of all domestic violence cases in Colorado, because of mandated evaluation and treatment policies.
According to the most recent data from Colorado’s Office of Research and Statistics, “cases with the DV flag are more likely to be dismissed compared to cases without a DV flag: approximately one-third of cases with a DV flag were dismissed or found not guilty, and women were more likely than men to have this occur.”
State data also indicates that approximately 66 percent of cases flagged as domestic violence have a conviction charge category of misdemeanor assault; this is followed by a category that includes charges of criminal mischief, criminal trespass, and tampering. Approximately 7 percent of flagged domestic violence cases include a conviction charge of felony assault.
So why is domestic violence treated differently than simple assault? Why does familiarity between people change the nature of a crime?
Through the mid-1800s most legal systems rejected what was then commonly referred to as “wife beating” as a premise for criminal misconduct. In 1850, Tennessee became the first state to outlaw wife-beating, and many other states soon followed with similar legislation.
The women’s movement of the 1970s delivered the first known use of the term “domestic violence,” and today we also recognize domestic violence against men.
Since 1987, Domestic Violence Awareness Month has been observed every October to bring awareness to domestic violence and to connect victims’ advocates across the country.
Colorado and Mandatory Domestic Violence Arrests
In 1994, Colorado domestic violence policies—including mandatory arrest—were implemented that further pushed domestic violence offenses and their penalties into public consciousness. The mandatory arrest was written into law to force police and the courts to take the issue more seriously.
But more than two decades later, many believe the law is overdue for revision.
Convictions related to domestic violence result in increases to mandatory sentencing and other penalties, and they affect probation conditions, which may include anger management classes, and random drug and alcohol testing among other stipulations.
In some cases, as another Greeley Tribune article points out, individuals who may have been arrested on otherwise questionable grounds end up pleading guilty without understanding the impacts on their lives moving forward.
In Colorado, for example, a misdemeanor or felony conviction also prohibits offenders from owning, using, or possessing a gun. Furthermore, convicted felons may struggle to find housing or jobs.
What the future holds regarding mandatory domestic violence arrests in Colorado remains unclear.
Amy Miller, executive director of the Colorado Coalition Against Domestic Violence, told the Greeley Tribune, “…undoing mandatory arrest and replacing it with something else — that consideration is still on the table.”
If you or a loved one was arrested for suspicion of domestic violence, the Denver criminal defense attorneys at Wolf Law are here to help you understand your options and protect your rights.