Lawyers Manual - Unified Court System

The Family Protection and Domestic Violence Intervention Act of 1994 175
arrest and reducing officer bias. 19 Training for law enforcement should emphasize
the importance of utilizing all police reports, including past domestic incident
reports and protective orders. Diversity training to promote communication
between officers and complainants is an essential component of both effective
police investigation and response.
Preliminary research into the effects of the primary physical aggressor
legislation on dual arrests has been encouraging. Domestic violence advocates
believe that training of law enforcement on the primary physical aggressor
legislation has helped reduce the rate of dual arrests. 20 Application of the primary
aggressor laws were found to have a dramatic effect in Washington, where the
number of arrested victims of domestic violence dropped significantly as a result
of increased police training on domestic violence related issues. In 1985, “six
years after the passage of must-arrest laws, Washington’s dual arrest rate — the
factor used most often to determine whether victims are being wrongfully
arrested — was only 1.5%.” 21 Research conducted by the New York State Office
of Domestic Violence Prevention concerning dual arrests was inconclusive as it
took place prior to the enactment of the primary physical aggressor legislation.
Retaliatory Arrests
Unfortunately, the primary physical aggressor legislation did little to deter
retaliatory arrests, or “. . .exaggerated [and] false complaint[s] by an abuser
usually in retaliation for measures taken by the victim to protect herself or her
children.” 22 These retaliatory arrests appeared to be “partnered with potentially
dangerous and manipulative batterers who are learning how to use the law to
their own advantage.” 23 However, application of the primary physical aggressor
analysis was found to decrease the likelihood of retaliatory arrest. 24
The following recent case from a New York court illustrates the problems
that occur when law enforcement personnel do not apply the primary aggressor
analysis in a retaliatory arrest scenario: 25
Ms. C. was a twenty-six-year-old, Spanish-speaking immigrant.
She had three children ranging in age from three months to eight
years of age. She separated from her spouse who became
increasingly abusive after the baby was born and petitioned for
an order of protection from Family Court. Several weeks later,
her batterer contacted her to see the baby. When Ms. C. arrived
at his home to allow him visitation, she was terrified when he