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The answer to “Must an make an arrest” in a domestic violence complaint
regarding a homosexual couple in a mandatory-arrest state is not one that is cut and dry. Under a public-policy analysis, the officer is probably required to make the arrest. Under a statute-based analysis, the officer probably isn’t.
The purpose of a “mandatory arrest” statute is to take away the officer’s discretion when forced with the question of whether to make an arrest in a domestic violence complaint or not. Typically, the victim, usually the woman, will change her mind and refuse to press charges when she finds out that her partner is going to be in trouble. It is the intention of the State in these matters to send a message that violence between domestic partners will not be tolerated, regardless of the wishes of the victim. Analyzing the situation at hand with these public policy considerations in mind, the officer would be required to make an arrest. There is an altercation between domestic partners, therefore an arrest should be made to protect the victim, no matter the victim’s wishes. However, in a same-sex situation, the officer would probably arrest both parties, since there is not an obviously “stronger” party, and let the Court system decide who is at fault. This would be an unintended consequence of the statute and would not be an outcome in line with public policy concerns.
Under a statutory analysis, the officer is probably not required to make an arrest. Not only can the officer not tell if the couple is even gay, making it a non-domestic dispute, the officer is not in a position to determine whether gay couples are even covered. The officer is only required to make an arrest in a case of domestic violence, and since it is unclear whether this is a domestic instance, the requirement for an arrest would remain unfulfilled.
In my personal opinion, in a same sex situation, a determination of actual harm to the victim should trump the public policy considerations held by the State. Whether it be a lesbian couple or a homosexual couple, there is no gender parity and therefore both couples are necessarily on more “equal” footing that heterosexual couples. Since these couples do not fall under the letter of the statute, police officers should have discretion not to make a mandatory arrest, especially considering the fact that if they were forced to make an arrest, both parties would probably be going to jail.
Assuming that one of the parties is arrested, the court should probably dismiss the case as long as the offending party is willing to attend counseling sessions on domestic violence. First, the issue of the Judge sentencing the offender for taking advantage of the “weaker” party in a domestic situation is not present. Furthermore, this case does not fall into a cut and dry mold of a regular domestic violence case. In the interest of justice
, the Judge should balance the importance of speaking out for the victim against the actual harm that has occurred in this case. The victim was not taken advantage of because of their gender and should be allowed to speak for themselves in this instance, instead of the State speaking for them. If the victim is satisfied with counseling sessions and believes that is a sufficient punishment in this instance, the Judge should dismiss the case.