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Biased Policy Might Be Putting Domestic Violence Victims in Jail

We spoke to an expert to find out why female arrests have gone up dramatically over the last 20 years. It's not just because women are committing more crimes.
October 7, 2015, 3:25pm
Photo courtesy of Houston DWI Attorney via Flickr

Over the past 20 years, female arrests have increased overwhelmingly. In 1993 women made up 19.7 percent of all arrests, and as of 2012 that number has jumped to 26.2 percent. Conversely, male arrests have been on the decline. In a new study analyzing years of data from the FBI's Uniform Crime Reports, Christina DeJong, a professor at the School of Criminal Justice at Michigan State University, and colleagues found that the increase of women in the criminal justice system isn't only related to an increase in female offenders.

DeJong's study provides evidence that relatively recent changes in policies biased against women have led to more arrests. From the data, she speculates that mandatory arrest policies in some states' domestic violence laws might actually be harming victims more than they're helping by facilitating the arrests of women who are simply defending themselves. "The empirical evidence and policy analysis are more than suggestive that some combination of gender-linked benign neglect, animus, or indifference towards women and their involvement with the criminal justice system is at work," the authors state in the study. Broadly spoke to Christina DeJong about how ill-advised laws might be fueling the grim war on women.

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BROADLY: Why did you decide to take a closer look at the data from female arrests?
Christina DeJong: Our paper was one of several in a special issue of [the journal] Women & Criminal Justice. We were interested in finding out if there is, in fact, a "war on women" in the criminal justice system, because that term has been used quite frequently over the past couple of years. A lot of what happens on social media, for example, is people sharing individual stories of crimes that have happened. We wanted to look at the data systematically to see if there is a war on women and if we can see evidence of it happening in the criminal justice system. Our answer to that was mixed; it was somewhat yes and somewhat no.

Our concern is that changes in policy may be driving the increased arrest rates for women.

I understood one of the goals of the study was to differentiate between whether the increase in women's arrests over the years were caused by the offending population or by some sort of bias on the part of the officers. How did you ultimately decide that the increase of female arrests was motivated by gender bias?
When we say things like, "The arrest rate for women is going up," there's an assumption that that's because women's criminal behavior is going up. But what we're trying to find out—and what we encourage future research to look at—is whether that's because of behavior by the criminal justice system rather than women's own criminal behavior. Could it be women are more involved in more aggressive crimes? Based on what we know of the literature we don't think that's the case, but you know again, we would have to do a separate study to see if it's true. Our concern is that changes in policy and in criminal justice policy and the law may be driving the increased arrest rates for women, and changes in domestic surveillance laws, specifically, have actually resulted in the arrests of more women, which could mean that more victims of domestic violence are being arrested.

There were changes in the laws, I suppose, between 1992 and 2012. As the criminal justice system strengthened domestic violence laws and policies, what happened was there was more of a focus on a policy called dual arrest. Under dual arrest policy, an officer can show up at the scene of a domestic incident and just arrest both parties, essentially letting the court figure it out. So a woman who has used defensive violence against an abuser could be arrested for domestic assault. Then it goes to court, and you have an arrest on your record. If you're a woman who physically fights back, under some domestic violence laws you could be arrested for domestic assault. What we're wondering is: Could that be part of the reason for this increase? We changed the laws with the intent of strengthening them and protecting victims, but do we have the unintended consequence of now victims being arrested? Right now we have some anecdotal data that that's happened, but we don't have really consistent, systematic data to look at that issue.

Photo via Wikipedia

Do you know what the original intention of the dual arrest law was? I can't imagine how that law would protect women.
Well, there are so many different laws [under the umbrella of dual arrest laws]. Even some state laws are interpreted differently by police departments, so it's really difficult to say. It seems like the intent of the dual arrest policies were to give police more power to arrest. Because it used to be, back in the 1970s and prior to that period, the issue of domestic violence was seen as a personal issue between a couple and not a criminal justice matter. After the women's movement, we made huge strides to say no, this is a criminal assault and needs to be treated like that. So the laws changed very rapidly.

From a criminal justice perspective, it seems like they were designed to facilitate arrest, and maybe give the police less discretion. If a police officer shows up and has a hard time figuring out who the victim and who the offender is, they can just settle it by arresting both people. And it could be that in some places, I'm actually fairly sure that this is true, some police departments rely more heavily on dual arrest than others. It could be a way for police officers to say, "I can't take the time to figure this out," or maybe even, "I don't want to take the time to figure this out. I'm just gonna arrest everyone." If that happens enough, we see more women being arrested and funneled into the criminal justice system.

Some of those laws just don't work. They have unintended consequences.

Were you able, based on that study, to make any sort of policy recommendations in terms of domestic violence law?
I mean, I would like to see more research on the effects of dual arrests specifically, and there's actually been quite a bit of that. I think that most jurisdictions dropped dual arrest policies. There are still some that are out there, but I think that there are dual arrest policies in place and some officers simply refuse to operate under a dual arrest policy. But before we make real, concrete policy decisions, I think we need to be looking at exactly what's happening in some of these jurisdictions. And if, in fact, there are changes in police policy or criminal justice policy that are resulting in victims being arrested, or for defending themselves, then those are policies that need to go away. We just need to know more about what's happening.

Overall, since the early 1980s, the laws have changed to support victims greatly, so I don't want to sound like I'm trashing domestic violence policy. We've come so far in the past 40 years in terms of where we started. But we've also found over the past several decades of studying this, that some of those laws just don't work. They have unintended consequences.

And I would imagine having to look at race as a part of studying this issue further.
Oh, absolutely. That's definitely something that should happen. Obviously, there are grave concerns in our country about racial bias and police treatment of people of color. That all plays into this whole issue. There's just a lot more digging that needs to be done.