Solutions

A growing number of groups have come to view the nation’s domestic violence policies and laws as “broken.” The system is not responsive to victims’ needs,^[1] ignores fundamental due process protections,^[2] is fraught with sex bias against men,^[3] and lacks evidence of effectiveness.^[4]

As a result, over 100 organizations are calling for major reforms.^[5] A broad consensus is emerging on the need to re-direct domestic violence (DV) policies so they are more focused on the provision of mental health services, and less focused on arrest, prosecution, and incarceration.^[6] For example 46 state domestic violence and sexual assault coalitions have expressed remorse for their over-emphasis on “increased policing, prosecution, and imprisonment as the primary solution” to domestic violence.^[7]

In 2018, leading professors, attorneys, and other opinion leaders endorsed a document titled 14 Principles for VAWA Reform.^[8] Subsequently during the Fall of 2021, an Expert Panel consisting of leading scholars and policy experts met on a weekly basis to review the relevant research and develop the recommendations that form the basis of these Legislative Proposals. The members of the Expert Panel were: Jennifer Cox (University of Alabama), Donald Dutton (University of British Columbia), John Hamel (Editor-in-Chief, Partner Abuse), and Brenda Russell (Pennsylvania State University, Berks), along with staffers of the Coalition to End Domestic Violence: Edward Bartlett, Destiny Blume, and Robert Samery.

The Legislative Proposals to Reform Domestic Violence Policies provide summaries of the relevant issues, outline legislative solutions, and whenever available, offer previously proposed legislative language.

I. HOTLINES, COUNSELING, AND TREATMENT

The overall trend is to expand the use of telephone hotlines, counseling, and mental health treatment, in order to decrease the necessity for arrest and prosecution.

Telephone Hotlines

Telephone hotlines, such as the National Domestic Violence Hotline,^[9] are widely available to assist domestic violence victims. But hotlines for potential abusers are far less common. The 10 to 10 Helpline, based in Massachusetts, offers support and de-escalation assistance for male and female abusive partners who want to change their behavior. The Helpline is also available to family members, friends, and professionals who want to help someone stop using abuse.

The Helpline describes itself as “part of a broad national movement that seeks to increase non-criminal responses to intimate partner violence through the creation of community-based restorative practice.” Trained responders work with callers to help callers understand where their abuse comes from and develop goals and strategies for handling conflicts safely. All calls are free, anonymous, and confidential.^[10] The Helpline was initially established using funds from the 2020 CARES Act.

Legislative Solution:

Legislation should highlight the need for a telephone intervention service that is staffed by qualified persons and is anonymous, free, and confidential. More information is available on the website of the 10 to 10 Helpline.

Training of Group Facilitators and Treatment Providers

Group facilitators and treatment providers need to possess adequate training and experience. Persons who are trained in the “power and control” model of domestic violence often lack the skills to form a therapeutic alliance with the client.

Training of treatment providers should emphasize reliance on peer-reviewed research, e.g., the Partner Abuse State of Knowledge Project, and the use of validated surveys such as the CDC National Intimate Partner and Violence Survey (NISVS). Whenever possible, trainers should seek assistance from educational experts.

Legislative Solution:

A group of 17 leading researchers with expertise in domestic violence treatment methods has recommended the following standards:^[11]

Required Group Facilitator Education and Training:

“Facilitators should be licensed mental health professionals, or have at a minimum a bachelor’s degree in psychology or related field and be under the direct supervision of a mental health professional.
“Before working with perpetrators, facilitators should first obtain a minimum 40 hours of classroom training, including:
- 16 hours on basic IPV knowledge, including empirical information on types and prevalence rates of IPV, contextual factors, motivation, relational dynamics, risk factors and impact on victims and families
- 4 hours on the characteristics and efficacy of perpetrator intervention, including BIPs
- 4 hours on the role of Batterer Intervention Programs (BIPs) in the community-coordinated response to domestic violence
- 8 hours on assessment and treatment planning
- 8 hours on conducting treatment in the psychoeducational group format
“Facilitators should be familiar with the heterogeneity of both intimate partner violence and characteristics of perpetrators, and have exposure to different models accounting for the development and maintenance of intimate partner violence.
“Facilitators should be trained in all relevant evidence-based assessment and treatment models and approaches.
“Practitioners who work with perpetrators within the modalities of individual, couples and family therapy should obtain a minimum of 16 additional classroom training hours in those modalities, and be licensed mental health professional or registered interns under supervision by a mental health professional.
“Others with a minimum bachelor’s degree in psychology or related field and under the direct supervision of a mental health professional may work within a group format, provided that it is a psychoeducational rather than a therapeutic or process group.
“Training materials/information should be based on the most reliable and current scholarly research, such as the Partner Abuse State of Knowledge literature reviews (www.domesticviolencerearch.org), or other resources that may become available in the future.
“Trainees should be expected to demonstrate mastery of relevant training material – for example, as demonstrated through completion of a test of this knowledge.
“Following classroom training, practitioners should complete hands-on training as they provide therapy or conduct groups with IPV perpetrators for a time period that is sufficient to develop skills for independent practice, typically a minimum of 1 year, or the time period required to do 52 client sessions, under the supervision of a Certified IPV Practitioner:
- 1 hour weekly supervision, or 2 hours if practitioner is working with 3 or more therapy clients or groups
- Supervision of non-therapists to take place during group sessions/or observed through one-way mirror, for 24 weeks
- Supervision of therapist interns must take place in group sessions/or observed through one-way mirror for 12 weeks
- Supervision of licensed therapists can be done outside the therapy office/group room
“Requirements for Trainers:
- Be a licensed mental health professional with at least an MA level degree in the social sciences
- Have worked in the field of IPV for a minimum of 10 years, with at least 4 years of direct experience working with IPV perpetrators.
- Be a Certified IPV Practitioner, having completed the 40-hour classroom training and hands-on 52-week supervised training.”

Mental Health Assessment

Effective treatment programs begin with a thorough and careful assessment by a qualified mental health professional.

Legislative Solution:

Leading researchers have proposed the following:^[12]

“Perpetrator programs should base treatment on the results of a thorough and sound assessment protocol that:

(1) Identifies individuals at risk for repeat violence who pose a continuing threat to victim safety, using a reliable and validated instrument such as the ODARA, SARA or Propensity for Abusiveness Scale and, when victim contact is possible, the Danger Assessment or other validated victim questionnaire.

(2) Identifies relevant targets for treatment, based on an understanding of known risk factors, a thorough psychosocial history and use of validated questionnaires to determine type, frequency and severity of abuse perpetrated, impact on the victim and family, motivation to change, and all personality, relationship and social factors relevant to a client’s treatment progress.”

Treatment: General Considerations

Many states mandate one-size-fits-all Batterer Intervention Programs, based on outdated sociological theories and often delivered in an authoritarian “psychoeducational” format, that lack convincing evidence of effectiveness for most offender populations (Babcock, Green, & Robie, 2004;^[13] Coulter & VandeWeerd, 2009;^[14] Feder & Wilson, 2005^[15]).

In contrast, group approaches that utilize Motivational Interviewing principles and are based on evidence-based approaches such as cognitive-behavioral therapy (CBT) are viewed as the ideal approach, especially for offenders who are no longer with their partner, remain violent, and require acquisition of social skills. The group format can help the offender to feel understood among peers and overcome feelings of shame, thereby motivating him or her to remain in treatment.^[16]

But many states have established restrictive treatment standards that preclude the use of family therapy, couples counseling, or other approaches.^[17] In contrast, in Washington State^[18] and Colorado,^[19] the type of treatment is based on a formal risk assessment and is tailored to the needs of the individual. Therapists are encouraged to use a phased approach in which abusive behaviors are addressed first, followed by more intensive and potentially stressful exploration of trauma and childhood-of-origin issues.

Legislative Solution:

Legislation should allow the full range of treatment modalities, including individual therapy, couples counseling, group treatment, family counseling, and other methods.^[20]

Previous Language:

The Colorado Domestic Violence Offender Management Board has developed a 229-page manual that is generally consistent with the above recommendations. The document covers the following topics:^[21]

Offender Evaluation
Offender Treatment
Victim Advocacy
Coordination with the Criminal System
Provider Qualifications

Individual Therapy

Individual therapy is appropriate for clients with serious mental health issues or otherwise cannot function in a group setting, for whom overcoming their violence requires more than the acquisition of pro-social skills. Its advantages are primarily in the flexibility of developing a treatment plan suited to the client’s individual needs. Individual treatment can hold offenders more accountable than group treatment, particularly those groups that are too large or led by poorly trained facilitators.^[22]

Legislative Solution:

Policies should allow use of the full range of treatment modalities, including individual therapy, as appropriate.

Couples Counseling

Offenders who are violent only in their families and do not have serious mental health problems are good candidates for couples work. Research has shown that couples are at a higher risk for violence when both partners are insecurely attached and especially when an anxiously attached partner with a fear of abandonment is paired with a dismissive partner who has a fear of intimacy.^[23]

Couples counseling is preferable for a number of reasons:

Many individuals in abusive relationships are too ashamed or afraid to seek help on their own, and find the couples therapy label more acceptable.
In the couple format, clients have the opportunity to practice with each other the anger management and communication skills.
Many couples engage in reciprocal violence, which can be effectively addressed in the couples setting.

Couples counseling should be undertaken only when both parties are willing and the therapist believes it is safe.

Legislative Solution:

Policies should allow use of the full range of treatment modalities, including couples counseling as appropriate.

Restorative Justice

Restorative Justice (RJ) is an evolving, heterogeneous approach to the resolution of criminal conduct that focuses on restitution, not punitive methods.^[24] The three main methods of RJ used to address intimate partner violence are complainant–perpetrator mediation, family group conferencing, and peacemaking and sentencing circles. RJ also has been recommended to be used as a part of community policing.^[25]

RJ can be used at any point in the process: pre-arrest, pre-conviction, or post-incarceration. An RJ session typically includes a facilitator, the person who caused harm, the person who was harmed (although not all RJ programs include the victim), family members, and/or community members. An in-depth literature review of RJ programs for domestic violence, including intervention methods, outcomes, and more is available.^[26]

Legislative Solution:

Senator Patrick Leahy of Vermont has noted, “One size doesn’t fit all in the criminal justice system. I’ve been looking at things like restorative justice principles and practices. I think utilizing restorative justice approaches is one of those necessary improvements” to the Violence Against Women Act.^[27]

Policy-makers should consider the implementation of restorative justice methods as a substitute for, or in some cases an adjunct to, traditional criminal approaches. Treatment standards should allow the use of restorative justice methods, and insurance plans should provide coverage for such treatment programs.^[28]

Previous Legislative Language:

The Violence Against Women Act reauthorization bill, H.R. 1620 which passed the House of Representatives on March 17, 2021, included this language.^[29]

“Jurisdictions are encouraged to develop and implement alternative methods of reducing crime in communities, to supplant punitive programs or policies. For purposes of this paragraph, a punitive program is one that imposes a penalty on an alleged perpetrator of domestic violence, on the basis of a request by the victim for law enforcement or emergency assistance.”

II. INITIAL COMPLAINT/ALLEGATION

Some cases of wrongful arrests can be traced to a false allegation.

False Allegations

Eight percent of Americans report they have been falsely accused of partner abuse, child abuse, or sexual assault,^[30] often arising from a problem known as Legal and Administrative Abuse.^[31] In divorce cases, false allegations of child abuse may be combined with attempts to alienate the child from the other parent, known as parental alienation.^[32] These false allegations harm the reputations and livelihoods of the accused, harm parent-child relationships, diminish the credibility of future victims, and dissipate limited criminal justice resources.

Four states have passed legislation regarding the use of false 911 reports that are made to harass a person based on characteristics such as sex, race, or sexual orientation:^[33] California,^[34] Connecticut,^[35] New Jersey,^[36] and New York.^[37]

Legislative Solutions:

False allegations of domestic violence threaten fundamental notions of justice and fairness. The CEDV recommends that policy-makers:

Limit definitions of domestic violence to physical “violence” or threats of harm.
Require that accusers provide objective evidence (visible injury, medical record, police report, cell phone recording) of violence or harm before they can qualify for services and benefits.
Uphold defendants’ constitutionally-protected rights (e.g., due process).
Assure that the accused are provided with effective legal assistance to assure fair treatment under the law.
Address the problem of indigent parents who are forced to defend themselves from a false allegation in a civil hearing, and are unable to hire a defense attorney.
Prosecute persons who knowingly file false statements and engage in perjury.

Previous Legislative Language:

Iowa has enacted HF 821:^[38]

AN ACT CREATING A CIVIL ACTION RELATING TO HARASSMENT BY THE REPORTING OF FALSE INFORMATION TO LAW ENFORCEMENT AUTHORITY.

Section 1. Section 708.7, Code 2021, is amended by adding the following new subsection:

A person injured by a violation of section 1, paragraph “a”, subparagraph (4), may bring a civil action against the person whose conduct violated section 1, paragraph “a”, subparagraph (4).

III. POLICE RESPONSE: GENERAL CONSIDERATIONS

Training of Police Officers

Many domestic violence training programs of police officers, prosecutors, judges include information that is biased and inaccurate.^[39] This inaccurate information serves to compromise and bias the overall criminal system response.

Legislative Solution:

The CEDV recommends that lawmakers assure that public funds are being used to disseminate domestic violence information that is based on empirical evidence that is accurate and unbiased.

Previous Legislative Language:

Proposed amendment to the federal Violence Against Women Act, 2013:^[40]

“Requirement for scientifically valid programs. — All grant funds made available by this Act shall be used to provide scientifically valid educational programming, training, and public awareness communications regarding domestic violence, dating violence, sexual assault, and stalking that is produced by accredited entities, as appropriate.”

Triage

CEDV recommends this framework to guide police response to domestic violence calls for service:

VERBAL OR PSYCHOLOGICAL ABUSE ONLY: In general, abuse incidents that are non-physical in nature and involve no previous DV calls or outstanding warrants, police should provide DV resources, and refer the persons for mental health evaluation and treatment. No arrest should be made.
NO SERIOUS INJURY, FIRST-TIME INCIDENT: In general, DV offenses that do not involve the infliction of serious physical injury and are first-time should result in a referral for assessment by a mental health professional and treatment. Information on victim services should be provided to both parties. No arrest should be made. Assessment for treatment diversion should be conducted by an experienced mental health professional with forensic experience and expertise in family violence,
NO SERIOUS INJURY, REPEAT INCIDENT: In general, DV offenses that do not involve the infliction of serious physical injury but are repeat incidents should be eligible for a DV diversion program. The police officer should issue a civil citation – not make an arrest – that refers the offender(s) for assessment and DV diversion. In many cases, police will need to cite both persons. The officer should also:
1. Provide the persons with information on how to obtain a restraining order and enlist the aid of a victim advocate, and
2. Consider the option of directing the parties to separate.
SERIOUS PHYSICAL INJURY: In general, DV offenses that do involve the infliction of serious physical injury should be processed according to traditional criminal justice procedures.

Administrative Solution:

This four-part framework should be incorporated into the standard operating procedures of law enforcement agencies.

IV. POLICE RESPONSE: ALTERNATIVES TO ARREST

Problems with Mandatory Arrest

Many jurisdictions have policies that mandate or encourage arrest for domestic violence cases. Such policies likely violate constitutional “probable cause” requirements, and in practice are biased against males. Mandatory arrest also triggers the workings of the rest of the criminal system, including prosecution, imprisonment, probation, and parole.^[41]

In most cases, victims do not want the offender to be arrested, they only want the abuse to stop.^[42] One study found that failing to respect victim preferences by making an arrest resulted in decreased calls to police for subsequent acts of violence.^[43]

Two studies have found that mandatory arrest policies actually increase the likelihood of subsequent partner homicides:

Analysis of FBI Supplementary Homicide Reports: An analysis of 15 states with mandatory arrest laws found higher rates of intimate partner homicides, compared to eight states with “recommended” arrest policies.^[44]
Milwaukee Domestic Violence Experiment: Victims were 64 % more likely to die of all causes if their partners were arrested and jailed, than if the offender was warned and allowed to remain at home.^[45]

Arrest of both persons, often referred to as “dual arrest,” is generally discouraged for a number of reasons, including the adverse effects on young children.^[46]

Legislative Solution:

The CEDV recommends that states with mandatory or pro-arrest policies rescind such policies. One observer has urged that, “VAWA should eliminate all support for pro-arrest laws, and instead redirect grant money to federal housing assistance.”^[47]

In addition, CEDV recommends that police departments provide annual reports of sex-specific numbers of arrests, so biases can be monitored and eliminated.

Deflection

Police officers increasingly are utilizing “deflection” approaches that are designed to reduce arrest.^[48] Such deflection methods entail the provision of DV resources, including contact information on local shelters, mental health treatment, and victim helplines, and are being employed in more than 250 jurisdictions across the country.^[49] Other deflection methods include:

Social worker participation in responding to 911 calls, as recommended by the National Association of Social Workers^[50]
Involvement of volunteer clergy members, such as the Community Clergy Connect program in Palmdale, California^[51]
Use of police-issued civil citations — see below

Legislative Solution:

Legislation should encourage police officers to utilize deflection methods to reduce arrests.

Civil Citations

Citations provide an alternative to booking and jail, and allow people who are not public safety or flight risks to remain in the community, go to work, and take care of family members. States can use citations to reduce jail populations and provide local cost savings.^[52]

Legislative Solution:

Most states allow for the use of civil citations as an alternative to making an arrest for domestic violence.^[53] But in many states, police officers seldom use this option.

Previous Legislative Language:

The Illinois Pretrial Fairness Act allows law enforcement officials to issue a citation in lieu of arrest for persons accused of Class B and C criminal misdemeanor offenses “who pose no obvious threat to the community or any person, or who have no obvious medical or mental health issues that pose a risk to their own safety.”^[54]

Pretrial Release

Crime victims prefer rehabilitation and community treatment of offenders over imprisonment by a margin of 3 to 1.^[55] One response to public demand is the use of pretrial release programs. The National Conference of State Legislatures has collected extensive resources about pretrial policy, including the statutory framework of pretrial release^[56] and a compilation of state laws.^[57]

Regarding domestic violence post-arrest, pretrial release, the program in Buncombe County, North Carolina first administers the Virginia Pretrial Risk Assessment Instrument to guide the judge’s release decision, and then the Ontario Domestic Assault Risk Assessment to help pretrial services determine the supervision level. Based on this information, the judge can set pretrial conditions such as prohibiting contact with the victim; prohibiting the consumption of alcohol; and setting a secured bond appearance.

Depending on the severity of the ODARA score, community supervision of the offender consists of periodic telephone calls, field contacts, unannounced visits, and if necessary, obtaining a warrant for arrest. Pretrial release staff also contacted the victims. As a result, the number of domestic violence jail bookings has decreased by 10.6%.^[58]

Legislative Solution:

The CEDV recommends that lawmakers enact laws that promote the establishment of pretrial release programs, similar to the one established in Buncombe County, North Carolina.

Previous Legislative Language:

The Illinois Safety, Accountability, Fairness and Equity-Today (SAFE-T) Act^[59] mandates reforms impacting many areas of the criminal justice system, including pre-arrest diversion for domestic violence. The Act establishes a Domestic Violence Pretrial Practices Working Group:

“(a) The Executive Director of the Illinois Criminal Justice Information Authority shall convene a working group to research and issue a report on current practices in pretrial domestic violence courts throughout the state of Illinois.

“(b) The working group shall include, but is not limited to, designees from the Administrative Office of the Illinois Courts, the Illinois Criminal Justice Information Authority, Domestic Violence victims’ advocates, formerly incarcerated victims of violence, legal practitioners, and other entities that possess knowledge of evidence-based practices surrounding domestic violence and current pretrial practices in Illinois.

“(c) The group shall meet quarterly and no later than 15 months after the effective date of this amendatory Act of the 101st General Assembly issue a preliminary report on the state of current practice across the state in regards to pretrial practices and domestic violence, and no later than 15 months after the release of the preliminary report, issue a final report issuing recommendations for evidence-based improvements to court procedures.”

Accountability

Public accountability of arrest patterns is essential In order to end sex bias.

Legislative Solution:

Police departments need to provide annual reports of the numbers of domestic violence arrests, broken down by the sex of the suspect.

V. POLICE RESPONSE: INVESTIGATIONS

Coercive and ‘Victim-Centered’ Investigations

In the past, police interviews of suspects relied on a confrontational approach known as the Reid Technique, which seeks to overcome the suspect’s resistance to confess.^[60] The Reid Technique has been strongly criticized, with states beginning to ban use of the Reid Technique with minors.^[61] Persons now recommend use of Cognitive Interviewing methods, instead.^[62]

In addition, many police officers are being pressured to use investigative methods often called “victim-centered”^[63], also referred to as “trauma-informed”^[64] or “Start By Believing.”^[65] Such investigative methods represent a form of police misconduct because they violate police ethics codes,^[66] remove the presumption of innocence,^[67] worsen the problem of confirmation bias,^[68] and predispose to wrongful convictions.^[69]

Previous Legislative Language:

SB2122, enacted in 2021 in Illinois, bans law enforcement from lying to minors during an interrogation. The key section of the law states:^[70]

14		(c) The presumption of inadmissibility of a confession of
15		a minor, who at the time of the commission of the offense was
16		under 18 years of age, at a custodial interrogation at a police
17		station or other place of detention, when such confession is
18		procured through the knowing use of deception, may be overcome
19		by a preponderance of the evidence that the confession was
20		voluntarily given, based on the totality of the circumstances.

Predominant Aggressor

In about half of cases, intimate partner violence is mutual, meaning both persons are exchanging blows.^[71] Predominant aggressor policies were developed in response to calls to avoid dual arrests of the parties. The International Association of Chiefs of Police defines “predominant aggressor” as the individual who “poses the most serious, ongoing threat, who might not necessarily be the initial aggressor in a specific incident.”^[72]

“Predominant” aggressor is different from “primary” aggressor, which is defined as the “One who first employs hostile force. The party who first offers violence or offense. He who begins a quarrel or dispute, either by threatening or striking another.”^[73]

A review of predominant aggressor criteria reveals that they often include questions about “height” and “weight,” thereby biasing the tool against the male party.^[74] While other validated risk assessment tools are available, persons have questioned whether front-line police officers have the time or expertise to effectively use these tools.^[75] Indeed, research shows that police officers are generally deficient in accurately assessing a suspect’s guilt or innocence.

Legislative Solution:

Given that predominant aggressor policies lack a sound scientific basis and are biased in their application, the CEDV recommends that police officers be strongly discouraged from the use of predominant aggressor policies.

In contrast, the identification of the person who initiated the violence in the current incident, referred to as the “primary aggressor,” is appropriate in some instances.

VI. PROSECUTION

No-Drop Prosecution

The National District Attorneys Association has highlighted the differences with domestic violence cases: “While victims of other crimes may want justice, vindication, and restitution, many victims of domestic violence do not; instead, they want the abuse to stop or their abuser to be taken for the night but not necessarily arrested and prosecuted.”^[76]

Research suggests that no-drop policies may actually be harmful. One study found that permitting the victim to drop charges following an arrest by warrant resulted in a significantly lower chance of new violence during and six months following the court appearance, compared to when victims were denied the opportunity to drop.^[77]

For these reasons, the American Prosecutors Research Institute recommends, “As a consequence of these characteristics of domestic violence, prosecutors should approach domestic violence cases differently and with different goals: Victim safety should be the highest priority, higher than conviction.”^[78]

But ignoring these recommendations, many prosecutors have adopted no-drop prosecution policies, which require the prosecutor to pursue the case, even if the allegation is not provable beyond a reasonable doubt. Such policies eliminate prosecutorial discretion, and are a major reason why domestic violence victims refuse to report future domestic violence incidents.

The National District Attorneys Association (NDAA) opposes the use of no-drop policies:

“In some communities, prosecutors have attempted to implement a no drop policy, advocating for the filing of all cases and refusing to dismiss any cases once charges are filed. The NDAA does not support this approach. Neither the American Bar Association standards nor the filing standards for the NDAA support the prosecution of cases when the evidence does not support a reasonable likelihood of conviction.”^[79]

Instead, the NDAA recommends the use of “evidence-based” prosecution, which emphasizes the reliance on physical evidence such DNA analyses, medical records, photographs, and the like.^[80]

Legislative Solution:

The CEDV recommends the following:

(1) No prosecutor shall:

(a) adopt a no-drop prosecution policy for domestic violence cases, or

(b) implement any other policy that violates the American Bar Association’s Rule 3.8, Special Responsibilities of a Prosecutor, which states, ‘The prosecutor in a criminal case shall: (a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause.’”^[81]

(2) Instead, prosecutors will utilize “evidence-based” prosecutions that rely on physical evidence such as DNA analyses, medical records, photographs, and the like.

Selective Prosecution

Men and women are equally likely to be perpetrators of domestic violence, even the more severe forms of domestic violence that warrant prosecutorial action. And about half of all domestic violence incidents involve mutual physical abuse. Yet, females represent only 16% of defendants in domestic aggravated assault cases.^[82] Selective prosecution violates the Equal Protection Clause of the 14^th Amendment.

Proposed Legislative Solution:

The CEDV recommends that prosecutors should prosecute domestic violence cases without regard to race, sex, ethnicity, or other demographic characteristic. Annually, prosecutors in [name of state] should publish a report that details the demographic characteristics of persons charged and prosecuted for domestic violence during the previous year.

Diversion Programs

In general, domestic violence offenses that are repeat incidents but do not involve the infliction of serious physical injury should be eligible for DV diversion. The police officer should issue a civil citation – not make an arrest – that refers the offender to the diversion program. Many prosecutorial offices sponsor diversion programs that include domestic violence offenders.

Diversion programs also allow the offender to continue to be involved with the family.

Legislative Solution:

A report summarizes the operations of 18 diversion programs around the country.^[83] Domestic violence diversion programs should be made widely available. Laws and policies should encourage prosecutors to establish such programs.

Legislative Language:

In most cases, DV diversion programs have been established at the initiative of individual prosecutors’ offices.^[84] In contrast in Delaware, the DV diversion program was established by legislative mandate:^[85]

AN ACT TO AMEND TITLE 10, CHAPTER 9 OF THE DELAWARE CODE RELATING TO A DOMESTIC VIOLENCE DIVERSION PROGRAM IN THE FAMILY COURT.

Be It Enacted By the General Assembly of the State of Delaware:

Section 1. Amend Chapter 9, Subchapter III, Part B, Title 10 of the Delaware Code, by adding a new section, designated as §943, which new section shall read as follows:

943. First Offenders Domestic Violence Diversion Program

(a) For the purposes of this Section, Domestic Violence shall be considered as any act or acts committed by an adult member of a family against one or more members of his or her family, as that term is defined in 10 Del. C. §901(9), which constitute any of the following criminal offenses under Title 11 of the Delaware Code: offensive touching (§601); menacing (§602); reckless endangering in the second degree (§603); assault in the third degree (§611); terroristic threatening (§621); vehicular assault in the second degree (§62B); sexual harassment (§763); unlawful sexual contact in the third degree (§767); unlawful imprisonment in the second degree (§781); coercion (§791); reckless burning or exploding (§804); criminal mischief classified as a misdemeanor (§811); criminal trespass in the first, second, or third degrees (§§821,1322,1323); harassment (§1311); or aggravated harassment (§1312).

(b) Those acts of Domestic Violence for which an offender may elect to apply for first offender status under this rule shall be limited to the following criminal offenses under Title 11 of the Delaware Code: offensive touching (§601); menacing (§602); sexual harassment (§763); criminal mischief classified as a misdemeanor (§B11); criminal trespass in the first, second, or third degrees (§§B21,822, B23); harassment (§1311); or aggravated harassment (§1312).

(1) Has not been convicted of a violent felony or any domestic violence offense under Title 11 of the Delaware Code listed in subsection (a), or under any statute of the United States or of any state thereof including the District of Columbia relating to a violent felony or acts of Domestic Violence substantially similar to those criminal offenses listed in subsection (a); and

(2) Has not previously been afforded first offender treatment or other diversion programs for Domestic Violence;

(3) Has been charged with a domestic violence offense listed in subsection (b); and

(4) Has appeared at Family Court for a Bail Review/Domestic Violence Interview,

may qualify for the first offense election at the time of arraignment.

(d) At the time of arraignment any person qualifying under subsection (c) of this section as a first offender and who elects to apply under this section shall admit to the offense by entering a plea of guilty, as a first offender. The court, without entering a judgment of guilt and with the consent of the accused, may defer further proceedings and shall place the offender on probation for a period of 1 year upon terms and conditions of which shall include but not be limited to:

(1) Enrollment with a counseling service for the purposes of evaluation and such counseling services as the evaluation counselor deems necessary,

(2) Satisfactory completion of the counseling program,

(3) Evaluation for alcohol and other drug abuse, and successful completion of a course of treatment as may be indicated by the evaluation,

(4) Restitution, where appropriate, to the victim,

(5) No unlawful contact with the victim during the period of probation,

(6) Other such terms and conditions as the court may impose.

(e) If a term or condition of probation is violated, including failure to appear for evaluation at an assigned evaluating agency, the offender shall be brought before the court, or if the offender fails to appear before the court, in either case, upon a determination by the court that the terms have been violated, the court shall enter an adjudication of guilty and proceed as otherwise provided under Title 11 of the Delaware Code.

(a) Upon fulfillment of the terms and conditions of probation, including, but not limited to, satisfactory completion of courses of instruction and/or programs of counseling/rehabilitation, and payment of all costs and fees, the court shall discharge the person and dismiss the proceedings against the offender and shall simultaneously therewith submit to the Attorney General a report thereof which shall be retained by the Attorney General for use in future proceedings, if required.

(a) Discharge and dismissal under this section shall be without

adjudication of guilt and is not a conviction for purposes of this section or for purposes of disqualification or disabilities imposed by law upon conviction of a crime, except the additional penalties imposed for second or subsequent offenses under Title 11 of the Delaware Code.

(b) Any person who elects to apply for first offender status shall by said application be deemed to have waived the right to a speedy trial and further agrees to pay the cost of prosecution as a condition. If a person elects not to apply for first offender status or if the application is not accepted, the matter shall be promptly scheduled for trial.

Section 2. Effective Date. This Act takes effect thirty (30) days after its enactment.

VII. RE-ENTRY PROGRAMS

Circles of Support and Accountability

Restorative Justice principles have been applied in the post-incarceration context, with good results.^[86] In Vermont, the Circles of Support and Accountability (COSA) program now operates at 20 Community Justice Centers across the state.^[87] Established in 2005 by the Vermont Department of Corrections, the COSA model does not bring together offenders and victims into the same setting.

The Vermont Agency of Human Services provides this description of the program:^[88]

“CoSA is a volunteer-driven and community-based model for enhancing community safety through supporting high-risk offenders that are returning home to their communities after a period of incarceration while holding them accountable to pro-social community expectations. Although the model has typically been used to support high-risk sex offenders and has proven a high success rate in reducing recidivism, Vermont has extended use of the practice to other types of offenses.

The most critical component of the CoSA model is that it centers on developing relationships between volunteers and the core member (the person convicted of an offense) based in mutual respect and grounded in shared commitment to the public safety.”

Legislative Solution:

The CEDV recommends that policy-makers consider the implementation of programs similar to Circles of Support and Accountability.

Occupational Licensing

After release from prison, many persons face obstacles in obtaining occupation licensing. These obstacles can increase recidivism.^[89]

Legislative Solution:

The Institute of Justice has developed model legislation titled Collateral Consequences in Occupational Licensing Act that is available online.^[90]

Citations:

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