Mandatory Arrest in Domestic Violence Cases

Mandatory Arrest in Domestic Violence Cases

"Mandatory Arrest in Domestic Violence Cases" by Justice Center, University of Alaska Anchorage. Alaska Justice Forum 25(3): 9. This article describes the provisions of Alaska Statute 18.65.530, which was passed as part of the Domestic Violence Prevention and Victim Protection Act of 1996 and which requires law enforcement officers to arrest persons who the officer has probable cause to believe have committed domestic violence, have violated a domestic violence protective order, or have violated a condition of release.

Alaska’s mandatory arrest statute was passed as part of the Domestic Violence Prevention and Victim Protection Act of 1996 with the support of prosecutors, law enforcement, and advocates for domestic violence victims in the state. Alaska Statute 18.65.530, “Mandatory arrest for crimes involving domestic violence, violation of protective orders, and violation of conditions of release,” sets out conditions for arrest and minimum sentencing requirements. A law enforcement officer is required to make an arrest with or without a warrant:

if the officer has probable cause to believe the person has, either in or outside the presence of the officer, within the previous 12 hours, (1) committed domestic violence, except an offense under AS 11.41.100-11.41.130, whether the crime is a felony or misdemeanor; (2) committed the crime of violating a protective order in violation of AS 11.56.740; (3) violated a condition of release imposed under AS 12.30.025, 12.30.027, 12.30.029….

The statute provides criteria for an officer to use when determining who is the “principal physical aggressor.” A “principal physical aggressor” evaluation must be made in domestic violence cases if there are cross complaints “arising from the same incident.” In rare circumstances, an officer may determine that no arrest should be made. An “authorization not to arrest” must first be granted by a prosecutor from “the jurisidiction in which the offense under investigation arose,” and the officer must later report in writing why an arrest was not made. A prosecuting attorney is on call and available by phone to law enforcement in all parts of the state to provide an officer with an authorization, if needed.

Under Alaska law, there is a 20-day minimum sentence if the defendant is in violation of a domestic violence protection order, a 30-day minimum sentence if the defendant has a prior conviction for assault or domestic violence assault, and a 60-day minimum sentence if the defendant “has been previously convicted two or more times of a crime against a person or a crime involving domestic violence, or a combination of those crimes.” Aggravating factors that can increase the length of the normal minimum sentence required by the statute include the presence of a child under the age of 16 during a felony crime involving domestic violence, as well as a domestic violence offense committed at a shelter or facility providing services to domestic violence and sexual assault victims. In addition, recent legislative changes have upgraded certain misdemeanor assaults to a Class C felony and have added a new provision to the animal cruelty statute dealing with “intent to intimidate, threaten or terrorize another person.” Some domestic violence convictions also carry federal legal consequences. Under federal law it is “unlawful to sell or dispose of a firearm” to a person convicted of a qualifying domestic violence misdemeanor.

The terms “domestic violence and “crime involving domestic violence” have a broad meaning under AS 18.66.990(3) & (5). “Acts of domestic violence” as defined under the statute go beyond physical assault; acts of domestic violence also include burglary, criminal trespass, arson or criminally negligent burning, criminal mischief, terrorist threatening, violating a protective order, and harassment. In addition, the statute defines domestic violence as an offense committed “by [one] household member against another household member.” The definition of household member encompasses more than persons living in the same residence. It includes many people who do not live together: “adults or minors who are current or former spouses, adults or minors…who have lived together, adults or minors who are dating or have dated, adults or minors who are engaged in or who have engaged in a sexual relationship, adults or minors who are related to each other up to the fourth degree of consanguinity…, adults or minors who are related or formerly related by marriage, persons who have a child of [their] relationship, and minor children in a relationship that is described [in the statute].”