Presumptive Arrest in Partner Assault: Use of Discretion and Problems of Compliance in the New Zealand Police

By Cross, Jenny; Newbold, Greg | Australian and New Zealand Journal of Criminology, April 2010 | Go to article overview

Presumptive Arrest in Partner Assault: Use of Discretion and Problems of Compliance in the New Zealand Police


Cross, Jenny, Newbold, Greg, Australian and New Zealand Journal of Criminology


Since pro-arrest policies in domestic violence became popular in the United States in the 1980s, numerous western countries have followed suit. In most cases, research has shown that implementation of the policies has fallen short of expectations, with arrest rates that are surprisingly low. In New Zealand, pro-arrest strategies have been employed since 1987 and results have been similar. This article argues that one of the reasons for noncompliance in New Zealand (and probably elsewhere), is that the complexities of domestic violence situations make pro-arrest difficult to apply in practice. Moreover, in order to protect themselves from official criticism for deviating from policy, in this study frontline police sometimes filed incomplete or inaccurate incident reports. This made it hard to determine exactly how well the policy was being implemented and whether or not it was working.

Keywords: domestic violence, policing, pro-arrest, arrest discretion

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Violence within the home has long been recognised as an endemic aspect of domestic dynamics, but its identification as a problem requiring serious police involvement has been relatively recent (Finn et al., 2004; Melton, 1999, pp. 2-4). From about the mid-1960s onward, the arrival of the so-called 'second wave' of feminism highlighted a number of gender issues, one of which was violence between intimates (see, e.g., Martin, 1976; Steinmetz, 1977; Straus, Gelles, & Steinmetz, 1980; Walker, 1979). As a result of this pressure, through direct lobbying and through the courts, women began to call for a change in the approach that police had traditionally taken in domestic matters and to demand greater protection (Buzawa & Buzawa, 1990). Debate over how to achieve this led to a number of police response experiments in the United States and Britain in the early 1980s. Publicised internationally, the outcomes had a dramatic effect on the way police in western jurisdictions reacted to family violence.

As a result, from about 1980, 'zero tolerance' or 'mandatory arrest' tactics, requiring arrests in domestic assault cases, and 'pro-'/'preferential'/'presumptive' arrest strategies, which permit a degree of discretion, became increasingly common (Felson & Ackerman, 2001, p. 657; Garner & Maxwell, 2000; Hirschel et al., 2008; Walker, 1992). However, despite early success, the effectiveness and practicality of proactive responses soon came under further contention. This article examines the case of New Zealand, where presumptive arrest policies have been in place since the late 1980s. Its purposes are: (1) to describe the process that led to the adoption of a pro-arrest domestic violence policy in 1987, (2) to discuss changes in domestic violence policing policy that have taken place in New Zealand since 1980, (3) to examine current police responses to domestic violence in relation to this policy, (4) to explain any discrepancies observed between policy requirements and what actually happens in practice. The significance of the study is that it is the first of its type to have been conducted in New Zealand, and that it discusses the consequences of a bureaucratic strategy that is only partially applicable on the street.

Traditional Domestic Violence Policing

Before 1980, the New Zealand Police took a minimalist approach to dealing with family disputes, along similar lines as other countries (see Chaney & Saltzstein, 1998; Dobash & Dobash, 1979; Edwards, 1989; Eigenberg, Scarborough, & Kappeler, 1996; LaGrange, 1993, pp. 146-8; Mugford & Mugford, 1992, pp. 328-331; Smith & Gray, 1983). Domestic violence-related arrests were rare, with police tending to lay charges only when circumstances were clear, an assault was serious, and/or a victim could be relied upon to testify. Female complainants were generally seen as temperamental and unreliable (Ford, 1993; Marsh, 1989, p. 9). In 1964, the Police General Instructions warned about the propensity of drunken wives to lodge complaints, which they would subsequently withdraw, and noted that in any case, the majority of assaults in the home were minor (Butterworth, 2005, p. …

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