What Is “Mandatory Arrest” for Domestic Violence?
New York State has “Mandatory Arrest” laws regarding domestic violence. This means that the police must make an arrest when they have reasonable cause to believe that a person has committed specific crimes against members of their family or household.
Current or former spouses;
Current or former intimate partners, including same-sex couples and teens in dating relationships;
Persons with a child in common, including adopted children; Persons related by marriage (in-laws, etc.);
Persons related by blood (siblings, parents, etc.).
The police are not allowed to ask you if you want the abuser arrested or if you want to “press charges.” In fact, in most mandatory arrest cases, even if you ask the police not to make an arrest, they are required to do so. Mandatory arrest does not necessarily mean immediate arrest. It means that the police must make an arrest even if the abuser leaves the scene before the officers arrive.
Exceptions to Mandatory Arrest
One exception to the mandatory arrest law is when both people are alleged to have committed certain crimes known as misdemeanors. In such instances, the police must identify the “primary aggressor” and arrest only that person. To do that, they should consider if either person:
- Caused any injuries to the other, and the type and seriousness of those injuries;
- Is threatening or has threatened future harm against the other, or another family or household member;
- Has a prior history of committing domestic violence; or
- Acted in self-defense.
You should assume that the abuser could be released from jail any time after an arrest. It is important to plan for your safety because your partner may try to contact you if they are released, even if the Court has issued an order of protection requiring them to stay away from you.
Violation-level offenses, such as harassment, are not subject to mandatory arrest. Police can only arrest at the scene if they witnessed the person commit the violation. Otherwise, the police must advise you of your right to make a citizen’s arrest. The police can physically remove the abuser from the scene, but you would be signing the actual complaint and technically “arresting” the perpetrator.
What Happens After an Arrest Is Made?
If an arrest is made, the police will bring the abuser to the police station for booking, to prepare for arraignment. The arraignment should happen within 24 hours, at which time a judge will read the charges and other details about the incident to the alleged abuser, now called the “defendant.” During the arraignment, several things may happen:
- An attorney may be assigned to the defendant;
- An order of protection may be issued;
- The judge can decide to release the defendant, set bail or hold them in jail without bail. The judge bases this decision on the likelihood that the defendant will return for the next court appearance and whether the defendant has a history of possession of a firearm or any violations of an order of protection;
- The defendant will be given a date to return to court whether the defendant was released or if bail was set;
- The case may be assigned to an Assistant District Attorney (ADA); and/or
- If the defendant is non-English speaking or hearing-impaired, an interpreter should be provided.
If you have questions about what happened at the arraignment, contact the court and/or the DA’s office. The court will be able to tell you if an order of protection was issued. If one was not issued, and you wish to have one, you can discuss this with the DA’s office. You may not be able to get one until your partner returns to court. Call the police if you feel you are in immediate or ongoing danger.
Every county in New York State has a District Attorney (DA) who is an elected official. The District Attorney’s office is made up of the DA and Assistant District Attorneys (ADAs). Sometimes they are called the “prosecutor.” Your local domestic violence program can help you work with the DA’s office.
After the arraignment, you may be contacted by the ADA or a domestic violence specialist from the DA’s office. The DA’s office represents
the people of the State of New York. Their job is to prosecute the defendant. They do not represent you personally. They will ask you about what the abuser did to you and will try to answer your questions. It is a good idea to write their name and phone number down in case you have any future concerns or questions. You can contact your local domestic violence program for an advocate who can provide practical and emotional support.
VINELink is a resource that allows you to check the status of any offender jailed in New York State. You may check online at bit.ly/AboutVINELink. You may also register online or call 1-888-VINE-4-NY (1-888-846-3469) to be notified of an offender’s release by phone call or e-mail. VineMobile is an application that can be downloaded to your mobile device.
What if You Get Arrested?
Sometimes victims get arrested. This can happen if the abuser lies about what happened and the police believe that the abuser is actually the victim, or if the police do not correctly identify the primary physical aggressor. It can also happen if you commit a crime, even if it was while trying to protect yourself. If you are arrested, remember that you are not required to speak to the police. Do not try to explain what happened. The very best thing you can do is ask for an attorney, and do not answer any questions or give any statements to the police.
Once you request an attorney, the court must provide an attorney for you free of charge if you cannot afford one on your own. This attorney is called a Public Defender. Every county in New York has a Public Defender’s office, and you will be given information on how to get a Public Defender at arraignment.
Ask your attorney to contact the ADA handling your case and explain the situation. If there have been times when the police have responded before, and you have been identified as a victim, make sure to tell your attorney. Do not contact the DA’s office on your own. If you are being prosecuted for a crime, you are a defendant, and they are not allowed to talk to you without an attorney.
An advocate from the domestic violence program can also be helpful to you if you get arrested. They can help you sort out your options and understand the court process.