As a by-product of some very high profile, and very tragic, cases, police in many jurisdictions have instituted mandatory arrest policies.  This has happened in areas such as domestic and child abuse, where they are determined not to have another Joel Steinberg case. 

The problem was that the decision to arrest was previously left to police discretion, which turned out not to be a very good method.  Police tended too often to excuse or overlook cases of abuse, seeing it as something that the individuals should work out on their own, or perhaps being unduly sympathetic to the usually male abuser and unwilling to go any further than stop the immediate problem.  They just weren’t willing to interfere with the family dynamic, even if that dynamic involved a few beatings now and then.

To prevent these front page disasters from coming back to haunt the public’s vision of police competence, policies were developed that required police officers to arrest someone whenever they found a domestic assault.  With children, mandatory reporting laws were enacted (since the abuse at home was almost never reported and was only learned of when the ambulance arrived) and police were required to take extreme measures.

Naturally, the law of unintended consequences kicked in as a result of these policy changes.  First, as the New York Times op-ed today by Radha Iyengar notes, it has resulted in fewer calls to police by domestic partners who may want to the abuse to stop, but do not want an arrest made.  Having come to realize that by calling police an arrest was inevitable, they have chosen not to do so.  In these states, murders of domestic partners has increased.

But another development has grown out of these mandatory arrest policies: People have come to realize that by making the right complaint, they can guarantee the arrest of someone who, for whatever reason, is the target of their ire.  They have learned how to game the system.

The distinction here is that the “abuser” is the purported victim.  Scorned women can now get their revenge on men by merely saying the right words, knowing that at the very minimum they will be taken into custody for the period until arraignment.  Ha! That will show them. 

In one particularly egregious incident, I saw an adult use this against a child, claiming an assault of his child to fudge the arrest of another child.  It was a set-up from the word go, and the cops knew it.  It stunk all around, with a school-yard “injury” bootstrapped into a deliberately false claim of an attack in order to teach the parents of the “perp” child a lesson in who has more clout. 

Worse yet, the adult complainant had become so adept at gaming the system that he had done it to his spouse during a vicious divorce (where he was able to keep custody of his children via a series of restraining orders obtained on false claims) as well as obtain civil settlements from no less than 7 others in the year preceding the criminal complaint against the innocent child.  There are people who will lie and cheat.  Sometimes, the system will allow these people to claim to be the victim and will do their dirty work for them.

Does this happen with enough frequency to say that the system is broken?  It appears unlikely that the problem is that pervasive, although it’s impossible to say since we can’t tell how many false victims abuse innocent defendants in this system.  But if you or your child happens to be the victim, it doesn’t really matter how widespread the abuse is.  Your focus tends to be on your own situation, and this is how it should be.  Nobody really wants to take one for the team when it comes to being prosecuted.

This is not to say that police should return to the old days of absolute discretion, leaving wives to be beaten by their husbands, or children to be beaten by their parents.  But policies that are so inflexible that they do not permit the police to refuse to arrest when the believe that the complainant is a liar using the system for improper purposes go too far.  This all or nothing approach is another knee-jerk reaction that shift the burden of harm from one party (the abused spouse or child) to another party (the innocent spouse or child). 

Politicians love magic bullet solutions, which is why they pass a law with someone’s name on it whenever there is a particularly horrific tragedy on the front page of the tabloids.  It resonates with people, who want answers without too much thought.  But after the backslapping dies out, cooler and more thoughtful heads need to consider the simple solutions and address the secondary harm left in their wake.  We need to find answers that resolve the first problem without creating the second.  And society has enough warped people that we should anticipate how they will find a way to abuse the system.