Practical Implications of Current Domestic Violence Research: For Law Enforcement, Prosecutors and Judges

Published June 2009

Chapter 6. Prosecution Responses

Section  17 — Can "first" offenders be safely diverted or discharged?

In many jurisdictions, a substantial proportion of domestic violence defendants are diverted or given dispositions without having guilty findings imposed. Often, these dispositions are given to "first" offenders. Notwithstanding this trend, a trio of studies has found that a minimum of a quarter of defendants so sentenced reabuse or violate the terms of their conditional release.

In the Quincy, Mass., arrest study, a quarter of the arrested defendants were continued, without a finding to be dismissed, if they remained arrest free for six months to one year. These dispositions were reserved for defendants with less serious prior criminal and domestic abuse histories. These defendants were half as likely to have had prior records for domestic violence or crimes against persons or to have been sentenced to probation previously. Unlike those sentenced to probation or jailed who began their criminal careers as teenagers, these defendants began theirs at an average age of 25. Nonetheless, a quarter of those continued without a finding were arrested or had new protective orders taken out against them within two years of their study arrest. Although this reabuse rate was still half that of defendants with more substantial prior criminal histories, it was substantially higher than prosecutors and judges had anticipated. [138] Similarly, a little more than a quarter of the abusers (27.5 percent) who were given a conditional discharge in Cook County violated the conditions. [107]

In Rhode Island, probationary sentences for domestic violence cases without underlying suspended sentences constitute an in-court diversion much like cases continued without a finding in Massachusetts. (A probationary sentence in Rhode Island does not constitute a conviction under state law and therefore does not count as a sentence enhancement to a former or subsequent conviction. In the study, those sentenced to probationary sentences were most likely to be "first" domestic violence offenders.) Although the average defendant given a suspended or split sentence had 1.1 and 1.9 prior domestic violence arrests, respectively, those sentenced to probation had 0.5 prior arrests. Nevertheless, the rearrest rate for domestic violence for probated defendants was 34.8 percent, compared to 43.6 percent for those given suspended sentences and 48.1 percent given split sentences. [141]

Implications for Prosecutors

Prosecutors must exercise caution in recommending case diversion or conditional discharges, even if abusers have minimal prior criminal histories. (Research basis: Limited site studies and broader research on offender risk previously cited.)

Date Created: June 5, 2009