Colorado’s mandatory arrest law often results in unintended consequences
Domestic violence victims are sometimes mistaken by police for perpetrators, advocates say.
When law enforcement officers arrived at where Ellen and her three young children sat in the car, all crying, the two police officers split up — one stayed with the family while the female officer went to interview the husband, who remained at the home his wife and children had just fled. He had threatened to kill them all that evening after discovering his wife’s email and text communications indicating she was seeking a divorce, Ellen said.
When the officer returned Ellen was reluctant to say anything that would get her husband arrested — even though she had called the cops. She was afraid of what would happen if he was taken to jail. She just wanted a safe place to go with her kids. She told law enforcement only that he had tried to stop them from leaving.
“I didn’t say he grabbed me and that he liked to restrain me by covering my mouth and nose,” Ellen said (Ellen is a pseudonym — she requested anonymity due to multiple death threats from her ex). “Then, she started asking me questions like, ‘Is it possible you hit him, or scratched him?’ It was weird. I’d say ‘no’ and she’d keep asking the same question, but differently.”
Finally, the officer said “I have to bring someone in tonight — he had marks on him so I’m taking you in,” Ellen recalled. “I was in shock. She put handcuffs on me and took me away. He’d scratched his own neck to frame me.”
Despite the 10-year-old son’s pleading with cops to not take them back to their father, that he would kill them, and that he “just wanted to live,” the children were returned to their father while their mother was taken to jail.
Colorado’s mandatory arrest law requires police officers responding to domestic violence events to make an arrest if they determine there’s probable cause that a crime was committed. While victims advocates interviewed for this story say the law is well-intentioned, there are often unintended consequences.
“Every year we deal with at least one victim who has been arrested as the perpetrator, but is actually the victim,” said Kristiana Huitron, executive director of Voces Unidos for Justice, a Colorado Springs-based nonprofit that works to empower survivors of domestic violence. “What we see, it tends to be Black or Brown women, or those who don’t speak English. So, they’re already vulnerable.”
For undocumented survivors of domestic violence, a partner’s arrest can create additional problems, said Hannah Colter, director of the Denver-based Violence Free Colorado. Now the victim-survivor has become caught up in the criminal justice system and is more likely to have interactions with U.S. Immigration and Customs Enforcement, she noted.
After Ellen was arrested she was brought to a holding center where she was forced to sit up all night to await processing the next morning. Newsline verified the arrest through public court records.
A week later a Front Range district attorney told her such wrongful arrests happen often. The DA apologized to her and said he was dismissing the charges, she said. The couple is separated while divorce proceedings are ongoing.
Law enforcement used to consider domestic violence events as something “private” between couples, thus officers tended not to get involved. That changed after the state’s mandatory arrest statute was adopted in 1994.
“Cops have to take somebody to jail if they think they have probable cause,” said Justie Nicol, a Fort Collins-based criminal defense attorney. “That can include disorderly conduct, yelling, pushing and shoving.”
Often the victim — typically female — doesn’t want her partner arrested.
“Most of the time the woman just wants the thing to stop,” said Tracy Baker, victim services coordinator at the Mesa County Sheriff’s Office. “Often, she’s shocked he’s arrested. A woman can’t say ‘No, I don’t want him arrested.’ Police have to make an arrest if a crime occurs … Prosecution can go forward without victim cooperation. Both parties are dragged into the judicial system.”
Nicol said she often represents victims wrongly charged with domestic violence after attempting to defend themselves.
“Sometimes cops get it wrong,” she said. “Victims at that point also feel like they can’t file for divorce pending the domestic violence case — which can go against them in a divorce.”
Traumatized survivors can’t always communicate clearly what happened in a logical manner, which can make it difficult for law enforcement to determine the initial aggressor, Huitron said. She said police need more training in recognizing fear and a pattern of abuse over time.
When the victim is arrested the perpetrator may be home with the kids, which often leads the defendant to accept a guilty plea so she can get home as soon as possible — which means she now has a record of domestic violence, Huitron said.
Still, many victims’ advocates say the mandatory arrest law is necessary.
“I’m not blaming the police — the way they see it is how the general public sees it,” Huitron said. “We blame the victim for not leaving. I understand how officers are stuck and doing the best they can. The dynamics of abuse and domestic violence are so little understood. It’s a phenomenon we have to deal with.
“Community-based advocates have been trying for decades to get police to use more nuance, and screening at domestic events.”
There are myriad reasons why women remain in abusive relationships — many couples stay together because they can’t afford to separate, as Deborah Sontag explains in her 2002 New York Times article “Fierce Entanglements.”
“A lot of couples can’t afford a hotel room for months at a time,” while the offender is prohibited from contacting the victim, said Nicol, who has worked with both Violence Free Colorado and Project Safeguard, another Denver-based nonprofit that supports domestic violence survivors.
Additionally, offenders are not required to pay rent or a mortgage when barred from staying at the home due to a restraining order, she said. A loss of housing is the primary consequence of mandatory arrest laws, she added.
“Survivors are left with ‘How do I pay for my house and bills?’ That’s the biggest problem we see,” Nicol said.
Colorado’s House Majority Leader Monica Duran is a survivor of domestic violence and understands the difficult choices victims face. When she finally left her abusive husband she and her young son were initially homeless, she said.
“You always think you can fix it. The victim always blames herself,” Duran said.
As a Democratic member of the Colorado House of Representatives Duran has co-sponsored bills that address domestic violence. In 2021, House Bill 21-1255 cleared a pathway for compliance of a law that makes firearms illegal for those under a restraining order.
Duran introduced a bill in January that would create a task force to study victim and survivor awareness and responsiveness training for judicial personnel.
Regarding the 1994 mandatory arrest law, she said the statute is a huge step forward, although she said she plans to look at ways to improve the law moving forward. She said she’ll be listening to advocates, law enforcement, and survivors on how mandatory arrest can be improved.
Colorado’s 2022 Domestic Violence Fatality Review Board annual report found that in 2021, there were 61 domestic violence incidents in Colorado that resulted in 91 deaths — the highest number of domestic violence fatalities since the board was created in 2017.
The report also found that fatality rates are higher in rural areas than in urban locations where more resources exist for domestic violence victims.
In Delta, on Colorado’s Western Slope, the Technical College of the Rockies police academy dedicates 16 hours of instruction to domestic violence topics, said instructor and victim services supervisor Aimee English.
The Police Officers Standards and Training, or POST, program requires a minimum of eight hours be taught on domestic violence.
“My bigger concern is there’s not a lot of options for women for community-based advocacy in our district,” English said. The district includes Delta, Montrose and Ouray counties. “It’s a significant issue in the 7th Judicial District. We need organizations to be more robust in what they offer.”
In Mancos, a town 45 minutes west of Durango, the Southwest Regional Law Enforcement Academy, dedicates eight hours to domestic violence — out of 725 hours overall during the course of the 20-week academy.
“We go beyond that with a lot of scenario-based training — including domestic violence cases to see how law enforcement interacts with the person playing the role of the victim,” said academy director Doug Parker.
Parker said there’s not enough community-based advocacy in La Plata County, and that many women become homeless because of domestic violence. And while there are two safehouses in nearby Cortez — only one allows children, and space is limited, he said.
“We’re a poor part of the state so resources are limited,” including for mental health, which is a factor in domestic violence issues, he said.
This story is from ColoradoNewsline.com.
Support Local Journalism
Support Local Journalism
As a Summit Daily News reader, you make our work possible.
Summit Daily is embarking on a multiyear project to digitize its archives going back to 1989 and make them available to the public in partnership with the Colorado Historic Newspapers Collection. The full project is expected to cost about $165,000. All donations made in 2023 will go directly toward this project.
Every contribution, no matter the size, will make a difference.