Diane Wetendorf & Dottie L. Davis ©2003 Diane Wetendorf. All Rights Reserved.

Police administrators and advocates have different perspectives, priorities, and goals. Certain policy elements are needed to protect the department from liability yet these same elements make victims more vulnerable. Our goal is to generate thoughtful discussion among administrators and advocates on the impact of officer-involved domestic violence policy.

Police-involved domestic violence is not a new problem, but an old one that law enforcement has been reluctant to acknowledge. Because victims of this crime rarely come forward to report the abuse, police departments have been able to minimize the extent of the problem. But when a domestic violence situation involving an officer leads to a lethal attack as it did in April 2003 when a Chief of Police shot his wife and then killed himself, police administrators all over the country witnessed the impact on the community and the potential financial disaster of a multi-million dollar lawsuit. It is predictable that administrators will see the need to adopt policy specific to officer-involved domestic violence to prevent such incidents and to protect their departments from liability if an incident should occur within their agency.

Many administrators look to existing policies in other agencies for guidance in crafting their own policies. Some departments, especially those with government funding that requires them to work collaboratively with victim advocates, may also look to domestic violence advocates for input in developing response to victims. Though this collaboration may be beneficial in cases involving the general population, it is likely to present conflicts when the batterer is a member of law enforcement.

From the administrator's perspective, certain aspects of a policy are necessary to protect the department from liability. From the advocate's perspective, these very elements leave a victim more vulnerable than she was before policy was implemented. Advocates want police agencies to hold abusive officers accountable — but not at the expense of the victim. Police administrators also want to protect victims — but not at the expense of exposing the department to liability or of depriving officers of their right to due process.

Ultimately, it may not be possible to craft a policy that will satisfy both police administrators and victim advocates. But this does not negate the value of the discussion if police and advocates further their understanding of each other's roles and perspectives. Both must clearly identify the appropriate boundaries and limitations of collaboration when the batterer is a member of law enforcement.

Pre-hire screening

Administrators and advocates agree that the ideal is for a police agency to avoid hiring a potentially abusive officer through pre-hire screening. A background investigation can be conducted face-to-face in the candidate's home. When the candidate is in an intimate relationship, the significant other — and family as appropriate — should be requested to participate in the interview process. These interviews should occur outside the presence of the candidate. A candidate's insistence on being present during others' interviews should raise suspicion. Interviewers must be aware that if previous spouses, family members, and intimate partners experienced abuse at the candidate's hands, they may not be willing to disclose that information. Family, friends, and neighbors should be sensitively questioned about the candidate's current and prior relationships.

While psychological tests alone are unlikely to distinguish batterers or sexual offenders from the general male population, psychological screening that focuses on identifying abusive tendencies can provide guidance when it is conducted by a competent psychologist. No screening has value, however, if the department disregards the psychologist's findings and recommendation to fulfill any political or individual promise made by the department.

Officer training

Training should be provided collaboratively by police instructors and victim advocates. The material should be specific to the dynamics of officer-involved domestic violence, and the ability of an abusive officer to misuse his professional training and to manipulate responding officers and investigators. All officers, members of internal affairs, department chaplains, all command staff, and the Chief should be required to attend the training.

Police instructors and advocates may disagree on what causes domestic violence. Most victim advocates believe that gender inequality and the resulting imbalance of power in an intimate relationship is the cause of male violence against women. Police officers may become defensive and argumentative with advocates who take a feminist perspective if the officers hold traditional beliefs that grant men authority over women, though they may not personally condone physical violence to establish or maintain that authority. This can cause considerable conflict because advocates know that confronting domestic violence requires us to confront sexist beliefs and attitudes. Police agencies that are willing to work collaboratively with victim advocates must be willing to make it clear to officers that the department will not tolerate sexism (as it will not tolerate racism or homophobia).

This message also needs to be communicated to officers' intimate partners and family members. Though some departments conduct orientation sessions for officers' families, many women say that the message they get is that if there are problems at home, the department is there to help the officer. They receive the impression that an intimate partner's role is to cooperate with the department in protecting the officer's career. If domestic violence is even mentioned in these sessions, its cause is attributed to the stress of the job, thus in effect excusing an officer's violent behavior at home.

Is zero-tolerance the answer?

To communicate the seriousness of domestic violence, agencies may be seduced into adopting a zero-tolerance policy. Though the meaning of the term 'zero-tolerance' seems obvious on the surface, on closer examination it is confusing and contradictory. Violence exists on a continuum — does zero tolerance include every behavior on the continuum? For example, will an intimidating gesture be weighted the same as a punch in the face, or a gun held to the victim's head? Or does zero-tolerance apply only to a complaint sustained by an internal investigation or a criminal conviction? And, if there is little chance of either of these outcomes, is there really a zero-tolerance policy?

Victims, friends, and family members who learn that the department has a zero-tolerance policy will probably think long and hard about the potential consequences of reporting the officer's violent behavior even when the department urges them to do so. Potential complainants have a right to information about the complaint process and the ensuing investigation. They should be informed that when a complaint is made, investigators will interview the victim, family members, neighbors, and friends.

Anyone who agrees to speak to an investigator may be placing themselves and the victim at great risk of retaliation by the abuser and/or other officers. Before the interview takes place, all parties have a right to know that their statements are not confidential, and that the accused officer will have access to their statements. Any witness for the victim may fear risking the victim's safety by admitting knowledge of the abuse, while witnesses for the abuser typically state that they cannot imagine the officer having committed the alleged crime.

Officers' responsibility to report

A policy may require officers to inform the agency when they have knowledge that another officer is committing domestic violence, and may require cooperation with the resulting investigation. Officers who fail to notify the department or engage in actions intended to interfere with an investigation can be investigated, sanctioned, or criminally charged. In theory, this is good policy but it denies the existence of the officers' code of silence. In 22 years on the police force, Capt. Davis cannot recall one instance in which an officer reported another officer for domestic violence.

Despite the unlikelihood of an officer reporting a fellow officer, the policy may prevent a victim from talking to the only people she believes may have any influence over the abuser — other officers. She knows that there is a code of silence, and she also knows that an officer could be officially disciplined for upholding it. The requirement to report is particularly problematic for a female officer victim who wants to protect her friends on the job from having to make a difficult choice between honoring her confidence and violating the departmental rules. This situation is exacerbated when the female officer is in an intimate relationship with another officer from the same agency or even a neighboring jurisdiction.

Policy can require an officer to self-report being the perpetrator or victim of domestic violence. Perpetrators are unlikely to self-report unless it is unavoidable. The requirement to self-report is a significant problem for the officer-victim who under policy must report her own victimization. And is it appropriate to order a female officer-victim to place herself at risk by cooperating in the investigation, especially if the abuser is also an officer?

Protective orders

A policy can require an officer who is subject to a protective order to report it to the department. This notification requirement serves as a liability shield for the department. However, it may prevent a victim from pursuing a protective order because she cannot do it without involving the agency.

Policy might also require an officer who is either the petitioner or the respondent to a protective order to report it to the department. Will a female officer-victim avoid obtaining a protective order because of the requirement to report? Agencies need to consider the ramifications of this policy for female officer-victims who are most likely to be the petitioners. On the other hand, this requirement could be instrumental in alerting supervisors to a male officer-abuser who has obtained a protective order as a pre-emptive strike against his victim.

Federal law allows an exemption for on-duty officers to retain their weapons while under protective orders unless otherwise stipulated in the order. This exposes the department to liability, however, because nothing precludes an officer from killing his significant other with his service weapon while on duty. Agencies may attempt to circumvent this liability by requiring the officer to surrender all firearms. The victim is still vulnerable because of the abuser's expertise in defensive tactics and ownership of other weapons which can inflict serious bodily injury, if not death.

Administrative orders of protection

Police departments can give an administrative order to the accused officer, commanding him to refrain from certain activities. This may be the most attractive option to the victim who does not want to place the abuser under the scrutiny of the courts. Agencies, however, may fear that they would still be held liable if an incident occurs while the administrative order is in effect. The issuance of the order illustrates that the agency acknowledges that the situation is potentially volatile.

Internal investigations

Though we like to think that internal investigations are not biased, the investigation of an officer can be heavily influenced by the accused officer's reputation and his relationship with the investigating officer. Levels of integrity vary by agency and by individual. Investigators who take civilian complaints may not be accustomed to listening to and believing what the citizen says. They generally cite the adage that "There are two sides to every story and the truth is somewhere in the middle." This perspective easily lends itself to making a case that the victim shares responsibility for the abuse and that it was mutual combat. Investigators who are anxious to give the officer the benefit of the doubt in a "he said/she said" situation typically determine that an allegation is unfounded or not supported by evidence sufficient to sustain the complaint.

A department may also conduct an internal investigation that runs concurrently with a criminal investigation. Internal investigators base their findings on a preponderance of the evidence, meaning that they conclude whether an incident did or did not occur based on the facts they have gathered. In criminal proceedings, the standard of proof is considerably higher: guilt must be proven beyond a reasonable doubt. The officer may be disciplined based on the findings of the administrative investigation regardless of the outcome of the criminal case.

Before the administrative interview, the officer must be given what is known as a Garrity warning. This is a direct order by the department to truthfully answer questions related to his performance of official duties or his fitness for office. Failure to truthfully answer questions will result in disciplinary action up to and including termination. Because of the Fifth Amendment protection against incriminating oneself in criminal court, information gleaned from an internal interview may not be used against him in a criminal case (apart from perjury or obstruction of justice). This protection of the officer's civil rights allows the accused officer to admit to a domestic battery during an internal investigation while being granted immunity regarding a criminal proceeding. Subsequently, the officer can resign from the department or the agency can terminate him based on his admission of guilt, yet this same officer may avoid facing criminal charges and is free to seek employment in another law enforcement agency.

It would be useful for agencies to keep statistics on domestic violence complaints and findings, and to make these available to the public. If statistics show that a department typically finds in favor of its officers, victims could use this information when deciding whether to make a complaint and/or to cooperate with an internal investigation.

Victim vulnerability

The investigation period is an extremely dangerous time for the victim. Some departments may place an officer on administrative leave or even remove the officer's badge and weapons while he is under investigation. While this may shield the department from liability, the abuser is likely to use this time and freedom to stalk and harass the victim. He will pressure her to recant, reconcile, drop the charges, or drop her protective order so that he can regain his police powers.

Policymakers must consider how a victim will be kept informed during the process and how she will be notified — before the officer is notified — of any action the department takes against the officer. The higher his rank, the longer he has been employed, and the stronger his identification with the job, the more danger the victim is in.

An incident involving a high-ranking officer or an incident in which a victim suffers severe injuries might end up in criminal court. Some agencies work with the prosecutor to pursue the charges even if the victim recants or refuses to cooperate. A policy to pursue charges and subpoena the victim can endanger her and rob her of her right to do what she believes is in her best interest. In court, the abuser's attorney will do everything possible to discredit the witness (the victim), including portraying her as a bad wife, a neglectful mother, a promiscuous woman, or a mentally unstable person who is lying about the abuse to ruin her partner's career.

Officers are rarely convicted because the judge and jury believe the officer's word over the word of the victim. Judges and juries are even more reluctant to convict an officer since a 1996 amendment to the Gun Law banned a convicted officer from possessing a weapon. Officers had previously enjoyed an exemption from this law.

Batterer intervention counseling

Police officer batterers are unlikely to voluntarily attend counseling because of the police culture's stigma against seeking help for personal problems. And many unions prohibit the department from sending an officer to a program for domestic batterers based on an unsubstantiated allegation.

If commanding officers and/or EAP administrators do not understand the power and control dynamics of domestic violence, they may make inappropriate referrals. If they view domestic violence as a marital problem or place equal responsibility on both parties for their differences, they are likely to suggest marriage or couple counseling. They may refer the offending officer to a police psychologist or chaplain who, due to lack of knowledge about domestic violence, may place the victim in even greater danger by validating the abuser's justifications for his violence.

Many departments employ victim advocates and/or social workers to work with victims and perpetrators of domestic violence. When the abuser is a police officer, a victim is unlikely to trust that her abuser's co-worker will advocate on her behalf. Agencies should also consider the appearance of impropriety if the victim is being advised by a member of the department. And most victims report that they do not want anyone on the department to have information concerning their safety plan. Police agencies must have available referrals to independent advocacy services for victims and they must also respect the victim's right to confidential advocacy from outside of the department.

Conclusion

We have addressed just some of the issues that law enforcement agencies and advocates must consider when crafting policy. Despite the best intentions, there are many elements of policy that make a victim's situation worse. There are also many elements of victim safety that impact a police agency's exposure to liability.

Some citizens, advocates, and police administrators believe this is a clear-cut issue and that an abusive officer should be fired, period. Others believe it is a complex issue that demands case-by-case consideration. Though aware of the liability for negligent retention, police administrators are also aware that the agency has invested a significant amount of time and money in each officer. This investment, in addition to loyalty to their employees, may motivate the agency to do everything possible to preserve an officer's career. Although advocates do not want police agencies to sweep domestic incidents under the rug, they know that it is ultimately the victim who will pay the highest price if the abuser loses his career.