Maine’s Adoption of Predominant Aggressor Doctrine in DV Arrests Will Ensnare Innocent Men

LD 1039, which was recently signed by Governor Baldacci, requires law enforcement agencies to adopt a “process to evaluate and determine who is the predominant physical aggressor in a domestic violence situation.” While this sounds reasonable, in reality the predominant aggressor doctrine functions as a method of directing police officers to arrest men, not women, when responding to domestic disturbance calls.

The stakes here are high. Because Maine also has a mandatory arrest law in domestic violence cases, instituting the predominant aggressor doctrine will lead to the arrests of many innocent men. Since Maine family courts must consider evidence of domestic violence in determining child custody, an officer’s decision on who to arrest can often determine who will get custody of the couple’s children after the couple divorces or separates.

Under the predominant aggressor doctrine, when police officers respond to a domestic disturbance call, they are instructed not to focus on who attacked whom and who inflicted the injuries, but instead consider different factors which will almost always weigh against men. These factors include: comparable size; comparable strength; the person allegedly least likely to be afraid; who has access to or control of family resources (i.e., who makes more money); and others. Given these factors, it is very difficult for officers to arrest female offenders.

That women are frequently the aggressors in domestic combat cannot be reasonably denied. The National Institute of Mental Health funded and oversaw two of the largest studies of domestic violence ever conducted, both of which found equal rates of abuse between husbands and wives. Professor Martin S. Fiebert of California State University, Long Beach maintains an online bibliography summarizing nearly 200 academic studies that conclude that women are as physically aggressive in their intimate relationships as men.

Women often employ the element of surprise and weapons to compensate for men’s greater strength. An analysis of 552 domestic violence studies published in the Psychological Bulletin found that 38 percent of the physical injuries in heterosexual domestic assaults are suffered by men.

Crime journalist Patricia Pearson, author of When She Was Bad: Violent Women & the Myth of Innocence, explains:

“The dynamic of domestic violence is not analogous to two differently weighted boxers in a ring. There are relational strategies and psychological issues at work in an intimate relationship that negate the fact of physical strength. At the heart of the matter lies human will. Which partner–by dint of temperament, personality, life history–has the will to harm the other ”

DV policies that ignore or minimize female aggression often mean men are arrested for their wives’ or girlfriends’ violence. The highly–publicized case of former major league baseball player Scott Erickson has come to symbolize the problems with current policies.

Erickson called the police during an altercation with his girlfriend in July of 2002. According to the Associated Press, the police concluded that Erickson’s girlfriend Lisa Ortiz: initiated the fight by hurling objects; decided to come back twice after Erickson carried her out of the apartment; repeatedly kicked the apartment door; caused Erickson two minor injuries, one of them to his pitching arm; and herself suffered no injuries. Nonetheless, the police arrested Erickson. Afterwards Ortiz publicly stated that Erickson, who did not pursue her either time after carrying her out, “has never been physically abusive toward me.”

John Hamel, LCSW, author of Gender–Inclusive Treatment of Intimate Partner Abuse: A Comprehensive Approach, explains that under the predominant aggressor doctrine, “Unless the officer can conduct a thorough psychosocial history on the scene, he/she is likely to make the arrest based on the potential for the man to cause greater harm…Arrests should be based on severity of assaults…without gender bias.”

LD 1039, sponsored by Representative Deborah L. Simpson (D–Auburn) and supported by the Maine Coalition to End Domestic Violence, does have some good provisions. It mandates that the state create processes to ensure that victims can safely retrieve personal property, and that they receive notification of the defendant’s release from jail. However, the system’s reluctance to view women as anything other than victims inhibits efforts to effectively curb domestic violence. LD 1039 will aggravate this situation, further stacking the system against men.