The law does not effectively solve every possible scenario in cases of Domestic violence. Therefore, the law gives the flexibility to decide on their courses of action depending on the situation on the ground. The situations encountered by the police are different, and the judgment that the police officers make, is also different. Whether or not a victim of domestic violence gets arrested by the police depends on the assessment carried out by the police. Police discretion is sometimes beneficial to the society since the police may be best understanding the situation on the ground. However, some police take advantage of this power and perform unscrupulous activities to both victims and offenders. Therefore, it is necessary to understand the pros and cons of police discretion, in order to evaluate its importance in the Criminal Law. This paper critically analyses the pr0os and cons of police discretion. It uses well developed arguments as and explanations to explain the thesis statement.
Pros of Police Discretion for Victims of Domestic Violence
Police discretion ensures that the police prevent the victims of Domestic violence from any abuse in the future. This is a fundamental aspect since police desertion is aimed at ensuring peace prevails in family’s. Bearing in Mind that domestic violence has enormous effects to the children, wife’s and husbands who encounter it, the discretion of the police, which is aimed at preventing the occurrence of such abuse in the future, is functionally necessary. Police discretion allows the police to make an arrest in cases of domestic violence, even when they do not have a witness, when they believe beyond any reasonable doubt that the crime occurred. It allows the Police to use the evidence of the crime scene alone to arrest the offender in order to rescue the victims of the domestic violence cases.
When an officer is not sure of the abuser’s offence, the officer does not make an arrest. This has a basis on the discretion that the police have when it comes to domestic violence. It is advantageous in the society since it prevents the prosecution of a person who is innocent. Arresting an innocent person, or a person whom the police are still raising questions on the crime committed, may be harmful to society. This is because it is immoral to prosecute an innocent individual in the society we are living. Also, the law by its sheer existence should protect the interest of the innocent and facilitate for the changing of the offenders at the domestic level in this case.
Police discretion allows the police in work in ways that best fits their personal safety. In this case, the police may decide whether or not to advance violently to an armed domestic abuser. This provides for an important element in the Criminal Justice system. The element is job satisfaction and autonomy. This is because the police are employees of the criminal Justice system and their interests such as job satisfaction should be protected to ensure their effective and productive performance. This comes with the freedom to make amicable decisions at the crime scene. These decisions in cases of Domestic violence have to pertain the safety of the police officers and the situations in the Crime scene at large.
Police discretion also allows the police to use force in cases they believe the offender of the domestic violence case may be too malicious to their personal safety. For example, when the police come to save a person from abuse of family laws, the police may have to face an armed husband or wife, posing a threat to both the victims and the law enforcer. Bearing in mind that the police should perform his duties to the best interest of the law, in this case discretion allows the police to use force to confront the offender. The foremost concern of the police should be preserving life. Therefore, discretion allows the police to do anything possible at the crime scene to prevent the life of the victim, the offender and the police himself.
Also, Police discretion serves as a vital tool to prevent domestic violence. This is because it creates some unpredictability in the cases that have a domestic setting. Therefore, potential offenders do not find any loophole in the law. There is always a space left for the police to make a decision at the crime scene depending on the nature of crime and all the factors surround the crime. This phenomenon discourages criminal activity since the criminals are not sure of the decision that the police would take, once they confront the crime scene. Bearing in mind that the police discretion has a basis on the circumstances surrounding the case, it enhances them to reach at the best decisions since they can weigh the circumstances and correct empirical data in the domestic setting. This ensures that the police perform best in heir line of duty to counter domestic violence in different cases and still remain unpredictable.
The police discretion is also advantageous to the country in economic terms. This is because it is not economic if the police arrest everyone in the crime scene of domestic violence. The discretion gives the police the power to arrest only the person they believe have broken the law recklessly. Therefore, the officers are free to follow only the person the find to be most responsible for the criminal act committed at a crime scene. Besides being economical, it allows the police to arrest only people who are guilty of an offence committed at home.
Discretion prevents law enforcement officer from stupidly enforcing the law to the letter. In some circumstances of domestic violence, the law should not be exceedingly strict especially between a husband and wife at the family level. The arrests that the police make at the domestic level are wise and prudent, and that is why discretion is provided for in the law. Also, Discretion enables the Police officers to act to the best interest of the victim and children at the family level. The nature of cases that the police face in this setting also calls for discretion. For example, the police face the dilemma of making an arrest or not, when the victim of the crime is willing to forgive the offender. In cases of assault, the wife after getting assaulted by the husband may be willing to forgive the husband and terminate the due process of the criminal Justice system. In such a scenario, the police officer is free to make a decision that favors the interests of the victim and the offender. Therefore, the circumstances surrounding the cases of domestic violence require that police discretion is exercised often, to ensure that fairness and Justice prevails.
Police discretion also promotes conflict resolution in cases of domestic abuse. The decision of the police affects both parties of a conflict with a domestic setting. Under the circumstances presented in the event of a domestic disturbance, the police have to act in a manner that is just and fair. Therefore, the police officers productively use their discretion to bring content and resolution between the conflicting parties. The decision of the police ends up affecting the parties in their situation of domestic violence. The parties who do not cooperate to the provisions of the police discretion may be arrested by the police on the basis of discretion. Therefore, discretion of the police is an essential aspect in the cases of Domestic abuse. It even allows the police to take recommend guidance and counseling to the victim or the offender.
Police discretion allows the Criminal Justice system to pay some substantial attention to the needs of women and children in the society today. The police may decide not to make an arrest according to the circumstances on the grounds, pertain to the life and safety of women and children. For example, if they are dealing with a woman who is pregnant and she is likely to give birth soon, the police may consider not making an arrest. Also, women with young children who face assault and abuse from their husband, have their interests protected by the law via police discretion.
Disadvantages of Police Discretion
In cases of Domestic violence, Police discretion is sometimes misused by the police. For example, where the crime offenders are the police’ best friends or old classmates. The police sometimes decline arrest with the excuse of discretion. Therefore, a loophole gets created for the police to behave unscrupulously in their performance. The Police become in effective, and whenever they are questioned, they claim to have arrived at their decisions on the basis of discretion.
Police discretion, by its nature and existence is also a terrifically disadvantageous sight to the crime victims who are at conflict with the police. Some times, personal differences may ensue between the police and the victims of Domestic abuse. Since police discretion does not have to be based on any written provision, the police find themselves acting contrary to the interests of the law. Instead of the police using their discretion to provide for the resolution between the crime victims and offenders of domestic abuse, they perform dismally in their quest to ensure that Justice prevails.
Also, the way in which the police operate provides that their discretion gets largely used in the cases of domestic violence. In their working, the police usually come across female victims that are decidedly un cooperative. This makes it a hard nut to crack, to explain the true side of the story. Therefore, the police are faced by the challenge of arriving at the wrong decision since it is hard to know the true story with adamant crime victims. Also, some crime victims of domestic violence are not sure if they would want to have their spouses to be arrested and face a prosecution in a court of law. These victims pose a formidable challenge to the police since the police has to appeal to their sense of reasoning and perhaps recommend psychological counseling. The discretion of the police has to be broad, covering all the circumstances surrounding the crime, with a key intent to protect the rights of the victim. Also, when the police arrive at discretionary decision of inaction to a domestic issue raising concern, they bring more problems to both the crime victim and the offender. In some cases, the offenders feel free to violate the law again if their actions did not get reprimanded by the police at first instance. Therefore, it is necessary for the police to exercise their discretion at the family level, appealing to factors such as the interests of the victim, and the effects of the police’ decision to the relationship of both the victim and the offender at question.
The problem of Indecision is another challenge that comes with discretion of the Police. This problem arises since the police has to listen to both sides of the story, in a domestic abuse setting and come with a solution that will make justice and fairness prevail. Sometimes the law provide is over simplified by the officer’s instructions of what not to do. This means that they discretion of the police hugely covers what the police should not do Instead of what the police should do in the cases of domestic violence and abuse. Therefore, the police officers suffer the problem of decision since their problem cannot be solved by one law wholesomely. This calls for the police officers to be cautious when it comes to discretion. The decisions they arrive at must not be a breach of another law, governing family matters in the Domestic setting. Therefore, the police have to be cautious to ensure that the decisions arrived at to solve domestic violence are inspired by the quest to end domestic violence.
The nature of the decisions arrived by the police to counter Domestic violence vary depending on the instances. This is a disadvantage in the sense that decisions arrived at by the police in the setting of domestic violence, cannot be used again in the future since these problems are fundamentally different and are engrossed by so many circumstances. This exposes the decisions arrived at by the police to undue criticisms. Decisions are relative, and what may appear to be rational and sensible to one police officer may not be rational to another police officer. Therefore, the Police may conduct an arrest in cases where another police officer, when faced by a similar case could not arrest the offender.
With police discretion, solving instances of Domestic violence becomes a hard task. This is because, the police are human beings and they have their own personal weaknesses. Sometimes, the decisions arrived at these cases may be motivated by societal vices and weaknesses like fear. If the police could be fearing that the victim may turn against them in the future, the decisions may be biased. Therefore, the discretion of the police does not always have a strong motivating intention. Sometimes, this caused by blackmail and terrorism of police officers by offenders of the domestic violence cases.
The discretion of the police in the setting of Domestic violence has a serious disadvantage to our society today because it motivates corruption and Impunity. The culture of corruption among police officers and impunity will never end, with the discretion of the police being provided for in the law. Discretion leads to a perception of favoritism in the domestic violence setting. For example, the police may be lenient when the offender gives a bribe. This instigates the corruption in our society, since discretion allows for the fate of the offender to be made by only one police officer at the crime scene. Impunity also intensifies in the society since the crime victims openly commit violence or violate the family law and get away with is as long as they are in sterling terms with the police officers.
From the foregoing, it is unequivocally clear that police discretion is a controversial issue in the society today. Discretion, whose main aim is to counter domestic violence, has been misused by the police to cause impunity and poor family relationships. The criminal law should develop provisions and measures to assess the performance of the police and the decisions they arrive at in their discretion, during their exercise of normal duties. Also, victims and offenders of domestic violence should understand that this vice can only be countered when they are ready to cooperate with the police in order to end domestic violence at home. The police should also consider gender equality during the making of these decisions at their discretion. This would develop a society win which all the people are equal before the law regardless of their financial status or class.