Most of our criminal justice system is oriented toward responding to incidents. Police generally don’t arrest a person for stealing a car until after the car has been stolen. Prosecutors generally don’t press auto robbery charges against a person because they suspect the person is going to steal a car one day.
But the law of domestic violence is different. In many respects, it is preventative in nature.
Lawmakers, law enforcement officers and prosecutors recognize that domestic violence doesn’t arise just in isolated incidents. It often exists in a continuing pattern that gets worse unless someone breaks the pattern. With that in mind, many states have developed ways to try to keep alleged abusers away from the people they might harm.
Like most states, Oregon attempts to do this through a system of restraining orders and protective orders. However, Oregon goes even further than most states by also requiring mandatory arrest.
Probable cause
The mandatory arrest law requires a police officer to arrest a person they believe has assaulted a family member or intimate partner, or that they have threatened them with serious physical injury.
The standard for this mandatory arrest is “probable cause,” meaning that the officer believes it is more likely than not that the assault or serious threat has occurred. The officer does not need to have witnessed the incident themselves. In most states, arresting a suspect under these circumstances is largely up to the discretion of the police officer. They may feel there is not enough evidence to justify arrest. In Oregon, an arrest is mandatory.
Note that a person arrested under this law will not necessarily end up facing domestic violence charges. The District Attorney’s Office must decide whether to prosecute the case.
Defending against domestic violence charges
As we have seen, Oregon’s domestic violence laws have strong provisions to protect a victim or potential victim from harm. However, it’s important to remember that people who are accused of domestic violence have the right to a defense. And, with the legal system so firmly aimed against them, it’s crucial that they seek out experienced professional help in crafting that defense.