"Your honor, this is the first time my client has been arrested for domestic violence". This lawyer is doing his job by trying to get his client the best possible deal in court. For 'first time offenders', this generally means a dismissal, especially if there is no clear evidence brought forth by the prosecutor that a crime has been committed.
When the prosecutor has a strong case, first time offenders in many states might not get off the hook entirely as their case might be "adjourned in contemplation of dismissal", or receive "pre-trial probation to be dismissed" This generally means that the offender has not been found guilty of a crime, and unless he is arrested for a new offense, there will be no legal consequences. Less fortunate offenders are placed on probation with the condition to attend an abuser intervention program.
So-called first time offenders are like a breath of fresh air in the criminal justice system. In comparison to 'real criminals', or 'frequent fliers', they are viewed as light weights who don't really pose a threat to society, or to their victim. And their own depictions of their violence would seem to bear this out. Often, they claim that there violence was 'a misunderstanding', or the unfortunate result of having 'too much to drink'. One such man, James, claimed it was both. He provided the following account in court:
"I went to bat something out of her (his wife's) hand and just as she turned her head, my hand grazed her on the cheek. We'd both had a few drinks so neither of us was thinking very clearly". It's (was) totally not intended and this is the first time anything like this has happened."
Upon advice of his attorney, James admitted to 'sufficient facts' and his case was "continued without a finding."
But was this, in fact, James' first offense? As it turns out, no. We need to start thinking of men like James in the same way that we have come to think of first time drunk drivers. An overview study of drunk driving arrests determined that those arrested for the first time for drunk driving had, on average, driven drunk between 200-2,000 times, depending on the survey.
There have not been similar surveys for men who are first time arrestees for domestic violence but there is no reason to suppose that their rate of prior incidents is much less than for the arrested drunk driver. We know that only one in four victims of abuse call the police. This means that three-quarters of abusers don't even merit being called 'first time offenders" by the police, since they are never arrested.
And becoming a first time offender in the eyes of the court is even less likely when we look at how few abusers end up facing criminal charges. According to one study that examined 517 cases in which victims said they were assaulted by a partner, 387 of the perpetrators were not reported to the police, 456 were not arrested, and 501 (97% of the total) did not face criminal charges.
I came to know James during the course of his attending the abuser intervention program to which he was court mandated. During the beginning stages, James frequently expressed bitterness over his having been arrested for such a 'trivial thing'. He told us he should not be taking up space in a program for 'men who beat their wives'. Over time, with education that violence is any act that can place a partner in fear, James began to 'remember' prior incidents of violence toward his wife, Mary. These included his threatening to kill her, punching holes in walls, slamming doors, breaking some of her belongings, and driving recklessly with her in the car. Later on, after James had received education and about psychological forms of abuse, he conceded that he had frequently called Mary degrading names, insulted her intelligence, criticized her, cheated on her, and ignored her feelings. But these new admissions were not just the result of James' edification about domestic abuse. At the same time, he was also receiving critical perspective and feedback from group members and leaders. One turning point, according to James, was when another member said to him, "I used to think I was unlucky for being arrested too. Now, I know I was lucky for getting away with it for so long."
My work with abusers has shown that the term 'first time offender' is even more of a misnomer when one asks abusers about their prior relationships. As part of the accountability process, my program requires abusers to engage in an exercise called a relationship history.
In this exercise, men are asked a series of questions about their behavior in prior intimate relationships. Judging from their answers, it appears that the man who has not abused prior partners is the exception to the rule. In my recent review of 76 relationship histories, 63 of the men (83%) admitted to some type of physical or verbal abuse of at least one prior partner. In essence, nearly two-thirds of these men are serial abusers of women.
Because we employ a broader definition of abusive behavior, the actual rates of serial abuse found here are higher those reported in research studies that utilize more narrow legal definitions. But even by legal definitions, many abusers are serial offenders. One study that examined the criminal histories of over 2,000 convicted abusers in Massachusetts found that 43% of these men had abused at least two victims, as determined by prior restraining orders that had been taken out against them. Sixteen percent of these men had more than three or more victims.
It certainly makes sense to create enhanced sanctions for serial abusers since various studies have found them to pose an increased risk for fatal assaults on women. However, enhanced sanctions for serial offenders sometimes mean that the hidden serial abuser, the 'first time offender' is more likely to get a free pass. Compounding the court's tendency to give first time offenders a pass is that many come across as likable, even more so than their victims. As the result of this disparity in the charm factor, many victims are not believed when they allege abuse.
We need to look at more than criminal records and likeable demeanors to tell us who the repeat and the serial abusers are. If we dig deeper, we find there is often a trail of destruction in the histories of supposed first time offenders. Left unchecked and untreated, most of these men will continue to abuse women and to adversely affect their children along the way. As James reflects, "I thought I was unlucky (for his arrest) but now I realize I'd done much worse to Mary and probably should have been arrested for that. I guess there's ironic justice in that".