Despite concerns about the constitutionality of Utah's domestic-violence law, if you beat your spouse in Utah County you are probably heading to jail.
While a U.S. district judge determines whether the law is constitutional, Provo, Orem and Utah County prosecutors and law-enforcement officers say they will continue to abide by the law."We are doing what the law requires us to do," Provo Police Capt. Duane Fraser said.
According to the law, any time a police officer has probable cause to believe that domestic violence has occurred or will occur, the officer must either arrest or cite the suspect. The suspect is then given a "no-contact" notice by the officer, which requires the suspect be separated from the victim for 24 hours or until his or her court appearance, whichever is longer, with a 96-hour maximum.
However, since it was passed by the 1990 Legislature, the state domestic-violence law has been under scrutiny. In May, Utah Attorney General Paul Van Dam responded to an inquiry from the Statewide Association of Prosecutors and said the law is probably unconstitutional because the "no-contact" provision denies a person due process. Van Dam's statement resulted in many cities and counties ceasing to enforce the law.
In October, the Legislature asked the Utah Supreme Court to order cities and counties to enforce the law, which the court did in November. Soon after the Supreme Court's ruling West Valley City filed a suit in U.S. District Court asking for a quick decision on the law's constitutionality. The suit contends the city is open to liability if it enforces an unconstitutional law. Judge David Sam has yet to rule on the matter.
Utah County sheriff's officials recently had the same concern and asked the county attorney's office and county commissioners for direction. Sheriff's officials are concerned about a lawsuit being filed for denial of due process by someone arrested under the law. Commissioners said that because no court ruling has been made, sheriff's officers are obligated to continue enforcing the law.
"It seems to me that if you have a law on the books you're better off to follow it until it's changed or taken off," said Deputy County Attorney Jeril Wilson.
Wilson said the county may face a bigger risk by not enforcing the law. If deputy sheriffs respond to a domestic-violence call and do not follow the procedures outlined in the law, the county could face a much bigger lawsuit if the victim is then injured or killed. Last year, 12 Utah women died from injuries suffered as a result of domestic violence.
"If that happened, our liability concern would be much greater," Wilson said.
Utah County law enforcement agencies respond to several domestic-violence calls every day. Some result in an arrest and some don't. But police officers agree that domestic-violence situations are delicate. That's why most officers undergo training in how to handle such calls. Identifying and evaluating a domestic-violence situation is one of the most difficult decisions an officer makes.
"A lot of times it is hard to determine which person is the instigator," said Gerald Nielsen, an Orem police spokesman. "That's the hardest thing for a responding officer, knowing who ought to be left alone and who ought to be cited."
A provision in the law states that officers are not criminally or civilly liable for enforcing or not enforcing the law, as long as the "officer acted in good faith and without malice."
Statutory duties of police officers in domestic-violence situations:
- Protect victim by remaining at scene, removing suspect or following with extra patrol.
- Arrest or cite suspect and issue no-contact notice if probable cause exists.
- Arrest suspect if violation of previous protection order has occurred.
- Find and preserve evidence and get written statement from victim.
- Arrange transportation of victim to medical facility or shelter, if necessary.
- Explain rights to victim.
- Prepare incident report.
- Forward report to prosecutor.