Your abusive partner was just taken away in handcuffs. Whew. You finally breathe a sigh of relief. But then you start wondering … what happens now? Where will the abuser be taken? Will he or she stay in police custody? When will he or she be released?
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50 States, 51 Legal Systems
Each state (and the District of Columbia) has its own legal procedures and terminology, so it’s difficult to say exactly what an abuser’s experience will be like after an arrest. Police and court discretion also can play a role. But domestic violence arrests largely follow a general sequence of events.
A police officer (or two) will transport the abuser to a police station or jail for booking. His or her photograph—commonly referred to as a mugshot—will be taken, along with fingerprints. Some states collect DNA samples for every domestic violence arrest while others collect DNA only in certain types of cases, such as strangulation and sexual assault.
Interview and Phone Call(s)
The abuser will be placed in a holding cell while the arresting officer and jail staff complete the administrative tasks associated with filing criminal charges. The officer or a detective may conduct an interview with the abuser during this time. However, if he or she refuses to answer questions or asks for an attorney, no interview will take place.
Speaking of asking for an attorney, suspects are usually permitted to use the phone after booking to contact counsel or family, make childcare arrangements, etc. It’s a movie myth that arrestees are entitled to one phone call though; each state has its own guidelines or it may be left to the discretion of the arresting officer or jail staff. California, for instance, allows arrestees three completed phone calls within three hours of arrest. Tennessee allows suspects to make one phone call prior to booking. Kansas on the other hand only grants suspects the right to written communication, so all phone calls are considered to be a courtesy.
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The abuser would most likely be told not to contact the survivor, but it could (and does) happen. It would be unlikely for this to result in a separate charge though unless the calls were repeated—considered harassment—or threatening and the survivor reported it. Though the no-contact order wouldn’t take effect until the offender sees the judge so, unfortunately, it’s harder to prove this.
Depending on the severity of the crime—misdemeanor or felony—and the jurisdiction, the abuser may be transported to a different facility. For instance, some cities transfer suspects to a county jail for felony charging or if the city doesn’t have its own jail.
Initial Appearance in Court
The abuser will typically be held in jail until he or she sees a judge or magistrate, which, according to precedent set in the County of Riverside v. McLaughlin (1991) case, must happen as soon as is reasonably feasible or no later than 48 hours after arrest. Many state statutes shorten this timeframe to a maximum of 24 hours.
During the initial appearance before a judge (some states call this an arraignment), the court will likely:
- Inform the defendant of the charges being brought against him or her.
- Set bail or remand defendant to custody, meaning he or she will stay in jail without the option of bonding out.
- Establish release conditions, including stay-away and no-contact orders, weapons bans, and drug and alcohol abstinence.
- Determine the need for a public defender (felonies only).
- Schedule next court appearance.
You may or may not be permitted to attend this initial appearance. If you wish to, call the court after the arrest to find out when the initial appearance is likely to happen. Many jurisdictions hold initial appearances only at certain times of day.
Release or Remand
If the judge denies bail (usually when the charges are very serious or the defendant is a flight risk), the abuser will be taken back to jail until his or her next court appearance. If bail is set, the abuser can pay cash to be released. If he or she doesn’t have the money, someone can post bail on his or her behalf, whether a friend, relative or bail bondsman. In situations where no one is willing to post bail on the offender’s behalf, he or she will stay in jail until the next court appearance, which could be months out.
There’s nothing preventing a victim from posting bail for the defendant, and it does happen in domestic violence cases, particularly when the involved have children together and childcare or disruption of work are concerns. You might wonder if it would negatively affect the case if you decide to bail out your abuser. Allison Mahoney, a public interest lawyer and former New York City prosecutor, says it shouldn’t.
“As a prosecutor, it’s not ideal, but it shouldn’t affect the underlying case, because the case is focused on the crime that occurred,” she says. “At the very most, it might chip away the survivor’s credibility if they have to testify. But if I were the prosecutor, I would refute that with evidence about the psychological impact of being in an abusive relationship, and it’s not uncommon for survivors to not want to file charges, or to want to try to maintain the relationship in some way.”
Some judges will release a suspect on their own recognizance, also known as granting an “OR release.” This is basically a no-cost bail where suspects sign a written promise that they will appear in court.
In most states, victims must be notified when the abuser bonds out of jail, but that doesn’t always happen. In some states, bail conditions prohibit contact with the survivor before a judge is seen.
Just 10 states require victims to be proactively notified of the abuser’s release conditions, but you can request them in any case. But remember, just because the defendant’s release conditions say he or she should stay away from you, doesn’t mean that’s what’s going to happen. Call the police if the abuser violates any release conditions, or harasses or threatens you. That’s a separate crime from whatever put him or her in jail in the first place and may lead to a second arrest.
What if your abuser is part of the community meant to keep you safe? Read “When Your Abuser is a Police Officer” for more info.
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