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Colorado Domestic Violence Defense Lawyer – Understanding The Problem Of Identifying The Primary Aggressor In Domestic Violence Cases

Introduction – In Colorado domestic violence investigations – the police are oftentimes called upon to make the most difficult decision – they must answer this question – Who was the primary aggressor? The decision is most often made on a gender bias or “timing” basis ( who called he polices first) This web page addresses the issues created by this issue.

Colorado Domestic Violence Cases – The Identification of the Primary Aggressor”

The Primary Aggressor

Police officers and prosecutors should receive the same “primary aggressor” training. The identification of the primary aggressor must be done consistently. Training needs to be on-going and comprehensive.

Issues in this area include the following components:

domestic violence dynamics,

mutual combat,

self defense,

strangulation,

reasons why women use violence,

distinguishing between offensive and defensive injuries,

the sophisticated batterer,

the law, and handling these cases at court.

The law identifying the primary aggressor:

The primary aggressor is defined as the person determined to be the most significant aggressor who might NOT BE the first aggressor.

In identifying the primary aggressor, an officer is instructed to consider the intent of the law to protect victims of domestic violence.

Many training programs now include additional factors to consider:

• Age, height & weight of the parties

• Criminal history

• Domestic violence probation

• Corroboration

• Presence of fear

• Offensive/defensive injuries

• Seriousness of injuries

• Motive to lie

• Strength and skill

• Use of alcohol or drugs

• 911 reporting party

• Timing of citizen’s arrest

• Demeanor of parties

• Existing protective orders

• Detail of statement

• Self defense, defense of others/property

The officer should ask such questions such as:

• Who is fearful of whom?

• Who in the relationship poses the most danger to the other?

• Who is seeking to stop the violence?

• Who is seeking to avoid punishment?

• Who is at most risk of future harm?

• Who has motive to lie or retaliate?

• Whose story makes the most sense?

• Do the injuries and evidence corroborate the statement?

• Is there evidence of consciousness of guilt?

• Is there a history of domestic violence, as the perpetrator or the victim?

Another good question to ask both parties at the scene is “What will your partner tell me about what you did?” Then the officer can ask the female with the male’s version to find out what she believes. Does the female confirm or deny the male’s version?

Then the officer can ask the same set of questions of the other party. “What was the argument about?” This question more than any other may help identify any motive to lie and/or expose any possible defenses.

Why is one version is more believable than the other? What are the supportable reasons for the mandatory arrest.

Experts

Assistance from experts such as veteran police detectives and forensic nurses can assist in distinguishing between offensive and defensive injuries, as well as the reasonable use of violence and other factors.

The consequences of arresting the wrong individual, and the messages being sent to offenders, victims and children, are a great cause for concern in this area.

• Female offenders may be rewarded for manipulating the system to gain revenge on the male in their lives.

• Children may learn to distrust the police. In cases where both parents are arrested, children associate the presence of police with the breakup of the family.

• Police officer frustration is growing.

• Real Batterers are identified and smaller – ridiculous cases ending in mandatory arrest do not help the family unit

What is mutual combat?

In domestic violence situations it is common for both parties to assert that the other party was actively engaged in the violence.

This pattern of claims is sometimes grouped under the concept of “mutual combat”. While convenient and widely used, the term “mutual combat” is not helpful in the difficult task of identifying the primary aggressor. Mutual combat is a misused and misunderstood term.

Police officers tend to classify a domestic violence case as “mutual combat” when they can’t or don’t have the time to sort out a messy case at the scene, thinking it is the prosecutor’s job to sort it out in court. Prosecutors tend to use it when both parties have injuries or both parties allege self defense at the scene. Prosecutors think if the police officers can’t figure it out, nor will the judge or the jury. Judges and juries use the term “mutual combat” to justify their not guilty verdicts.

Loser leaves and pays attorney’s fees.

Clearly, it is important to have an understanding what is and what is not mutual combat. The use of self-defense against an assault is not “mutual combat” male on female or vice versa.

Under Colorado law it is lawful for a person who is being assaulted to defend him/herself from attack if, as a reasonable person, s/he has grounds for believing and does believe that bodily injury is about to be inflicted upon him/her. In doing so, that person may use all force and means, which s/he believes to be reasonably necessary and which would appear to a reasonable person, in the same or similar circumstances, to be necessary to prevent the injury which appears to be imminent”.

Women who use violence

It’s important to acknowledge that women use violence. In Women Who Abuse in Intimate Relationships (Hamlett, 1998), violent women were grouped into three categories:

• One group includes women who use violence in self-defense to escape or protect themselves from their partner’s violence. Saunders (1986) found that this was the most frequently reported motivation for women’s use of violence.

• In a second group are women who have a long history of victimization at the hands of previous partners as well as during childhood. These women are described as taking a stance in life that “no one is ever going to hurt me that way again” and their violence is interpreted as an effort to decrease their own chances of victimization.

• Violent women in a third group are identified as primary physical aggressors who use their greater physical power to control partners.

Women who use weapons

When a woman uses a weapon to defend herself, such as a frying pan, a knife or any other household object, the use of weapon is sometimes construed as excessive and self defense goes out the window. However as the law states, a “…person may use all force and means which she believes to be reasonable necessary … to prevent the injury which appears to be imminent.” If the male is bigger and stronger, the defending female is entitled to use a weapon to make things fair or “equalize the power differential”.

Victims as Defendants

Domestic violence laws apply equally to men and women.

When an individual uses violence, which is not in self-defense, it is a crime. Police officers and prosecutors must evaluate each case on the facts of the instant offense. Both the police officer and the prosecutor are guided by established standards, which cannot be ignored.

With the increase of females being arrested, it is inevitable that more females will be prosecuted and that some of these female defendants will also have a history of being battered victims.

When this happens, prosecutors may consider may prior abuse as a factor in “mitigation” at sentencing but place too much weight on the prior alleged abuse.

Conclusion

Identification of the primary aggressor is not an easy task. Today more than ever police officers and prosecutors are finding it a challenge to identify the true offender and hold that person accountable. The solution is to “continue to learn” and take advantage of the most recent courses on how to identify the primary aggressor.

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Through education and awareness and teamwork, we can hold the true offender accountable, make the victim safer and end domestic violence. Prevention, not intervention, is the key to changing the world.

Police should be trained to better identify persons who have used family violence and persons who need to be protected from family violence, and to distinguish one from the other. Guidance should also be included in police codes of practice and guidelines.