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How Mistakes Are Made In Colorado Domestic Violence Arrests – Predominant Aggressor Analysis

By H. Michael Steinberg – Colorado Domestic Violence Criminal Defense Lawyer

How Mistakes Are Made In Colorado Domestic Violence Arrests – Predominant Aggressor Analysis – As my years as a Colorado criminal prosecutor and defense lawyer pass the 30 year mark – it has become clear to me that many of the mistakes made by law enforcement in Colorado Domestic Violence investigations arise out of gender biases – outdated assumptions that fly in the face of research – and the truth of the most basic psychology.

Here is an example.

A boyfriend and girlfriend get into an argument in a car. The argument worsens to the point that the male (who is the driver) pulls over to make certain there is no accident and having pulled over – intends to get out of the car. The female – angry that he is not talking to her – viciously scratches his face and he pushes her to stop the attack. The police respond having spotted the incident and immediately arrest the male for domestic violence. At the point of the arrest – the female tells the police that she was the aggressor and stops the arrest. Had the female said she scratched his face to stop his assault – the arrest would have been made no matter WHAT the male told the police.

Here is another brief example. A woman assaults her husband with a frying pan, causing a serious in jury to his head. He is much larger than his wife. When the police arrive the man tries to press charges – but the police officer dismiss his claim “dude are you serious – she is half your size.”

Historically – the party charged in a domestic violence investigation in Colorado has been based on another outdated notion “first aggressor” analysis. It is absurd to always arrest the person who may have “started” an altercation but who is actually – given the totality of the evidence – the victim of a vicious assault.

Men are almost always arrested in Colorado even when their female “victims” are the “predominant aggressors.” The notion that the “power and control issues” of men are why women are always the victims in Colorado domestic violence cases – ignores research that demonstrates that this is only one of over a dozen other significant reasons for domestic violence.

The Research Reveals The Reason For Gender Profiling In Colorado Domestic Violence Cases

There have been at least 250 scholarly studies which document that men and women are equally likely to initiate severe partner aggression. Furthermore, about 50% of domestic violence perpetrators are female.

If this is true – you would think that those arrested for domestic violence would reflect this fact. The statistics do NOT – More than three-quarters – 77% of those arrested for domestic violence are male. The difference between 50% and 77% reflects the gender bias in the enforcement of domestic violence laws in our state and across the nation.

“Intimate partner violence” is complex yet simplistic “stereotypes” are used by the police because of the need for law enforcement to make an arrest under Colorado’s mandatory arrest laws. This has led to hundreds of ruined lives and a major injustice – not only to the victims of these cases – but to the law enforcement officers who must make a decision based on little or no training.

Understanding Bi-Directional Violence

Bi Directional Violence means both persons are striking each other. The studies that have examined this area found that

(in one study) 50% of violent couples were mutually aggressive and (in another study) 70% of partner aggression was reciprocal in nature. While Colorado police are given a “tool” that is provided in a Colorado law – 18-6-803.6.– the results of the application of this tool to find the truth in these cases often goes very wrong!

18-6-803.6. Duties of peace officers and prosecuting agencies – preservation of evidence.

(1) When a peace officer determines that there is probable cause to believe that a crime or offense involving domestic violence, as defined in section 18-6-800.3 (1), has been committed, the officer shall, without undue delay, arrest the person suspected of its commission pursuant to the provisions in subsection (2) of this section, if applicable, and charge the person with the appropriate crime or offense.

Nothing in this subsection (1) shall be construed to require a peace officer to arrest both parties involved in an alleged act of domestic violence when both claim to have been victims of such domestic violence.

Additionally, nothing in this subsection (1) shall be construed to require a peace officer to arrest either party involved in an alleged act of domestic violence when a peace officer determines there is no probable cause to believe that a crime or offense of domestic violence has been committed.

The arrested person shall be removed from the scene of the arrest and shall be taken to the peace officer’s station for booking, whereupon the arrested person may be held or released in accordance with the adopted bonding schedules for the jurisdiction in which the arrest is made.

(2) If a peace officer receives complaints of domestic violence from two or more opposing persons, the officer shall evaluate each complaint separately to determine if a crime has been committed by one or more persons.

In determining whether a crime has been committed by one or more persons, the officer shall consider the following:

(a) Any prior complaints of domestic violence;

(b) The relative severity of the injuries inflicted on each person;

(c) The likelihood of future injury to each person; and

(d) The possibility that one of the persons acted in self-defense.

Many States Apply Different – But Useful – Criteria To Help Officers Make The Arrest Decision In A Domestic Violence Investigation

Determining who the initial or first aggressor is in the context of domestic violence is not enough. While the initial aggressor cannot claim self defense under Colorado law – the first person who employs hostile force – who first offers violence or offense or who begins a quarrel or dispute by threatening or striking another, should NOT end of the relevant analysis of who to arrest.

Sometimes the initial aggressor does nothing more than “cuff” the head of his or her lover. That should not end the inquiry and even if one of the parties has more bruising than the other – again that person may NOT be the primary or predominant aggressor.

Colorado’s Initial Aggressor Exception To The Self-Defense Rule

Colorado Self Defense Laws

18-1-704 Use Of Physical Force In Defense Of A Person

1. Except as provided in subsections (2) and (3) of this section, a person is justified in using physical force upon another person in order to defend himself or a third person in order to defend himself ….from what he reasonably believes to be the use or imminent use of unlawful physical force by that other person, and he may use a degree of force which he reasonably believes to be necessary for that purpose…..

3. Notwithstanding the provisions of subsection (1) of this section, a person is not justified in using physical force if:

(a.) With intent to cause bodily injury or death to another person, he provokes the use of unlawful physical force by that other person; or

(b.) He is the initial aggressor, except that his use of physical force upon another person under the circumstances is justifiable if he withdraws from the encounter and effectively communicates to the other person his intent to do so, but the latter nevertheless continues or threatens the use of unlawful physical force; or

(c.) The physical force involved is the product of a combat by agreement not specifically authorized by law.

Predominant Aggressor Analysis – Inconsistent Across The Country- State to State

While some states define the “predominant aggressor” as the person who strikes the first blow, while others take the complete opposite approach and define the predominant aggressor as the most significant, rather than the first, aggressor.

Domestic violence investigations have almost uniformly rejected the simplistic approach underlying “first aggressor” analysis. In one of the most comprehensive predominant aggressor analysis that I could locate on the internet – an analysis that would support a much more effective method to determine who should be charged in a domestic violence investigation is as follows:

Criteria That Should Be Applied In A Domestic Violence Investigation

The age, height & weight of the parties.
The parties criminal history.
Whether one or both was on domestic violence probation.
Any corroborative evidence – forensic evidence taken from the scene.
The presence or absence of fear on the part of either or both of the parties.
The existence of any offensive or defensive injuries.
The relative seriousness of any injuries.
Any possible motive to lie on the part of either of the parties.
The relative strength and skill of the parties.
The use of alcohol or drugs on the part of either of the parties.
Which party called 911 (if either did).
The relative demeanor of parties.
The existing of prior or concurrent protective orders
The detail of statement
Self defense, defense of others or property – Whether the amount of force was appropriate and reasonable.
Prior complaints or history of domestic violence between the parties.
The proper use of the self defense during the altercation.
The existence of witness statements.
Any power and control dynamics of the couple.
Whether there is a history of police responses to the home.

More About Research and Development of “Predominant Aggressor” Analysis

The enactment of mandatory arrest laws in Colorado domestic violence cases has led to unfair and uneven arrests in cases where arrests would either not have been made at all – or a different person would have been arrested. The research proves that in more than half of all domestic violence cases – mutual partner aggression has occurred and the person arrested was NOT the predominant aggressor.

Domestic violence laws that use “primary or initial aggressor” analysis are less effective than the more thorough “dominant or predominant aggressor” analysis. The ingrained attitudes of law enforcement as regards gender bias ignores the research of which has found “no consistent link between traditional gender attitudes and partner assault”

Summary and Conclusion – How Mistakes Are Made In Colorado Domestic Violence Arrests – Predominant Aggressor Analysis

To correctly identify the truly culpable party, law enforcement must look more closely at the evidence and NOT rely so heavily on the statements made by the first identified victim – usually the woman. Emotional statements and traditional gender notions should play a less significant role and not always be accepted at face value. Alleged DV victims often exaggerate the amount of violence involved and police are clearly predisposed to arrest the male party – usually based on the relative size and apparent strength of the male.

The research does not support the traditional male – female questionable and false assumptions that lead to the premature identification of the “victim” in domestic violence cases.

Notably – in most DV cases there are no visible injuries. In some cases both parties have injuries and who struck the first blow may be of little forensic significance. Furthermore accusations of Domestic Violence in Colorado are likely to be based on emotional violations such as jealously, financial threats, or reasons unrelated to what may seem “obvious” to the police at the time of the investigation.

In cases of “mutual aggression,” neither of the parties may be the “predominant aggressor” as neither may exert more power and control in the relationship than the other.

Research demonstrates that assuming men are always the predominant aggressor is often an incorrect assumption. Vague and gender -biased belief systems or legal criteria that maximize the number of male arrests and minimize the number of female arrests has led to great injustice and ruined lives.

Power and control motivates a women’s behavior as much as, and in some cases, more than, men’s actions.

When it comes to men’s and women’s use of controlling behaviors, the research has established that there are no differences in their overall use and therefore female perpetrators of domestic violence are not held accountable for their actions.

How Mistakes Are Made In Colorado Domestic Violence Arrests – Predominant Aggressor Analysis

Never stop fighting – never stop believing in yourself and your right to due process of law.

ABOUT THE AUTHOR: H. Michael Steinberg -Email The Author at [email protected] – A Denver Colorado Criminal Defense Lawyer – or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – 720-220-2277. Attorney H. Michael Steinberg is passionate about criminal defense. His extensive knowledge and experience of Colorado Criminal Law gives him the edge you need to properly handle your case.

You must make a responsible choice for a Colorado Criminal Defense Lawyer – we encourage you to look at our firm. Over the last 40 plus years – H. Michael has mastered nearly every area of criminal law, procedure and trial and courtroom practice and he is passionate about getting you the best result in your case. He has written and continues to write extensively on Colorado criminal law and he hopes this article – – helps you in some small way.

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D As my years as a Colorado criminal prosecutor and defense lawyer pass the 30 year mark - it has become clear to me that many of the mistakes made by law enforcement in Colorado Domestic Violence investigations arise out of outdate assumptions that fly in the face of research and the truth of basic psychology.

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H. Michael Steinberg