Domestic violence (DV) is a crime of violence, typically an assault, battery, stalking, or criminal harassment, perpetrated by someone against a family or household member. Some states have specific statutes that are separate from the general assault statutes. For example, in Massachusetts, the crime is defined within the statutes dealing with “Abuse Prevention.” In other states, such as California, the prosecutor charges the defendant with general assault or battery, and if the state can prove that the victim was one of the persons considered a “family or household member,” the punishment will be enhanced.
For more information on domestic violence generally, see Domestic Violence and Abuse. You can also read about each state’s approach to this crime, and the penalties, by accessing the state-specific articles on that page.
Defenses to a Charge of Domestic Violence
People who are charged with domestic violence sometimes defend themselves on one or two ways: They attempt to show that the prosecution has not proved its case, in that it has not convinced the judge or jury beyond a reasonable doubt of every element, or part, of the crime; or they offer a defense that, if believed, absolves them of their actions. These approaches are explained next.
Attacking the Prosecutor’s Case
In every criminal charge, the prosecutor must prove beyond a reasonable doubt that the defendant did every act, and had the needed intent, that makes up the crime. These are called the “elements” of the crime. For domestic violence, in general the following elements must be proved (states may vary this list; check your state’s scheme, as suggested above).
Was the victim a member of the class that the domestic violence statute intended to protect? The prosecutor must prove that the victim fits within the protective scheme. For example, New Jersey protects a current or former spouse or household member who is 18 or older or is an emancipated minor; a person with whom the perpetrator has a child or is expecting a child, regardless of the victim’s age; or a person with whom the perpetrator has had a dating relationship. A defendant in New Jersey might argue, for example, that the victim and the defendant were merely casual friends, not in a dating relationship. If successful, this approach may ward off the increased penalties associated with a DV conviction, but it will not defeat a conviction for the underlying crime, if the prosecutor can prove the elements of the offense (it’s still illegal to assault a friend).
Did the assault, stalking, harassment, and so on actually occur? Defendants may attempt to show that the victim has fabricated the claimed act of violence. This defense is not likely to succeed if there is physical evidence corroborating the victim’s injuries.
Did the defendant commit the act? Sometimes, defendants readily agree that the victim suffered the claimed injuries, but that it was at the hands of someone else. If the case comes down to a battle between the victim’s word against the defendant’s, the prosecution may lose unless it can provide additional evidence that points to the defendant.
Has the prosecution proved every other element of the underlying crime? In states that enhance punishments for enumerated crimes when they fit within the DV protective scheme, the prosecution must always prove every element of the crime. For example, if the underlying crime is stalking, there must be evidence of persistent, unwanted and intrusive following; if the crime is false imprisonment, there must be proof that the victim was not free to leave. Unless each element is proved beyond a reasonable doubt, the defendant will be entitled to an acquittal.
Offering an Affirmative Defense
A defendant in a DV case may also assert that his or her actions were done in self defense, and that the real instigator of the violence is the alleged victim. This situation is commonly encountered by first responders, and in some states, police officers are required to make a judgment as to who was the principal aggressor and arrest that person, even when physical acts were committed by both. But at trial, a defendant would be free to open the issue and attempt to show that whatever physical assault he or she is charged with committing was done in justifiable response to the alleged victim’s primary aggression.
See a Lawyer
If you’ve been charged with a crime of domestic violence (or with a crime that carries additional punishments when the victim was within the class of protected persons in the state’s DV statute), you should contact an experienced defense attorney immediately. An attorney will be able to evaluate the strength of the evidence against you, and evaluate any defenses you believe you may have, be they disproving the prosecution’s case or advancing a claim of self-defense. Never speak with prosecutors or investigators unless you have consulted first with your own counsel.