Falsely Accused of Domestic Violence

By , Attorney · Santa Clara University School of Law

Domestic violence (DV) is a crime of violence against a family member, household member, or someone the perpetrator has (or has had) a dating relationship with. DV allegations often include accusations of assault, battery, stalking, and/or criminal harassment.

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.

What to Do After Being Falsely Accused of DV

Though uncommon, people sometimes make false allegations of domestic violence. If this has happened to you, taking quick action will give you the best chance of fighting the charges.

Get an Attorney Immediately

As soon as you learn of the DV allegations—by the alleged victim, a police officer, an arrest, or otherwise—you should contact an attorney. Time is of the essence, because an attorney can protect your rights before it's too late, and advise you on how to proceed once they know the facts of your case.

Also, an attorney can immediately begin communicating on your behalf with anyone trying to question you about the accusation—such as a police officer, family services agency, the media, or the alleged victim or their family. This protection is crucial because anything you say to someone else can usually be used in court. So, if the case went to trial, anyone you spoke to about the allegations (even a friend) could get on the stand and repeat what you said—and can be forced to do so with a subpoena.

Most people think no harm can come from discussing false accusations if they have nothing to hide. But sometimes, innocent statements can be used against you. Suppose that you told someone that you last saw the alleged victim on a particular day, but remember later (and tell someone else) that it was a different day. Even if it's just a mistake, the prosecutor might use the inconsistency to suggest you lied and that nothing you say is believable.

That's why it's important not to discuss the allegations with anyone but your lawyer unless your lawyer tells you otherwise. On that note, once you've retained a lawyer, it's important to do whatever they tell you to.

Things Your Attorney Might Tell You to Do

Depending on the facts of your situation, your lawyer might have you take certain steps in your defense. For example, an attorney might tell you to preserve any evidence that could relate to the accusations, such as texts, emails, and so on. Or they might tell you to make a list of possible witnesses that includes anyone who might have information about the alleged victim and the accusations.

Things Your Attorney Might Tell You Not to Do

Just as important as doing what your attorney tells you to do is following their instructions on what not to do. Your attorney might tell you not to:

  • have any contact with the alleged victim, especially if there's a restraining order
  • discuss the allegations with anyone, especially not the victim or their family or friends
  • reference anything about the case or the alleged victim on social media
  • talk to law enforcement or other investigators (such as a child protection agency) without your lawyer present, or
  • give any evidence to investigators without consulting with your lawyer first—even if you believe the evidence will show you're being wrongly accused.

Defenses to Domestic Violence Charges

People who are charged with domestic violence often defend themselves in a couple of ways: They attempt to show that the prosecution has not proved its case beyond a reasonable doubt, or they offer a defense that, if believed, absolves them of their actions (and sometimes they do both).

Attacking the Prosecutor's Case

With any criminal charge, the prosecutor must prove beyond a reasonable doubt that the defendant did the illegal act, and had a certain intent when doing it. These are called the "elements" of the crime. For domestic violence, generally the following elements must be proved (states may vary this list; check your state's laws, as suggested above).

Was the Victim a Member of the Class of People the DV Statute is Intended to Protect?

The prosecutor must prove that the alleged victim has the kind of relationship with the defendant that's described in the statute. For example, many states' domestic violence statutes say that they apply when the victim is a current or former spouse or household member, the parent of the defendant's child, or someone the defendant has dated.

A defendant might argue, for example, that the victim and the defendant were merely casual friends, not in a dating relationship. If successful, this approach could avoid the increased penalties for a DV conviction, but it won't defeat a conviction for the underlying crime (such as assault), if the prosecutor can prove the elements of that offense (it's still illegal to assault a friend).

Did the Assault, Stalking, Harassment, or Other Alleged Conduct Actually Occur?

Defendants can attempt to show that the victim has fabricated the claimed act of violence. This defense doesn't usually succeed if there's physical evidence corroborating the victim's claimed injuries. However, depending on the nature of the injuries, a forensic expert might be able to determine if they were self-inflicted. Though highly unusual, it's not unheard of that an alleged victim inflicts their own injuries to bolster their accusations. (See, for example, Chrisman v. City of Los Angeles, 155 Cal.App.4th 29, 31-32 (2007).)

Did the Defendant Commit the Act?

Sometimes, defendants readily agree that the victim was assaulted and suffered the 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 might lose unless it can provide additional evidence that points to the defendant.

Did the Defendant Intend to Commit the Act?

Defendants sometimes argue that although they committed the act that caused the injuries, they didn't mean to do it. For example, in a case where the victim alleges the defendant slammed her hand in a door, a defendant who didn't know the victim's hand was in the door jamb would not have intended the alleged act.

Has the Prosecution Proved Every Other Element of the Underlying Crime?

In states that enhance punishments for crimes when they're committed on someone the defendant had a domestic or dating relationship with, the prosecution must always prove every element of the crime itself.

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.

Arguing an Affirmative Defense Like Self-Defense

Depending on the facts of the case, a defendant charged with DV might present an affirmative defense.

For example, they might argue that their actions were done in self-defense, and that the real instigator of the violence was the alleged victim. First responders (like police officers) who arrive on a domestic violence call often encounter reports of self-defense and don't really know who did what before they arrived.

But in some states, police officers have to make a judgment call about who was the principal aggressor and arrest that person—even when both parties committed assaults. But at trial, a defendant would be free to try and prove that whatever physical assault they're charged with committing was a justifiable response to the alleged victim's assaultive behavior.

See a Lawyer

If you've been charged with a crime of domestic violence or any other crime, 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 think you might have. And remember, never speak with prosecutors or investigators unless you've consulted first with your own lawyer.

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