How Do Self-Defense Scenarios Generally Play Out And Who Gets Arrested?
A person would be able to have multiple people arrested, and they could have multiple restraining orders and then the court would have to figure out who needs to be permanently restrained. The biggest fight would usually over the third prom and we would usually know whether there was a legitimate relationship covered under the act.
The second question would be whether there was a predicate act committed. This would be quite simple because one party could claim that the other party hit them or that they said something to them that was not nice. Those would count as harassment and assault, which are both covered. It would still be covered even if the person claimed the other person just pushed them. The third act of the case would be the biggest deal and that would be to decide whether the matter was so serious that it deserved a permanent restraint or what the courts like to call domestic contretemps.
The most important thing the courts would look at would be the total relationship; how long it had been going on, how detailed the history was, and whether there was a cycle of domestic violence being perpetuated. It would be a problem for people who were not represented because they make their TRO and just say what happened recently but then try and bring in a lot of other history to substantiate the seriousness and then the nice attorney in the expensive suit would stand up, and raise an objection to the judge that this information was not in their request for a TRO.
The judge would agree that the attorney was right, and they would have to amend their TRO to talk about these other things that were not in there. A great deal of the ability to advocate would be based on the necessity to get the right verbiage and write all the incidents in the party’s history into that restraining order.
What Are Some Other Defenses For Domestic Violence Situations?
It’s about more than just defenses, because it would be about whether or not the other party could make their case, whether they could prove the relationship existed to give jurisdiction to the court and it would be a matter of presenting a predicate act. There are several criminal statutes whose violation in even the most technical sense would qualify. Cases are most often questionable on the third element, and that would be when the matter was so serious that the applicant deserved permanent protection, because the fear was that great.
On one occasion, I had a gentleman who had a great relationship with a woman. He had been in a prior relationship with her but they were no longer together, although he was still giving her money to support her children. She let him park his car at her property and they got into an argument one day over a little thing and he punched out her window while she was in the car.
He was very apologetic afterwards and said it would not happen again. The judge did not agree because he felt that what the person had done was so outside the bounds of acceptable behavior that he decided to grant the order. Most of the time, there would have to be a more significant history. Anybody could make a mistake once and depending on the facts, it would probably not qualify if the person lost their temper and yelled at their wife once.
What Is The Cycle Of Domestic Violence?
The judges look for something called the “Cycle of domestic violence,” which can be thought of as a clock. At midnight, everything would be good, but things progressively keep getting worse. The abuser would start with exerting control because they would not get their way, so they would get angry, and then at six pm, there would be an explosion and there would be a dramatic attempt to control the other person, either by physical, mental, or emotional means.
It could mean cutting that person off from their friends or a combination of things to exert control and dominion over that person, but then they would realize they took it so far that the person would either leave them or contact the police. They would know what the limits are and when they passed those, they would try to make up for it and then as it came closer towards midnight again, they would be trying to make amends and get back in good graces so that when midnight happened, everything would be back to normal again, and then things would start going down the hole again.
This is what the cycle of domestic violence is like, and this is what judges are trained to look for. People do not even realize what they are saying when they give their testimony, and they do not realize whether what they are saying is supporting or negating the presence of the cycle of domestic violence which is why a trained attorney would know how to present a set of facts in a way that the judge would be able to see the presence of the cycle of domestic violence and recognize whether it was going on, or if the person would be able to show that the cycle was not taking place.
They do not tell people who come to court that they would be looking to see if there was a cycle of domestic violence, or tell them what that is. They would just ask the person to tell them what happened so they could see if it fit into that description, but they would not tell them what the rules of the game were.
Who Gets Arrested In Cases Where No One Has Been Assaulted Physically, And It Was Just Yelling?
Depending on what was going on and how many times the police had been called out there, one party could be arrested for verbal statements based on harassment. Quite frankly, the police do not like taking the chance that they had been called to a house and everyone said everything would be okay, but then later they got the call saying that somebody lost their temper again so they stabbed, killed or put their domestic partner in the hospital. They would go for a restraining order first and ask questions later, separate everybody and let the judge figure it out.
I often see the police tell the person who called and reported the matter that they should really push to seek a restraining order just to keep the two parties away from each other for a few days because they felt it was a really good idea. They would really try and advocate for a restraining order to be issued because they would want to cover themselves, and they would not want to be the ones who left the scene.
The best example would be of a fireman who was called to put out what looked like a small fire, but when they had mostly put it out, they left and then got a call back a few hours later saying there was a spark they had not put out which burned down the whole block, which is what they would not have wanted to have happened. My impression is that police would rather not leave, because if somebody called them to come then things would have escalated to a point where it was serious enough for them to not leave without issuing a restraining order.
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