Although “Domestic Violence” can attach to crimes that do not necessarily contain allegations of “Assault” (e.g. Disorderly Conduct, Malicious Mischief, Interfering with the Reporting of Domestic Violence, Harassment, Cyberstalking, Theft, Witness Intimidation / Tampering to name a few) – most cases I see in the realm of Domestic Violence Defense usually include a charge of Assault.
Assault can be defined as an intentional touching or striking or cutting or shooting of another person, with unlawful force that is harmful or offensive regardless of whether any physical injury is done to the person. A touching or striking or cutting or shooting is offensive if the touching or striking or cutting or shooting would offend an ordinary person who is not unduly sensitive.
An assault is also an act with unlawful force, done with intent to inflict bodily injury upon another, tending but failing to accomplish it and accompanied with the apparent present ability to inflict the bodily injury if not prevented. It is not necessary that bodily injury be inflicted.
An assault is also an act, with unlawful force, done with the intent to create in another apprehension and fear of bodily injury, and which in fact creates in another a reasonable apprehension and imminent fear of bodily injury even though the actor did not actually intend to inflict bodily injury.
You will notice in the various definitions of “Assault” above the language used in defining assault is “with unlawful force”. What does this mean? It means under certain circumstances, you have the lawful right to defend yourself or others as the case may be with the use of “lawful force”.
Self Defense
In the 10+ years I have been defending Domestic Violence cases a recurrent pattern / theme I see in many of these cases involve “mutual combat”. Cases where both parties strike each other. The police usually make an arrest based on whom they think is the initial aggressor sometimes referred to as the primary aggressor. In other words, a person is charged with Assault even though they were merely defending themselves after being attacked first. A common complaint I here is ‘the police were called and I was told they had to arrest someone so they arrested me’. Apparently, some folks in law enforcement think paying a visit to the home of the alleged disturbance mandates arrest. Not true. Probable cause triggers arrest not the mere reporting and investigation of a domestic disturbance. In any event, I have successfully defended these types of cases before resulting in Not Guilty verdicts at trial and dismissal of cases pre-trial because of insufficient evidence to convict.
Self defense is the use of / attempt to use / offer to use force upon or toward the person of another is lawful when used / attempted / offered by a person who reasonably believes that he or she is about to be injured, and when the force is not more than is necessary.
The person using or offering to use the force may employ such force and means as a reasonably prudent person would use under the same or similar conditions as they appeared to the person, taking into consideration all of the facts and circumstances known to the person at the time of [and prior to] the incident.
The government has the burden of proving beyond a reasonable doubt that the force used / attempted / offered to be used by the defendant was not lawful.
If the above looks and sounds familiar to you, please give me call. I have extensive familiarity with challenging cases based on claims of self-defense.
Defense of Others
Defense of others in the context of Domestic Violence can be seen in cases where a violent spouse or violent partner or violent family member usually with a history of assaultive behavior is assaulting another member of the family necessitating lawful intervention from person aiding the attacked party.
The use of / attempt to use / offer to use force upon or toward the person of another is lawful when used / attempted / offered by someone lawfully aiding a person who he or she reasonably believes is about to be injured in preventing or attempting to prevent an offense against the person, and when the force is not more than is necessary.
Akin to self-defense, the government has the burden of proving beyond a reasonable doubt that the force used / attempted / offered to be used by the defendant was not lawful.
General Denial
Many, many times the case has nothing to do with self-defense or the defense of others or even an assault. The accused stands trial because the case against him or her is totally bogus, false, or made up by the alleged victim. When this occurs, we call this a general denial defense because the accused generally denies the allegations he or she faces. This type of case boils down to a swearing contest between the defendant and his or her accuser. Again after 10+ years of defending DV cases in the State of Washington, the goal is to uncover why the complaining witness (alleged victim) would lie. Not surprisingly — divorce, infidelity, jealousy, child custody / child support, and acrimony are the usual suspects in these types of cases. However, my analysis does not end there. In fact, exposing the witness’ biases and prejudices is really just the tip of the iceberg. The credibility of the alleged victim is also in play here. It’s important for the attorney not to sleep on the paper trail when exposing the potential deception of the accuser. The paper trial can be vastly instrumental in challenging the government’s case. What do I mean by “paper trial”? It is not uncommon for the alleged victim to give multiple statements regarding the incident. His or her statement can show up in police reports, 911 call logs, a Smith Affidavit, statements to friends and family, emails / text messages / Facebook, collateral civil matters (e.g. DV Orders for Protection and Dissolution proceedings). Does the police report jive with the Smith Affidavit? Does the pre-trial interview of the alleged victim jive with the police reports and the Smith Affidavit? What about the 911 tape? Does the 911 call add up with the police reports and Smith Affidavit? Is the complaining witness seeking a Domestic Violence Protection Order? Does the DV Protection Order contain facts new or different from the police reports, the 911call log or Smith Affidavit? What about the declarations and the request for temporary orders filed in the divorce? We have not even got into eyewitness accounts of the alleged incident? Or the fact the alleged victim claims he or she was punched or kicked or scratched or slapped and there is absolutely no physical evidence corroborating the allegation.
Bottom line: let me put my decade of experience defending DV cases to work for you.
Diminished Capacity
Evidence of mental illness or disorder may be taken into consideration in determining whether the defendant had the capacity to form the requisite mental state to commit the alleged crime. Briefly, “diminished capacity” stands for the proposition the accused should be permitted to present a defense to the charge based on mental illness or disorder. Put another way, should we hold a person responsible for his or her actions even though he or she lacks the requisite intent to commit the offense? Should a person be held responsible for their alleged conduct even though they suffer from schizophrenia? Post-traumatic Stress Disorder? Battered Spouse Syndrome? These are questions for the trier of fact – judge or jury – to decide. That said, before you make any decisions regarding your case including hiring a lawyer, you should ask a lawyer about their preparedness to present a “diminished capacity” defense.
In general, diminished capacity may be raised as a defense when either specific intent or knowledge is an element of the crime charged. If specific intent or knowledge is an element, evidence of diminished capacity can then be considered in determining whether the defendant had the capacity to form the requisite mental state. State v. Thomas, 123 Wn.App. 771, 779 (2004).
One of the more common Diminished Capacity Defenses, I see lately is “Post-traumatic Stress Disorder” especially in veterans returning to civilian life after serving our country. I am thankful for the service to our county these brave soldiers and sailors provide us, which is why I have studied Post-traumatic Stress Disorder as a diminished capacity defense extensively in my practice.
I am Here to Defend You
The above is not meant to be an exhaustive list of defenses that may be available to you depending on the facts and circumstances of your case. That being said, a record of conviction for Assault / Domestic Violence can have long terms consequences on your life. If you are the sole provider for your family or a breadwinner your family is just as likely to be affected by a conviction. Before you hire a lawyer make sure to engage a lawyer in a meaningful discussion about the lawyer’s commitment to criminal defense work. Practical work experience. Enthusiasm for the task at hand. Knowledge of the law. Knowledge of court procedure. And of utmost importance whether the attorney has the capacity to defend you. I am here to defend you.
