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What Is a Primary Aggressor in a Domestic Violence Case?

Posted by Dmitry Gorin | May 20, 2024

Domestic violence cases are fraught with complexities that challenge law enforcement, victims, and the legal system. In California, stringent protocols are in place for law enforcement officers to protect victims from further violence even before formal charges are filed.

For example, police are required to make an arrest on a domestic violence call if there are indications that violence did, indeed, occur.

What Is a Primary Aggressor in a Domestic Violence Case?
The primary aggressor in a domestic violence case is the one who was the most significant instigator.

Sometimes, it is relatively easy for police to differentiate the perpetrator from the victim, but what if both show signs of aggression or injury? In these cases, police must determine who the "primary aggressor" is based on available evidence.

Domestic Violence (DV) is a broad term used to classify criminal offenses that can be charged and punished in several different ways. These include the circumstances of the case, the nature of the relationship, the location of the arrest, and the accused's criminal history. Serious domestic violence incidents are charged as felonies.

The most common domestic violence charge is California Penal Code 273.5 PC corporal injury to a spouse. This "wobbler" (misdemeanor or felony) offense involves inflicting injury on a spouse, cohabitant, fellow parent, or person the accused has dated.

Often, the police arrest a person for felony PC 273.5, and the district attorney reduces the charge to a misdemeanor PC 243(e)(1) if the injuries do not rise to felony conduct.

Another commonly charged domestic violence offense is Penal Code 243(e)(1) PC domestic battery. This misdemeanor criminal charge involves committing a battery on a spouse, cohabitant, fellow parent, or person the accused dated.

Among the more serious domestic violence charges is Penal Code 245 PC assault with a deadly weapon, which is not limited to domestic violence cases. This criminal charge is considered a serious and violent felony and is a strike within the meaning of California's Three Strikes law. Since PC 245 is a strike, it can lead to stiffer or enhanced sentencing in the present or future cases.

What is the Definition of Primary Aggressor?

The primary aggressor in a domestic violence case is the individual deemed to have been the most significant instigator or perpetrator of violence during an incident.

Under California law, when police officers respond to a domestic violence call and find that both parties have injuries, they are required to identify and arrest the primary aggressor.

This determination goes beyond simply identifying who started the altercation. Instead, it involves a comprehensive assessment intended to determine who poses the greater threat based on several factors, including:

  • History of domestic violence: Past instances of violence are taken into consideration, particularly those documented by police or judicial actions.
  • Severity of injuries: The extent and seriousness of the physical injuries may indicate who was more aggressive.
  • Likelihood of future harm: Officers assess which party is more likely to initiate further violence.
  • Witness statements: Accounts from other individuals can be crucial in painting a clearer picture of the dynamic between the parties.
  • Self-defense: Determining whether one party acted in self-defense is essential, mainly when retaliatory violence occurs.

What is the Challenge of Accurate Identification?

While arresting the primary aggressor aims to prevent further violence and ensure the safety of the victim, the system is still quite flawed.

Identifying the primary aggressor is a complex task requiring rapid judgment under stressful conditions, and mistakes are common. Several factors contribute to the potential misidentification of the primary aggressor:

  • Dual arrests: Sometimes, law enforcement may find it challenging to determine the primary aggressor clearly, leading to both parties being arrested.
  • Misinterpretation of injuries: Injuries may not accurately reflect the dynamics of the confrontation. A more severely injured party may actually be the primary aggressor if they initiated the violence and the other party responded in self-defense.
  • Bias and stereotypes: Preconceived notions about gender or physical appearance can influence an officer's judgment about who is more likely to be the aggressor.

What is the Role of a California Criminal Defense Attorney?

When the system incorrectly identifies the primary aggressor, that person's life may be unfairly disrupted in many ways-from the arrest itself to being hit with a protective order prohibiting them from returning home and possibly separating them from their children.

In these cases, hiring an experienced California criminal defense attorney can go a long way toward minimizing the damage. A skilled attorney can help in the following ways.

Challenging the Arrest and Charges 

The attorney's first order of business is to scrutinize the circumstances surrounding the arrest, looking for discrepancies, biases, or procedural errors that may have led to the wrongful identification of their client as the primary aggressor. This includes reviewing police reports, witness statements, and any available physical evidence.

Challenging the Evidence

An attorney can scrutinize the evidence used by the police to determine the primary aggressor. This includes questioning the credibility of witness statements and interpreting physical evidence.

California criminal defense attorney

Presenting Alternative Evidence

An attorney can also gather evidence to present a different narrative, challenging the prosecution's version of what happened. They can, for example, present additional evidence that the police may have overlooked or misinterpreted, such as text messages, emails, or medical records.

Contesting the Protective Order

A criminal defense attorney can also challenge the issuance of a protective order, which can have significant implications for the accused. They can provide evidence and arguments to show that their client does not pose a threat to the alleged victim, allowing them to continue living at home and potentially maintaining custody of their children.

Negotiating with Prosecutors

Sometimes, the best course of action may involve negotiating with prosecutors to reduce charges or, ideally, secure a dismissal. An attorney with a thorough understanding of California's domestic violence laws can leverage their legal knowledge and relationships to advocate effectively on their client's behalf.

Advocating for Justice in Court

If the case goes to trial, the attorney will advocate on behalf of the defendant, aiming to demonstrate that the client was not the primary aggressor or was acting in self-defense.

First-Offense Domestic Violence

First-Offense Domestic Violence

A domestic violence case is considered a first-offense domestic violence case if a person arrested has never been convicted of a domestic violence-related charge, which includes domestic battery, spousal abuse, assault, or battery.

First-offense domestic violence convictions can carry a wide range of specific consequences. The punishment imposed can be influenced by an attorney experienced in domestic violence cases and the particular county in which the arrest occurred.

First-offense domestic violence punishments can be more severe if one of the participants requires medical treatment or has serious injuries.

The consequence will be even more severe if one of the participants suffers great bodily injury. Some courts or prosecutors will impose an even more severe consequence if multiple incidents occur. Contact us for more information. Eisner Gorin is in Los Angeles, CA.

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About the Author

Dmitry Gorin

Dmitry Gorin is a licensed attorney, who has been involved in criminal trial work and pretrial litigation since 1994. Before becoming partner in Eisner Gorin LLP, Mr. Gorin was a Senior Deputy District Attorney in Los Angeles Courts for more than ten years. As a criminal tri...

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