Domestic violence is a very serious problem. Each year thousands of domestic violence (“DV”) cases are filed. While most cases have merit, some accusers bring false charges against their spouses or partners in order to gain an advantage in divorce and/or custody proceedings. This article provides a basic overview of domestic violence defense.
Temporary Restraining Order
A Temporary Restraining Order (“TRO”) is the first step in a domestic violence case. TROs are usually obtained through an ex parte court proceeding. Ex parte means the “plaintiff” (person claiming to be a victim of domestic violence) may ask for a court hearing without notifying the defendant (person accused of domestic violence).
At the TRO hearing, the plaintiff may testify or bring in other evidence of domestic violence. There is usually a court reporter present who will record what is said. If the court finds sufficient evidence, it will issue a TRO against the defendant. A police officer or sheriff must serve (deliver) the TRO to the defendant within 24 hours of the hearing.
A TRO prohibits the defendant from engaging in certain behaviors on a temporary basis. The defendant will be restrained from having contact with the plaintiff and prohibited from returning to his or her home if it’s shared with the plaintiff. In custody cases, TROs may also prevent defendants from visiting their children.
TROs usually expire within 10 days. In order to extend a TRO, the plaintiff must file a complaint for domestic violence, and ask for a full court hearing.
Domestic Violence Complaint
Plaintiffs must fill out a “Confidential Victim Information Sheet” and another form called the “Victim’s Voluntary Statement Detailing Prior History of Domestic Violence.” The Victim Information Sheet will contain critical information, including whether the plaintiff was injured, whether photographs were taken, and whether there was any property damage. The plaintiff must include a complete description of the incident, and explain the need for a further restraining order.
A court staff person uses the information contained in these forms to prepare a DV complaint. The complaint will indicate the date the alleged incident occurred, and the plaintiff’s claims regarding what happened. A police officer or sheriff must serve the defendant with a copy of the complaint which will include the date set for the hearing.
If, after the hearing, the court finds that the defendant committed domestic violence, it may grant the plaintiff a more permanent restraining order prohibiting the defendant from initiating any contact for a number of years.
Defending Against the Domestic Violence Charge
Domestic violence charges can result in severe legal consequences for defendants including:
- eviction (being removed from one’s home)
- heavy fines and legal fees
- criminal penalties or jail for violations of a DV order, and
- a finding of domestic violence can affect alimony and child custody (courts may prevent parents with a history of domestic violence from visiting their children).
With so much at stake, it’s essential to prepare a strong defense. If you’ve been falsely accused of domestic violence, you should consider hiring an attorney experienced in DV cases to help guide you through the process and represent you at trial.
Consider asking for a continuance
Since a DV hearing is generally held within 10 days after the complaint is filed, you may want to ask the court to continue the hearing date so you have enough time to prepare your defense. However, if the court grants your continuance, it may also extend the TRO until the new hearing date.
Question whether the act complained of really constitutes “domestic violence”
A DV complaint must be based on one or more of the following acts:
- terroristic threats
- kidnapping, criminal restraint, or false imprisonment
- lewdness or sexual assault
- criminal sexual contact
- criminal mischief
- criminal trespass
- harassment, or
If the DV charge is based on conduct that doesn’t fit any of the above, a judge will likely dismiss the case. For example, if you slipped up and used a few choice words to refer to your spouse’s new partner, you probably haven’t committed domestic violence. If, on the other hand, you struck your spouse or partner, that most likely constitutes an assault.
Check to see if the “jurisdictional” requirements have been met
A judge may dismiss a DV case that lacks “subject matter jurisdiction.” This is just a fancy way of saying that the two people involved in the DV case – the plaintiff and the defendant – must fall within at least one of the following categories of persons protected by the Prevention of Domestic Violence Act (“PDVA”):
A spouse, former spouse, or former household member. The PDVA defines a victim of domestic violence as any person who is 18 years of age or older (or an emancipated minor) who is subjected to domestic violence by a spouse, former spouse, or any present or former household member.
Those who have a child or will be having a child together. A victim of domestic violence also includes any person (regardless of age) who has a child in common or anticipates having a child (is currently pregnant) with the defendant.
Those in a dating relationship. Finally, a victim also includes any person who is subjected to domestic violence by a person with whom the victim had a dating relationship.
You (or your lawyer) should analyze the facts of a DV case to make sure both people involved are protected under the PDVA.
Analyze any defenses to the domestic violence charge
There are only two defenses for DV cases: self-defense and de minimis infractions. In many DV cases, the plaintiff may suffer injuries because the defendant was legitimately defending against imminent bodily harm.
Under the doctrine of self-defense, a defendant may be justified in the use of physical force toward the plaintiff, if the defendant reasonably believed that such force was necessary to protect against the plaintiff’s use of unlawful force.
The second best defense is that the alleged act of domestic violence is a de minimis infraction, which is minor conduct that is too trivial to be considered a criminal offense. The de minimis infraction doctrine is primarily used to defend against DV cases based on harassment.
Conduct discovery before trial
The time frame from the filing of the DV complaint to the actual trial is usually less than 30 days. Therefore, it’s difficult to conduct full “discovery” (a legal process by which you can obtain information and documents from the plaintiff and third parties).
Although the DV laws don’t contain specific provisions for discovery, the principles of due process and fair play require that all discovery methods be available to DV defendants. Therefore, you (or your attorney) should ask the plaintiff for the following documents:
- medical records or reports regarding any physical injuries the plaintiff claims to have suffered
- a list of witnesses the plaintiff intends to call at trial, and
- copies of all evidence that the plaintiff will rely on or introduce at trial such as photographs, tape recordings, and expert reports.
It’s also important to get relevant documents from the police department and other third parties so you can see what the plaintiff has said about the DV claims. Ask for the following.
Domestic violence reports and telephone recordings
If you’re defending against a DV claim, you need to find out what the plaintiff told the police when the alleged domestic violence was reported. This information can then be used to “impeach” the plaintiff at the hearing/trial (show that his or her statements don’t match up). In many instances, the alleged victim’s version of events as reported to the police differs drastically from his or her testimony at trial.
Contact the local police department to find out if the plaintiff made a DV report. The report should indicate whether the police noticed any injuries on the plaintiff. In addition, the department may also have a recording of the telephone call reporting the incident, an incident report which dispatched officers to the scene, and/or a DV offense report.
Written statements or forms filled out by the plaintiff
As noted above, DV plaintiffs must fill out forms regarding their domestic violence claims. Any and all forms filled out by the plaintiff must be thoroughly reviewed prior to trial. It’s important, for example, to object to the plaintiff’s testimony of any prior acts of domestic violence that are not listed on the Victim Information Sheet.
The TRO hearing transcript
Remember that TRO hearings are typically recorded by a court reporter. So, even if you weren’t at the TRO hearing, you can still find out what the plaintiff said by ordering a copy of the reporter’s transcript.
You'll have to order the transcript at the expedited rate (around $300). The transcript will provide insight into the plaintiff’s version of the case, and can also be used to impeach the plaintiff’s credibility.
Look for inconsistent statements to impeach credibility
The question of whether domestic violence occurred typically turns on credibility (believability). This is because DV cases frequently come down to the plaintiff’s word against the defendant’s.
Once you’ve obtained the information identified above, you’ll be in a better position to identify inconsistent statements which may impact the plaintiff’s reliability. You can gauge credibility by asking the following:
- Is the plaintiff’s testimony at odds with what was alleged in the DV complaint?
- Does the plaintiff’s testimony at the DV trial conflict with testimony at the TRO hearing?
- Is the plaintiff’s testimony consistent with what he or she told police at the time of the incident?
- Has the plaintiff filed prior domestic violence complaints that have been proven to be frivolous?
- How much time elapsed between the alleged act of domestic violence, the report to the police, and the ultimate filing of the DV complaint?
- Can the plaintiff prove (eg., by photographs or medical records) the injuries sustained from the alleged domestic violence?
- Is there a pending divorce case where the plaintiff would obtain an advantage by the entry of a domestic violence order?