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Determining the predominant aggressor

Legislation should require the police to evaluate each claim of violence separately in situations where both parties claim violence. The police must look beyond the visual evidence and consider the context of the act of violence by identifying controlling behavior in the predominant aggressor and fear in the victim. Police should also realize additional or other predominant aggressors may not reside in the marital home, such as a spouse’s relatives who inflict or threaten violence against the victim.

Police must be able to recognize the tactics of power and control. They must consider such issues as: the severity of injuries inflicted by both parties, the difference in size and weight of the parties, the demeanor of the parties, any prior complaints of violence, claims of self-defense and the likelihood of further injury to a party. Police should take into account patterns of deprivation of clothing and food, or restrictions on the victim’s freedom of movement.

The determination of the predominant aggressor, and the reasons for that determination, must be included in the police report. Otherwise, offenders will successfully manipulate the system and victims will not be protected. As a result, victims may not contact police the next time violence occurs. (See the Duluth Pocket Card Case Study, above.)

If the predominant aggressor is misidentified, there could be important legal consequences for the victim, such as the denial of custody of children, of housing rights and of immigration rights. Additionally, without being identified as a victim, a person would not be eligible for shelter or other forms of aid mandated by statute.

Legislation should also address situations where there is no claim of interpersonal violence, but rather, an allegation that the woman’s injuries are due to accidents. Police should be aware of common explanations that offenders use to explain dowry-related injuries, such as stove explosions. Also, police must be able to recognize burn injuries that are reflective or not of genuine accidents, or they must be mandated to send the victim to an authorized medical examiner for a determination. For example, an authentic stove accident will often result in burns to a maximum of 30% of the body on the limbs and stomach. Intentionally-inflicted stove burns can result in injuries on up to 85% of the victim’s body.

 

CASE STUDY: In Lichhama Devi v. State of Rajasthan, AIR 1988 SC 1785 (India), the police investigation of a burning death focused only on the mother-in-law and not the victim’s husband. Yet, the mother-in-law stated her son may have been guilty, and neighbors recounted the husband being in the kitchen and running downstairs while his wife was on fire. Moreover, the fact that the husband failed to assist her while she was on fire, did not transport his wife to the hospital, and did nothing to obtain a needed blood transfusion for her indicated some involvement with her death. Police, however, only pursued prosecution against the mother-in-law, and the court deplored the investigating body’s lack of diligence.

 

The Criminal Domestic Violence law of South Carolina, USA, includes the following provisions on determining the primary aggressor:

(D) If a law enforcement officer receives conflicting complaints of domestic or family violence from two or more household members involving an incident of domestic or family violence, the officer must evaluate each complaint separately to determine who was the primary aggressor. If the officer determines that one person was the primary physical aggressor, the officer must not arrest the other person accused of having committed domestic or family violence. In determining whether a person is the primary aggressor, the officer must consider the following factors and any other factors he considers relevant:

(1) prior complaints of domestic or family violence;

(2) the relative severity of the injuries inflicted on each person taking into account injuries alleged which may not be easily visible at the time of the investigation;

(3) the likelihood of future injury to each person;

(4) whether one of the persons acted in self-defense; and

(5) household member accounts regarding the history of domestic violence.

(E) A law enforcement officer must not threaten, suggest, or otherwise indicate the possible arrest of all parties to discourage a party's requests for intervention by law enforcement.

(F) A law enforcement officer who arrests two or more persons for a crime involving domestic or family violence must include the grounds for arresting both parties in the written incident report, and must include a statement in the report that the officer attempted to determine which party was the primary aggressor pursuant to this section and was unable to make a determination based upon the evidence available at the time of the arrest.

(G) When two or more household members are charged with a crime involving domestic or family violence arising from the same incident and the court finds that one party was the primary aggressor pursuant to this section, the court, if appropriate, may dismiss charges against the other party or parties. Section 16-25-70

(See: Family Violence: A Model State Code Sec 205 (B); and Determining the Predominant Aggressor, StopVAW, The Advocates for Human Rights)