Who’s the victim? Police look for ‘predominant aggressor’ in domestic cases

The Bismark Tribune, May 4, 2008
The man on the video holds a towel to his bleeding head, screaming at officers about how his wife struck him with an ashtray. Responding to his demands to get in the room, his wife soundlessly walks in, shoulders slumped, head down, tears running down her face.

The officers try to figure out what happened. Still yelling, the man tells one officer he and his wife were arguing and she hit him in the head. The woman confirms his account of the events to another officer.

So, who, if anyone, should be arrested? Clearly, both parties agree that the woman hit her husband with an ashtray. It seems like a simple case.

But today’s officers are asked to take a closer look.

Officers in North Dakota are required to consider whether either party in a domestic dispute used violence in self-defense and to determine before making an arrest which person is the predominant aggressor in situations where both used violence.

The 2007 Legislature passed the “predominant aggressor” law, becoming one of 30 states to have such a statute, said Shelly Carlson, criminal justice project coordinator at the North Dakota Council on Abused Women’s Services.

Officers responding to domestic violence reports first have to determine whether either person acted in self defense. If neither did, they have to determine who was the predominant aggressor.

A predominant aggressor is defined by North Dakota law as the person who is the most significant, not necessarily the first, aggressor in a situation. The factors that go into deciding who was the predominant aggressor include weighing the severity of injuries each person has, history of domestic violence or other violent acts on the part of either person, and the likelihood of whether one person could face future harm from the other person.

“You start to look at all the past history, and it helps you make the decision who is the batterer,” Burleigh County Sheriff’s Deputy Troy Fleck, a domestic violence investigator, said.

Though the predominant aggressor measure passed easily through the Legislature, with unanimous do-pass recommendations from committees and votes of 84-4 in the House and 35-10 in the Senate, not everyone was enthusiastic about the new law. Sen. Tracy Potter, D-Bismarck, voted against the bill because he felt it took away the discretion of police officers in making arrests. The bill, HB1238, changed the law from giving officers criteria they “may”consider to criteria they “shall” consider in determining who to arrest in a domestic dispute.

“That means we’re telling a police officer how to do his job,”Potter said.

Bismarck attorney Tim Purdon thinks the new law makes decision-making in domestic situations harder for law enforcement. While previously, officers could look at the crime scene and determine who should be arrested, they now have to dig into whether either party has done anything violent in the past and try to determine whether they could be involved in other violent acts in the future.

Throwing in the additional factors to consider could make domestic disputes harder for officers to handle, Purdon said.

“Law enforcement already has a really, really difficult job in these situations,”he said.

Purdon said the use of a person’s criminal history in determining who to arrest also is “troublesome.”

“We don’t punish people for acts they’ve done in the past,”he said.

Carlson, who lobbied in favor of the law, said the measure was intended to decrease dual arrests, where law enforcement arrests both people involved in the dispute, and to keep victims who use violence in self defense from being arrested.

Burleigh County Assistant State’s Attorney Pamela Nesvig, who prosecutes domestic violence cases, said the measure seems to have slowed the number of dual arrests. In 2007, only 10 dual arrests were made in 800 domestic cases in the county, which she said was down from previous years. The law went into effect on Aug. 1, 2007.

Carlson uses the video described above in law enforcement training on domestic violence situations that she does in North Dakota and nationally. In situations such as the one portrayed on the video, officers need to ask more questions to get to the root of the problem, she said.

The video goes on to show what happened before the police arrive. The woman shows her husband the new dress she bought for a party. He becomes angry over her using “his money” for a dress. He calls her names. He tells her she’s not going to the party, because he wants to go out with friends, and he’s not hiring a baby sitter. He accuses her of having a boyfriend she wants to see at the party.

As he backs her into a corner, he takes off his wedding ring. Then, the woman hits him at his hairline with a nearby ashtray.

Though the woman was the only one in the situation who used violence, officers trained to investigate domestic violence try to figure out what else may have been happening before making an arrest, Fleck said.

The officers on the video learn that the man had a previous domestic assault conviction in another state. In that case, he had left a mark on his wife’s face with his ring. As they questioned the woman, they learned her husband takes his ring off before he hits her now. So, the woman’s action in hitting her husband when he took off his ring can be seen as self defense, a preemptive measure to keep him from hitting her, Carlson said.

“The law absolutely allows people to defend themselves and or others,”she said.

Without asking more questions and looking a little closer, the officers would have arrested a woman who was a victim, Carlson said. Since the man also did nothing illegal, neither of the people should be arrested, she said.

If one person has convictions for domestic violence or other violent offenses, those convictions lend credibility to that person being the predominant aggressor. That’s part of the reason officers are trained to look for signs that someone may have acted in self defense. If officers in the training video acted on first impressions, they would have arrested a woman who had acted in self defense. She may have been charged and could have pleaded guilty before anyone looked at the case, Carlson said.

Then, the next time the couple gets in a fight and police show up, both people have criminal histories related to domestic violence.

Nesvig said area officers do a good job of determining who to arrest in such situations. Rarely does she receive a domestic assault case where someone has been arrested that she doesn’t think should have been, she said.

“They’re really good at judging people at the scene,” she said.

At training sessions for determining predominant aggressors, participants are given a disclaimer telling them that the “suspects” will be referred to as males and the “victims” as females, Burleigh deputy Fleck said. The purpose of the stereotypes is not to perpetuate discrimination against men, but to show normal situations, he said.

In 2006, 4,734 calls were made to North Dakota domestic violence crisis centers. Women were callers 95 percent of the time, Carlson said.

Though women are more likely to be victims of domestic violence, officers look at the facts of the case to determine who to arrest, Fleck said.

“Law enforcement in general gives everyone a fair chance to report their crimes,” he said. “The evidence carries the same weight whether it’s male or female.”

Nesvig said she has prosecuted women for domestic violence, though it does not happen as often she prosecutes men.

All domestic violence reports, even ones that do not yield arrests, are passed on to domestic violence advocates, Fleck said. Advocates often send letters to the address where the domestic dispute occurred, not addressed to one person or the other, offering their assistance, Carlson said.

Such efforts are done to try to stop problems before they get out of hand, Fleck said. Burleigh County has a domestic violence task force, which Fleck and Nesvig are on, that combines law enforcement, prosecution and advocates to make sure domestic violence victims are offered help and cases are handled in a uniform manner.

“People are less apt to report it if they’re not getting help,” Fleck said.

Once the investigation concludes, prosecutors like Nesvig make the determination of what, if any, charges to file. Even if someone wasn’t arrested at the scene, prosecutors may still decide to charge someone. Burleigh County has moved toward an “evidence based” system of prosecution, where prosecutors will proceed with a case even if the victim doesn’t want that to happen, Nesvig said.

“In most domestic cases, the victim either doesn’t want to cooperate or recants their original version of the story given to law enforcement,” she said.

“It’s natural for them to want to protect their spouses,” Fleck said.

Victims often believe they are the ones who are bringing the charges against a suspect, Nesvig said. However, criminal cases are for violations of state law, and if evidence exists that a crime occurred, prosecutors proceed with the case even without victim cooperation, she said.

The decision on how to proceed with a case is determined on a case-by-case basis, Nesvig said. “He said, she said” cases might be dropped if a victim doesn’t want the case to go to trial, but a case with enough evidence without a victim’s testimony likely will go through the system just the same, she explained.

“If we have enough evidence to proceed without the victim, we will,” Nesvig said.

Prosecutors proceed with the cases because it’s their job to charge people for breaking the law, she said. In domestic cases, they also hope to stop the cycle of violence and hold people accountable for their actions.

“Ultimately, we’re trying to look out for their best interests,”she said.