December 11, 2009
DOMESTIC VIOLENCE PRIMARY AGGRESSOR LAWS
By: Soncia Coleman, Associate Legislative Attorney
You asked whether Connecticut and neighboring states have “primary aggressor” laws.
Like Connecticut, New Jersey, New York, and Rhode Island all have mandatory arrest laws. Mandatory arrest laws remove police discretion and require arrests in all cases where officers have probable cause to believe that an act of domestic violence has occurred. These states, with the exception of Connecticut, have “primary aggressor” laws. Such laws require officers to attempt to identify the “primary aggressor” when considering the arrest of both parties in a domestic violence situation. (Massachusetts' law does not have a mandatory arrest or primary aggressor provision.)
According to the U.S. Department of Justice's (U.S. DOJ) National Institute of Justice, dual arrests (i.e., the arrest of both parties) in domestic violence situations are more prevalent in states with mandatory arrest laws. However, states with laws or policies that encourage or require the arrest of the “primary aggressor” had a dual arrest rate that was a quarter of the rate in states without such laws or policies. For instance, a 2007 report submitted to the U.S. DOJ that examined dual arrest data from 2000 pointed out that Connecticut, which was the only mandatory arrest state without a primary aggressor law at the time, also had the highest dual arrest rate. (The report can be found at http://www.ncjrs.gov/pdffiles1/nij/grants/218355.pdf.) In 2004, the legislature's Judiciary Committee raised a bill that would have required police officer's to consider additional factors in the dual arrest context. However, most of the provisions were not adopted.
In 2004, the legislature's Judiciary Committee raised House Bill 5293, which would have required an officer, in determining whether to make an arrest of more than one of the opposing parties, to consider:
1. the officer's responsibility to protect victims of family violence,
2. the degree of any injuries inflicted on the parties,
3. the extent to which the parties have been placed in fear of physical injury to themselves or to other family or household members, and
4. any history of family violence and potential for future family violence between such parties that can reasonably be ascertained by the officer.
Additionally, the bill prohibited an officer from arresting a person if the officer believed that the party was acting in lawful self defense or in lawful defense of a third person.
During the public hearing on the bill, the Connecticut Coalition Against Domestic Violence testified that the bill addressed the increased arrests of victims of domestic assault that developed as a result of Connecticut's Family Violence and Response Act, the mandatory arrest law, adopted in 1986. It testified that Connecticut's dual arrest rate was significantly higher than the rate in states with comparable statistical measures of domestic violence arrests. However, others, such as the Connecticut Judicial Department, testified that the bill's requirements would be extremely difficult to implement and could result in an inconsistent application of the law. Ultimately, those provisions were stripped from the bill before it was voted out of committee and only the self-defense provision became law.
Table 1 describes the primary aggressor laws in neighboring states.
Table 1: Primary Aggressor Statutes
Primary Aggressor Statutes
In determining which party in a domestic violence incident is the victim where both parties exhibit signs of injury, the officer should consider (1) the comparative extent of the injuries; (2) the history of domestic violence between the parties, if any; and (3) any other relevant factors. No victim can be denied relief, arrested, charged with an offense because the victim used reasonable force in self defense against domestic violence by an attacker (N.J. Stat. § 2C:25-21(c)).
When an officer has reasonable cause to believe that more than one family or household member has committed an act of domestic violence, the officer is not required to arrest each person. In these circumstances, the officer must try to identify and arrest the primary physical aggressor after considering: (1) the comparative extent of any injuries inflicted by and between the parties, (2) whether any person is threatening or has threatened future harm against another party or another family or household member, (3) whether any person has a prior history of domestic violence that the officer can reasonably ascertain, and (4) whether any person acted defensively to protect himself or herself from injury. The officer must evaluate each complaint separately to determine who is the primary physical aggressor.
Nothing in the statute requires the arrest of any person when the officer reasonably believes the person's conduct is justifiable under New York's self-defense law (Crim. Proc. Law § 140.10(4)).
When an officer has probable cause to believe that family or household members have assaulted each other, the officer is not required to arrest both persons. The officer must arrest the person whom the officer believes to be the primary physical aggressor (R.I. Gen. Laws § 12-29-3(c)(2)).