Unfortunately, there are people who are willing to exploit the true victims of domestic violence and use the experiences of these victims to gain the sympathy of the judicial system and the players involved. Because of the suffering of the real victims of domestic violence, there exist several levels of protection of potential victims within our judicial system.
Locally, our police departments and sheriff’s department are trained to attempt to identify victims of domestic violence. The state legislature has removed from these officers much of the discretion they once had to determine if an arrest should occur. Upon arriving at a domestic violence call, if the officers are able to determine the primary aggressor they must arrest this person despite the intentions of the alleged victim. A trained officer with decades of experience can no longer decide that a particular situation was one that occurred for many reasons and for whatever reason is not likely to continue or escalate. The officer must arrest the primary aggressor despite the negative impact this may have on the family, including additional lodging, as this person may be barred from returning to the residence, attorney fees, bond, as well as the possibility of loss of employment. Upon posting bond and leaving the jail the Defendant then has, as a condition of his or her release from jail, a restriction on returning to the residence or having any contact with the alleged victim.
Officers are trained to provide these alleged victims with the contact information of the domestic violence shelter and on the availability of and Order of Protection. This alleged victim, who may have actually been the primary aggressor, now has exclusive possession of residence and has been informed on how he or she may obtain and Order of Protection that will give him more her custody of the children as well as the pets and will at least temporarily bar the arrested individual from having any contact with the children. All the alleged victim needs to do is go to the courthouse and fill out an Ex Parte (Temporary) Petition for an Order of Protection and allege minimal facts, indicating that they are a victim of abuse at the hands of the other party and that they are in fear. These are routinely granted even on thinnest of allegations and without any proof at all. Once granted, the alleged victim now has the ability to manufacture evidence, investigate the other party by viewing things that were once private such as e-mails diaries etc.. The alleged victim may also have the ability to influence the parties’ minor children to side with them and against the other parent.
This upper hand is afforded victims of domestic violence, in order that, we, as a society, may avoid the very real and tragic consequences of failing to empower a true victim of domestic violence. Unfortunately, there are those among us who seek to further their position in a divorce or custody matter by alleging domestic violence where it does not exist. Others have even gone so far as to create a situation that leads to domestic violence that otherwise would not have occurred; in order that they may avail themselves of the upper hand that victims of domestic violence often wield. This is particularly unjust and unsettling, but is a byproduct of necessary laws such as these. It is for this very reason that it is important that a person accused of domestic violence assault should speak with an experienced attorney who can help them immediately begin building their defense.
I have represented people wrongfully accused of domestic violence assaults in Williamson County Tennessee in Franklin, TN and each of the surrounding jurisdictions. I find it as a common theme that once it has been revealed that person has alleged domestic violence but has failed in demonstrating the veracity of the claim, judges immediately become suspicious. If in fact it is revealed that the allegations of domestic assault were in fact false allegations, the perpetrator of the fraud upon the court will find themselves in the position of lacking in the court’s confidence in any further testimony of that party.
So how does one prove a negative? How does a person, wrongfully arrested for domestic violence assault or served with an Ex Parte Order of Protection demonstrate to the court that they did not in fact commit the offenses for which they have been accused? One can naïvely believe that they are innocent until proven guilty, but that will not likely render them successful. A defendant must take affirmative action in order to be successful in defending themselves against allegations in either situation. Photographs should be taken immediately of the defendant if for no other reason than to show that there are no defensive wounds. Telephone records must be preserved. Surveillance cameras in some locations may be obtained to determine if an alleged assault did in fact occur and may also prove important in establishing a timeline. Credit card and banking information may be obtained to demonstrate that an alleged victim was under the influence of alcohol or any other intoxicant. Medical records may be subpoenaed to demonstrate that an alleged victim provided medical staff with an alternative explanation for wounds which they have been treated for in the past.
Often times it is useful to go to our courthouse and other jurisdictions and investigate whether or not this alleged victim has claimed domestic violence before. They may have accused other individuals and it may even be necessary to contact those individuals and rally their support. One can do nothing, but they will most often find that such inaction yields nothing as well. It is imperative that a person accused of domestic violence assault immediately seek the help of an experienced attorney capable of quickly determining the appropriate steps towards a successful defense. Thank you for reading this and have a blessed day!
By John Milazo