Counter dv case domestic violence case

Defenses Against a Domestic Violence Case

Domestic violence claims 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 Domestic Violence (DV) order, and
• a finding of domestic violence can affect alimony and child custody.

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. 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:

• homicide
• assault
• terroristic threats
• kidnapping, criminal restraint, or false imprisonment
• lewdness or s*xual assault
• criminal s*xual contact
• criminal mischief
• burglary
• criminal trespass
• harassment, or
• stalking.

If the DV charge is based on conduct that doesn’t fit any of the above, a judge may 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.

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 either party can obtain information and documents from each other and third parties).

Although DV laws don’t typically 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:

• copies of 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

• written statements or forms filled out by the plaintiff, and

• the TRO hearing transcripttttt.

Resources

If you have questions about defending against a domestic violence case, you should contact a criminal defense attorney in your area. See  Domestic Violence Laws and Penalties  from our parnter site, www.CriminalDefenseLawyer.com, for more information on criminal laws and penalties for domestic violence.

For the full text of the Prevention of Domestic Violence Act, see N.J.S.A. 2C:25-17-19

For the law governing domestic violence hearings,