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Saturday, October 6, 2012

From Father to Sons: False Complaints of Domestic Violence

Written by: Brian Richard Dinday, Criminal Defense Attorney, who died at age 62 in an abalone diving accident off the coast of Sonoma, California in November of 2009. He went diving with his son, age 30. A careful diver and a strong swimmer, he was swept away from the shore in rough surf and heavy waves, as 4 other men who died there that year.  He left behind four grown children and wife.


How can anyone be "presumed guilty" in American Courts?

The authorities do not call it that, of course. But here is what happens in some jurisdictions when a 911 call is made reporting domestic violence. The police arrive and will only talk to the person who made the complaint. Even if the investigation shows that the complaint was clearly false, some police departments have a policy that they must make an arrest on every D.V. house call. The intent is to prevent further and worse violence after they leave. The reality is that even where they can clearly see that the D.V. report was a lie, they still have to arrest him. ie, "presumed guilty". Then the Court will automatically issue a "stay away" order, barring the arrestee from going near the complaining party, but also barring him from his home, if she lives with him. Then when the complainant tells police and prosecutors that she or he fabricated the alleged assault, police and prosecutors decide that the renunciation of the complaint is the lie, not the original report. Presumed guilty.


Police wouldn't actually arrest someone they KNOW is innocent, would they?

I can only tell you that in San Francisco, it is police department policy that an arrest has to be made every time they respond to a domestic violence call. Though police spokesmen were reluctant to go on the record when I canvassed San Francisco Bay Area Police Agencies, I believe this policy I believe this policy is widespread. I personally had a case where a woman called 911 to report that her husband hit her in the face with a length of steel pipe, knocking her to the floor. The police truthfully noted in their report that she had no mark whatever on her face, but arrested him and put him in jail anyway.


But after the couple cool down, they will drop the false charges, won't they?

Nope. Because it is well known that battered women will defend their abusers, prosecutors have a wide-spread policy of not dropping D.V. charges no matter what the "victim" says. If she or he confesses that the D.V. report was a lie born of anger and rage, they assume otherwise and continue prosecuting. The "victim" does not have the right to drop charges. In fact, once the 911 call is made, the couple has lost control over their relationship for awhile. It's in the hands of the police, prosecutors and judges.


If someone is proved to have made a false D.V. charge, they'll be prosecuted for THAT, won't they?

Again, no. Here is why. Prosecutors will tell you that if they ever prosecuted a woman for making a false report of D.V. and having someone falsely arrested, it would discourage other battered women from ever calling 911. In 32 years of criminal defense law practice, I have neither seen nor heard of even one person prosecuted for making a false D.V. complaint. People who like to use false D.V. complaints as "payback" for some grievance, grudge or emotional hurt, have total functional immunity for doing so. The domestic violence justice system in my opinion is seriously distorted from normal justice enforcement. We really can protect women from real violence without encouraging all this gamesmanship.


Don't police and prosecutors understand that people will say things they regret during an argument with a lover?

Apparently not. But that is not the only reason for the growth of false D.V. complaints. There is also profit. If the accused is wealthy, good money can be made on the civil lawsuit after he or she is convicted. Then there is vengeance, as when a lover is caught cheating on the other. Then there is the "Hell hath no fury..." situation, and let's not forget that some people are just insane and/or vindictive.


Is all this the necessary price of protecting women from brutality?

I'm not so sure that this blind prosecution of all complaints, no matter how obviously frivolous, is protecting anyone. I am convinced that you can protect women from real violence without giving the mean-spirited or crazy ones absolute power to persecute others. However, my fear is this: it is fairly common knowledge now that no matter what the victim says, the police and prosecutor won't drop the charges, and he will go to jail. Please understand that this can be true even if the alleged "assault" was just a push that resulted in no injury. There goes the bread winner, the lover, the spouse, the father. So I suspect many women who might benefit from a police visit to separate the couple and restore peace, will be afraid to call them at all, because they don't WANT him arrested or jailed, just removed for an hour. The situation has gotten way out of hand. I have been told by women that they would not call police again, because the police jailed their men against their wishes.


What should I do if my lover is screaming and threatening to call police even though I have not touched him/her?

Leave immediately and go sleep somewhere else that night. When he/she cools down, insist on going to joint counseling.


What should I do if I my lover calls 911 or threatens to?

Never attempt to stop the complaining party from calling 911. That's an additional crime. Remain very calm. Point out to the police any physical evidence that contradicts the report that was made to the police, and politely, earnestly ask them to make note of that evidence, or seize it and keep it in the police evidence locker. Telling your side of the story is unlikely to do any good, and they may not listen anyway. Do not express any anger at the complaining party in front of the police. If YOU have any marks from the dispute, be sure and show them to the police and ask them to photograph them. You would not believe how many D.V. cases I have litigated where the wife was the one calling 911, and she had no marks at all, but the husband DID. Call an experienced Domestic Violence lawyer ASAP. As slanted as the legal system is on these cases, much can be done to defend you on a false complaint. Though prosecutors resist mightily, I sometimes get dismissals eventually.


Do women ever get prosecuted for domestic violence?

Yes. My cases have run about 5 male to every 1 female client. Interestingly, when the man is arrested, it is usually the complaining female who calls me to hire me to defend him. Please understand that most domestic violence cases are legitimate ones, where the arrestee DID commit a battery, but it is becoming more and more common for people to use false D.V. complaints as control games. How hard is it to report "He pushed me." and how hard is it to prove that he didn't? There usually are no marks with a push, so It can't be disproved. I have one client whose wife admitted that she often threatens to call police to report him for D.V. just to win a dispute, even though he never touched her.


My boyfriend and I have had several fights where the police got involved.

You BOTH need to go to counseling to figure out how to break that cycle. It is NOT a totally one sided problem, even though the Courts treat it as one.

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