Office for the Prevention of Domestic Violence

David A. Paterson, Governor • Amy Barasch, Esq., Executive Director

NYS Hotline: 1-800-942-6906 || Spanish: 1-800-942-6908

OPDV Bulletin:
The Primary Aggressor Law

The mandatory arrest provision of the Family Protection and Domestic Violence Intervention Act of 1994 was designed to protect the victims of domestic violence by ensuring that abusers are arrested when there is probable cause that a crime has been committed. However, when the provision went into effect in 1996, victims and domestic violence advocates began to report an undesirable consequence of the law - an increase in "dual arrests" - arrest of both the abuser and the victim.

The previous law

The old law mandated that police officers arrest any person if the officer has reasonable cause to believe the person committed a misdemeanor constituting a family offense. It didn't specify arresting only the primary aggressor, so in some cases police officers were interpreting this to mean that in some situations, both parties would have to be arrested. Also, while police officers were forbidden from asking a victim of a family offense whether s/he wanted an arrest of the person responsible for the offense, they were not prohibited from threatening arrest for the purpose of discouraging police action. The current law attempts to address these weaknesses in the previous law in order to provide increased protection for victims of domestic violence.

Dual arrests a problem

Dual arrests may occur for a variety of reasons. Police responding to domestic violence calls may be confronted with sharply conflicting accounts of what transpired, with each party claiming to be the victim. The victim may have used justifiable force against the abuser in self- defense. A false cross-complaint may be made by the abuser. Both parties may exhibit some injury. The police may fear that failure to arrest both parties may result in civil liability.

When dual arrests occur in domestic violence cases, the victim of domestic violence is re- victimized by the criminal justice system. It is likely that a victim who calls the police only to be arrested herself will avoid the criminal justice system the next time she is abused -- the exact opposite of the intention of the 1994 Domestic Violence Act.

The current law

The current law, passed 1/12/98, amends paragraph (c) of subdivision 4 of the Criminal Procedure Law to effect major changes in how police handle domestic violence incidents. First, it prohibits police officers from threatening an arrest for the purpose of discouraging police intervention in domestic violence situations. Second, it specifically says that an officer is not required to arrest every family member or household member who may have been involved in a misdemeanor family offense and it stipulates the criteria that the officer must consider when attempting to identify and arrest the primary aggressor. Specifically, when attempting to identify the primary aggressor and deciding if an arrest is appropriate, an officer must consider: the comparative extent of any injuries, whether any threats were made, whether any person has a prior history of domestic abuse, and whether the person acted defensively. In addition, the law provides that an officer is not required to make an arrest when the officer reasonably believes that a person's conduct was justified under Article 35 of the Penal Law.

Following is a set of guidelines developed by the Division of Criminal Justice Services and the Office for the Prevention of Domestic Violence, to aid police officers.

Primary Physical Aggressor Guidelines

Cross-Complaints/Primary Aggressor

1. The intent of this policy is to protect the victims of domestic violence.
   
   
2. Cross-complaint arrests based solely upon the parties' allegations shall not be made. Where probable cause exists to believe that more than one family or household member has committed a family offense misdemeanor against one or more such members, the following policies shall apply:
   1. the officer shall not inquire as to whether the victim seeks an arrest of such person, or
   2. threaten the arrest of any person for the purpose of discouraging requests for police intervention.
   
   
3. Officers are not required to arrest both or all parties. However, the "primary physical aggressor" shall be arrested. The primary physical aggressor is not necessarily the person who was first to use force. During the officer's investigation to determine who was the primary physical aggressor, the officer shall consider the following:
   1. the comparative severity of any injuries inflicted by and between the parties;
   2. whether any such person has made threats of future harm against another party or another family or household member;
   3. whether any such person has a prior history of domestic violence that the officer can reasonably ascertain;
      Note - When investigating this factor at the scene, the following sources of information may be available: agency records, NYSPIN Registry of Orders of Protection, criminal history, prior acts of violence against others, reports of other officer(s) responding to address for past incidents and statements of neighbors or others in the residence.
   4. whether any such person acted defensively to protect himself or herself or a third person from injury.
   
   
4. When investigating such a case, the officer shall evaluate each person's complaint separately to determine who was the primary physical aggressor. The officer shall not base a decision to arrest or not to arrest on the willingness of a person to testify or otherwise participate in a judicial proceeding.
   
   
5. The arrest of the primary physical aggressor does not prohibit the officer from arresting both or all parties. If more than one arrest is made, a separate Domestic Incident Report (DIR) shall be filed for each victim and each DIR shall cross reference the other.
   
   
6. No arrest shall be made for acts which officers have probable cause to believe were committed in self-defense in accordance with Article 35 of the Penal Law of New York.
   
   
7. Should a complaint relating to the same incident be made at a later time -- a delayed cross-complaint -- it shall be investigated according to the guidelines outlined above and any arrest decision shall be made in a manner consistent with this policy.