A married couple gets into a disagreement.  After a few minutes, one
party is extremely insulting and derrogatory (sp?) in a comment to the
spouse.  The second party responds by slapping the first party on the
cheek one time.  The original party immediately throws the second
party back-first into a wall, then proceeds to choke the second party
by putting their hands around the second party's neck, for a period of
about 20-30 seconds.  The second party is newly pregnant.  The second
party, in the process of being choked, scratches and hits the first
party, in an attempt to get the first party to let go.  The first
party finally stops.  The second party falls to the floor gasping for
air.  The second party then grabs the phone & calls 9-1-1, but hangs
up before the phone is answered.  The second party's fear is that if
she admits to having initially slapped the first party, she'll be the
one arrested and put into jail.  Are her fears justified, or wouldn't
the first party be the one to go to jail because of the gravity of
response---i.e. choking her around the throat.

---

Request for Question Clarification by tutuzdad-ga on 25 Aug 2004 13:34 PDT

In what state did this hypothetical incident occur?

tutuzdad-ga

---

Clarification of Question by grammaellen-ga on 25 Aug 2004 20:51 PDT

Let's say it happened in Ohio--what if anything does this change?

Dear grammaellen-ga;

Thank you for allowing me an opportunity to answer your interesting question.

?What if anything does this change??, you ask?

EVERYTHING.

I?ve been in law enforcement now for well beyond twenty years and I
happen to know something about this issue from first hand experience.
In fact, I happen to know a bit about the issue from an insider?s
viewpoint and I have some information about the law that may not be
widely known by the general public, which I will gladly share with
you.

There was a time many years ago when officers made these types of
domestic violence calls and focused primarily on calming the situation
down, admonishing the parties to behave themselves (or the husband to
handle ?his? domestic affairs more quietly) and then going about their
way. In time, this nonsense led to a trend of women becoming ?battered
wives? (as it was called back then) so the future focus shifted and
men began being routinely arrested for getting into a physical
altercation with their wives as a general rule.

With the progressively diverse unions nowadays however, battered
?partners? began being someone other than one?s wife ? or spouse of
either gender for that matter (domestic partners, gay and lesbian
relationships, etc).  In part perhaps because of this, many state laws
(but not all) eventually changed to recognize and include ANY domestic
partner and some states also extended the protection to family members
as well (brother vs. brother or son vs. father for example). Having
said that, many states stopped focusing entirely upon who the
?aggressor? is in these instances and started focusing almost
exclusively upon who the ?victims? in these crimes are (male or
female, married or not). Why do I tell you all this? Because this very
thing is what ultimately led many states to adopt mandatory arrest
laws, policies and procedures that dramatically impact the way they
handle domestic violence calls. In some jurisdictions these are known
as ?preferred arrest? laws/policies.

As it turns out (in response to your secondary question, ?What if
anything does this change??) Ohio happens to be one of the states
where police officers are REQUIRED to make an arrest in most domestic
violence circumstances. Here is the statutory requirement. Pay
particular attention to (A)(1)(a)(i). Other points of interest I will
annotate as well using brackets ( [ ] ):

???..

Ohio Rev. Code Ann. § 2935.032. Policies and procedures for responding
to alleged domestic violence offense or violation of protection order.
http://onlinedocs.andersonpublishing.com/oh/lpExt.dll/PORC/21582/2397f/239ff?f=templates&fn=document-frame.htm&2.0

(A)  Not later than ninety days after the effective date of this
amendment, each agency, instrumentality, or political subdivision that
is served by any peace officer described in division (B)(1) of section
2935.03 of the Revised Code shall adopt, in accordance with division
(E) of this section, written policies, written procedures implementing
the policies, and other written procedures for the peace officers who
serve it to follow in implementing division (B)(3) of section 2935.03
of the Revised Code and for their appropriate response to each report
of an alleged incident of the offense of domestic violence or an
alleged incident of the offense of violating a protection order. The
policies and procedures shall conform to and be consistent with the
provisions of divisions (B)(1) and (B)(3) of section 2935.03 of the
Revised Code and divisions (B) to (D) of this section. Each policy
adopted under this division shall include, but not be limited to, all
of the following:
  
(1) Provisions specifying that, if a peace officer who serves the
agency, instrumentality, or political subdivision responds to an
alleged incident of the offense of domestic violence, an alleged
incident of the offense of violating a protection order, or an alleged
incident of any other offense, both of the following apply:
   
 [Particular attention here where the officer is mandated by law to
treat such domestic assault as a felony]
 (a) If the officer determines that there are reasonable grounds to
believe that a person knowingly caused serious physical harm to
another or to another's unborn or knowingly caused or attempted to
cause physical harm to another or to another's unborn by means of a
deadly weapon or dangerous ordnance, then, regardless of whether the
victim of the offense was a family or household member of the
offender, the officer shall treat the incident as felonious assault,
shall consider the offender to have committed and the victim to have
been the victim of felonious assault, shall consider the offense that
was committed to have been felonious assault in determining the manner
in which the offender should be treated, and shall comply with
whichever of the following is applicable:
  
[And here, where, in a situation involving people have assaulted ONE
ANOTHER, the officer is mandated by law to arrest the primary
aggressor]
 (i) Unless the officer has reasonable cause to believe that, during
the incident, the offender who committed the felonious assault and one
or more other persons committed offenses against each other, the
officer shall arrest the offender who committed the felonious assault
pursuant to section 2935.03 of the Revised Code and shall detain that
offender pursuant to that section until a warrant can be obtained, and
the arrest shall be for felonious assault.
  
[And here, where, in a situation involving people have assaulted ONE
ANOTHER, the officer is mandated by law to arrest the primary
aggressor]
(ii) If the officer has reasonable cause to believe that, during the
incident, the offender who committed the felonious assault and one or
more other persons committed offenses against each other, the officer
shall determine in accordance with division (B)(3)(d) of section
2935.03 of the Revised Code which of those persons is the primary
physical aggressor. If the offender who committed the felonious
assault is the primary physical aggressor, the officer shall arrest
that offender for felonious assault pursuant to section 2935.03 of the
Revised Code and shall detain that offender pursuant to that section
until a warrant can be obtained, and the officer is not required to
arrest but may arrest pursuant to section 2935.03 of the Revised Code
any other person who committed an offense but who is not the primary
physical aggressor. If the offender who committed the felonious
assault is not the primary physical aggressor, the officer is not
required to arrest that offender or any other person who committed an
offense during the incident but may arrest any of them pursuant to
section 2935.03 of the Revised Code and detain them pursuant to that
section until a warrant can be obtained.
  
(b) If the officer determines that there are reasonable grounds to
believe that a person, while under the influence of sudden passion or
in a sudden fit of rage, either of which is brought on by serious
provocation occasioned by the victim that is reasonably sufficient to
incite the person into using deadly force, knowingly caused serious
physical harm to another or to another's unborn or knowingly caused or
attempted to cause physical harm to another or to another's unborn by
means of a deadly weapon or dangerous ordnance, then, regardless of
whether the victim of the offense was a family or household member of
the offender, the officer shall treat the incident as aggravated
assault, shall consider the offender to have committed and the victim
to have been the victim of aggravated assault, shall consider the
offense that was committed to have been aggravated assault in
determining the manner in which the offender should be treated, and
shall comply with whichever of the following is applicable:
  
(i) Unless the officer has reasonable cause to believe that, during
the incident, the offender who committed the aggravated assault and
one or more other persons committed offenses against each other, the
officer shall arrest the offender who committed the aggravated assault
pursuant to section 2935.03 of the Revised Code and shall detain that
offender pursuant to that section until a warrant can be obtained, and
the arrest shall be for aggravated assault.
  
(ii) If the officer has reasonable cause to believe that, during the
incident, the offender who committed the aggravated assault and one or
more other persons committed offenses against each other, the officer
shall determine in accordance with division (B)(3)(d) of section
2935.03 of the Revised Code which of those persons is the primary
physical aggressor. If the offender who committed the aggravated
assault is the primary physical aggressor, the officer shall arrest
that offender for aggravated assault pursuant to section 2935.03 of
the Revised Code and shall detain that offender pursuant to that
section until a warrant can be obtained, and the officer is not
required to arrest but may arrest pursuant to section 2935.03 of the
Revised Code any other person who committed an offense but who is not
the primary physical aggressor. If the offender who committed the
aggravated assault is not the primary physical aggressor, the officer
is not required to arrest that offender or any other person who
committed an offense during the incident but may arrest any of them
pursuant to section 2935.03 of the Revised Code and detain them
pursuant to that section until a warrant can be obtained.
  
???..

There is bit more to this statue and you can read it in its entirety,
but for the purposes of your question the relative issues have clearly
already been addressed. As a member of law enforcement with
considerable field experience I must admit that each situation is
handled based in its merit and circumstances and no two situations are
ever the same. How the officers would view this particular scenario is
not for anyone to guess unless and until it actually happens in real
life, but suffice it to say that Ohio officers? hands are virtually
tied when it comes to arresting the primary aggressor in a domestic
violence situation (as it is in my own state and in many others).

The factors used to determine the primary aggressor is in Ohio are: 

History of violence 
The injuries and comparative severity 
Self-defense: who initiated and who retaliated 
Each person's fear due to threat and reasonableness of fear 


What does this mean? Well, as the primary aggressor (or the one
initiating the assault that originally gave rise to the physical
altercation) your hypothetical participant?s fears are well justified
and she is, in my opinion, based on my years of experience, QUITE
likely to be arrested (even though she IS pregnant). On the other
hand, if she lightly slapped her mutual combatant leaving no mark and
he in turn beat the living daylights out of her, he would have
committed a greater felony by assaulting her AND her unborn child and
HE is, in my opinion, much more likely in this scenario to be the one
arrested. Thirdly, let me say that in a situation where both parties
have marks and both parties have clearly assaulted one another in
mutual combat, it would not be unheard of for BOTH parties to me taken
into custody and let the judge decide who, if either of them, are
guilty. Finally, if it is not clear who the primary aggressor is, the
officer will tell the complainants to go to the prosecutor's office
the next day. The prosecutor will then decide whether (or not) to file
charges. In this last scenario of course, both parties escape
immediate arrest but potentially face future arrest.
	
In summary, is the female you mentioned likely to be arrested?  
Certainly. As the initiator of the altercation she defintely runs the
risk of being arrested.

?Will? she be arrested? 
That?s only for the Officers or the Prosecutor to decide and to
legally justify based on the always-complicated circumstances of the
real-life situation as applied to the law I have outline above.

Would the male who severely beat her up for striking him also be arrested? 
Undoubtedly (in my opinion, given the circumstances you described)


Below you will find that I have carefully defined my search strategy
for you in the event that you need to search for more information. By
following the same type of searches that I did you may be able to
enhance the research I have provided even further. I hope you find
that my research exceeds your expectations. If you have any questions
about my research please post a clarification request prior to rating
the answer. Otherwise, I welcome your rating and your final comments
and I look forward to working with you again in the near future. Thank
you for bringing your question to us.

Best regards;
Tutuzdad ? Google Answers Researcher


OTHER INFORMATION SOURCES

NEW DIRECTIONS ? LEGAL REMEDIES
http://www.newdirectionsshelter.org/legal.phtml

WOMEN AREN'T JUST VICTIMS OF DOMESTIC ABUSE
http://www.chillicothegazette.com/news/stories/20030625/localnews/540863.html





SEARCH STRATEGY


SEARCH ENGINES USED:

Google ://www.google.com




SEARCH TERMS USED:


OHIO

DOMESTIC VIOLENCE

LAW

STATUTE

OHIO CODE

PRIMARY AGGRESSOR

ASSAULT

BATTERY

PREFERRED ARREST POLICY

MANDATORY

REQUIRED

---

Clarification of Answer by tutuzdad-ga on 27 Aug 2004 05:58 PDT

Sure. I'd be willing to address a follow up question here so long as
it doesn't put us back at square one. Otherwise if your follow up
question requires a great deal more research you might want to post it
as a NEW question in order to get the answer it deserves.

Regards;
tutuzdad-ga

---

Request for Answer Clarification by grammaellen-ga on 27 Aug 2004 09:11 PDT

Tutuzdad--suppose in this scenario, the male was a retired Ohio police
officer, "retired" at an early age mostly due to health reasons, let's
say, bilateral hip replacement.  However, there was also a partial
mental health issue there as part of the medical retirement; maybe I
should say disability?  Anyway, the point is, how much, if any, does
the scenario change, in favor of the female I would think, considering
his background?  Thanks.  Last addendum, I promise!--GrammaEllen

---

Clarification of Answer by tutuzdad-ga on 27 Aug 2004 09:32 PDT

Ideally, neither the former profession of the male nor his physical or
mental status should impact the decision as to who violated the law.
This is not to say of course that he might be afforded a certain
"benefit of the doubt" by his former co-workers (responding officers)
if this were the case. Regardless of this possiblity, this type of
favoritism is wrong and in my opinion unethical.

In my career I have had occassion to arrest police officers for
breaking the law. My general rule of thumb and personal policy with
regard to this uncomfortable situation was, "If my badge is called,
your badge doesn't matter."

The law is the law - Again, ideally, it shouldn't matter if the male
is the Chief of Police or sitting Governor for that matter. Along that
same line of fairness, it shouldn't matter if the woman was pregnant
with quadruplets. If:

a ANY person has a history of violence "and/or" 

the injuries and comparative severity suggest significant violence "and/or"

it would be determined who initiated and who retaliated "and/or"
 
one or both parties expressed fear due to threat "and/or"

one or both parites had a reasonable fear of threat or violence or
future threat or violence...

...it shouldn't matter who or what the parties said, or were, or held
themelves out to be. The law, as written for the good of all, should
be enforced lest the officer himself be at risk of penalty.

tutuzdad-ga

Thank you so very much to Tutuzdad.  Your research and answer did
exceed my expectations.  Am I allowed to add one more point to ponder
with this scenario?  If so, how?  Thank you so very much!

Grammaellen...

As a domestic abuse survivor, and by no means an expert or even a
researcher here on GA, may I ask if the police were involved? It
sounds to me that both parties are pleading *innocent*.

I certainly hope each one has a lawyer and that there is no sign of
"enabling"..EG: allowing this kind of behaviour to continue.

From my own experience, and this is strictly IMO, once this type of
behaviour escalates to this degree, its time to seek help.

I sincerely hope you get an answer or some type of direction.
Physical/emotional abuse in any relationship is a nightmare.

Steph53

The (I presume US, I write from a UK perspective) courts are very
UNlikely to imprison a pregnant woman for one slap on the cheek of an
adult, regardless of who was slapped in what circumstances and what
retaliation there was. I am assuming there is no history of violence
or instability on the woman's part, as that would be taken into
account. I would be surprised if she was even prosecuted. It is often
forgotten that the law exists to protect those who break it as much as
anyone else. If she is at immediate risk she should not hesitate in
calling the police.

The court will look very adversely on a man assaulting a pregnant
woman, and especially in a relationship as the man is often not only
the physically stronger but also often the financially.

The woman would be wise to approach a support group or agency. If this
man is violent towards her once, he can do it again. The sad fact is
that most domestic murders have a prior history of violence.

Owain

Steph53--Thank you for your comment.  I'm glad you're a survivor! 
(Forgive me, what is IMO?)

Owain,

Thank you for your comment, as well.  I appreciate what you had to say.