Lawyers Manual - Unified Court System

174 Lisa Fischel-Wolovick
Primary Aggressor Amendment
An increase in incidents in which the victim of domestic violence is arrested
emerged as an unintended consequence of the New York State Legislature’s
passage of the Family Protection and Domestic Violence Act of 1994. 14
The real possibility that the victim will be arrested is disturbing for a number
of reasons. A wrongful arrest helps create a climate in which victims become
reluctant to call the police again. 15 In terms of community safety, the arrest of the
wrong party means that the violence will continue, creating an atmosphere in
which entire families become at risk for greater and greater injury.
As more and more states passed mandatory arrest laws in an effort to
combat domestic violence, many found it essential to adopt primary aggressor
laws. Among those states were Washington, Rhode Island, Wisconsin, South
Dakota, Iowa, Arizona, Nevada, Oregon, Tennessee, Florida and New York. 16
The Primary Physical Aggressor Law, which modified Section 140.10 (c) of
the Criminal Procedure Law, provided essential guidelines that helped arresting
officers and prosecutors determine who was the individual primarily responsible
for the violence. 17 The Amendment states in pertinent part:
An officer shall attempt to identify and arrest the primary
physical aggressor after considering: (i) the comparative extent
of any injuries inflicted (ii) whether any such person is
threatening or has threatened future harm against another party
or another family or household member; (iii) whether any such
person has a prior history of domestic violence that the officer
can reasonably ascertain; and (iv) whether any such person acted
defensively to protect himself or herself from injury. The officer
shall evaluate each complaint separately to determine who is the
primary physical aggressor and shall not base the decision to
arrest on the willingness of a person to testify.” 18
Law enforcement can utilize a number of methods to determine whether
there is a history of domestic violence. One relatively easy way is to check the
central registry of existing orders of protection. Also, the victim may have in her
possession domestic incident reports documenting prior incidents of abuse or
orders of protection - even expired ones. Of course, a few simple questions
directed at the victim, her children, or her neighbors when the batterer is not
present may elicit a detailed account of past violence.
Law enforcement training has been cited as a key factor in reducing victim