Defending domestic violence or domestic assault can be difficult because the statutory defenses of intoxication, duress, entrapment, ignorance or mistake of fact, and insanity usually do not apply to general domestic assaults. Insanity can be used as a defense but the court has to deem the defendant insane after lengthy and rigorous mental evaluations. This is usually done in Circuit Court and not at the General Sessions level where most domestic assaults are handled.
Many times, a domestic assault will be dismissed if there was mutual combat and both of the parties were arrested for domestic assault. For example, if you are arguing with your spouse and the police are called and cannot determine who the primary aggressor is; chances are that both people will be arrested. Many of these cases are dismissed because the prosecution is aware that neither person will testify against each other, and if both parties hire attorneys, the prosecutor cannot interview the person without their attorney being present.
Self-defense is frequently used in court; however, in cases where the accused is a big man and the victim is a small woman, it is difficult to persuade a judge or prosecutor that the accused was acting in self-defense. One key to self-defense is to determine who was the primary aggressor.
However, the best way to defend a domestic assault charge is to do damage control. Many times, domestic violence is manifested by underlying causes such as drug and alcohol use or anger management issues. If you have been arrested for domestic assault and at the time of the incident you were under the influence of drugs and/or alcohol, it is best to begin seeking treatment for these issues before you appear in court. Enrolling in a program can help the prosecutor understand that you are willing to take steps to prevent such incidents from happening again and may get you a better plea bargain offer from the prosecutor. If this is not your first domestic assault, you may want to enroll in a batterers' intervention program or domestic violence class before you appear in court for your trial date. This is a great way to demonstrate to the prosecutor that you are aware of the problems but you are serious about getting help. This may get you a more empathetic view from the prosecutor and you may be able to avoid a conviction. The batterers' intervention programs are typically 26-week programs and are not just anger management courses. Tennessee has many programs that are state certified so check with your attorney for a list of these programs in your area.
Some domestic assaults happen because one person simply wants to be vindictive, and it usually happens when the parties are divorcing or breaking up. If this is your situation, make your attorney aware of your divorce or separation. This information can help your attorney persuade the prosecutor that the arrest was unwarranted.
For more information contact May & McKinney, PLLC by calling (615) 265-6383 or fill out the contact form on the website.