Domestic violence is painful and difficult for the entire family and has long-lasting impacts on everyone involved. Most domestic abuse cases involve an abuser and one or more victims. But other cases can be complicated, with parties who are accused of harming or threatening each other, or cases in which the abuser actually claims innocence and says the victim is the one abusing them. If you are involved in this kind of situation in New York, there are several important things you need to be aware of.
Mutual Abuse Does Not Exist
The first thing to understand is that, regardless of what actions you may have taken, mutual abuse is not possible. Domestic abuse is about an imbalance of power, which means that the one person with the power controls and abuses the other person who has less power. If you are being abused, it is not possible for you to abuse your abuser.
It is possible for you as a victim to be pushed, tricked, baited, and bullied into taking actions that the abuser might then cite as abuse, but in general, these always fall into two categories:
- Self-defense. If you are cornered into yelling, screaming, shouting at your abuser, or even using force to protect yourself, it is self-defense, not an act of abuse.
- Blame shifting. Abusers look for ways to manipulate their victims into believing they are at fault or they caused the abuse. If you and your partner are arguing and they block your exit from the room, and you push them to get out and away from them, this is not an act of abuse. They created an unsafe and violent situation where you were trapped and then tried to blame you for the result. The abuser created the situation and then tried to blame you for having to react to it.
If you are in a volatile relationship where your partner starts arguments or physical altercations, and you have no choice but to be involved, yet you know it is dangerous and unhealthy and want it to stop and want there to be a change. You are not an abuser, you are a person who needs help. Call 911 if you are in immediate danger or seek help from the New York State Domestic and Sexual Violence Hotline at 1-800-942-6906 or the National Domestic Violence Hotline at 1-800-799-7233.
Mandatory Arrest Rule
When the police are called for a domestic violence situation, they are required to arrest the abuser if:
- A felony is committed
- A family offense is committed, or
- An existing order of protection is violated
The officers are not required to arrest everyone involved in the situation. If you are the victim yet your abuser claims you abused them, it can be complicated for law enforcement to determine what happened. They must determine who is the primary physical aggressor and arrest that person. They must consider:
- Injuries involved and which are more severe
- Any threats made
- Prior history of domestic abuse
- Defensive acts involved
If the police determine that you acted defensively in a way that was justified, no arrest of you is required even if the defensive act is a crime. It’s important to note that the police are permitted to arrest both parties if they believe it is justified.
Domestic Violence Survivors Justice Act
If you were sentenced for a crime and are a victim of domestic violence that contributed to the situation that caused your conviction, New York allows for you to be resentenced if:
- You are currently incarcerated and serving at least eight years for a first or second felony
- The conviction does not involve murder, terrorism, or sex offenses
- Your abuser lived in your home or was a family member or someone you were in an intimate relationship with
- The abuse was a significant contributing factor to the crime
Family Court Cross-Petitions
In addition to criminal remedies, domestic violence cases can alternatively or simultaneously be heard in family court. You need not have an existing divorce or family court case to seek help in family court since domestic violence can be heard as its own matter. It is not uncommon for both parties to file cross-petitions against each other in domestic violence cases, or to file domestic violence petitions as a strategy in an ongoing family court or divorce case. This can be done just as retaliation, to attempt to gain an edge in a custody case, or to muddy the waters about what actually happened in the situation.
If you file a domestic abuse petition, your abuser could counter-file their own petition against you. And if you are in court for a custody case, your abuser could decide to just accuse you of abuse and file a petition for domestic abuse to influence that case. If you have not filed a petition yourself asking for help, they will be the first to file, making it look like they are, in fact, the victim. When you file your own cross-petition, the court may not take it seriously.
Family court judges prefer not to issue mutual orders of protection when possible, but if the court is unsure of what actually happened, a temporary mutual order is seen as a way to protect both parties. It is important to note that mutual orders of protection will often contain provisions about child custody and visitation, and because the parties are not permitted to be near each other at all, ongoing contact with both parents can be difficult to arrange in light of a mutual order of protection. A permanent order is not issued without a hearing, but a judge may suggest that both parties just agree to a mutual order of protection rather than having a hearing to determine who did what to whom.
Dangers of Mutual Orders of Protection
If your abuser also accuses you of domestic violence, it might seem easier to just agree to a mutual temporary order of protection. After all, an order against you simply tells you to stay away from the other person and not commit any act that constitutes domestic violence, which you never did and have no intention to do anyhow. The problem is that agreeing to a mutual order can be seen by the judge as an admission that you did in fact engage in domestic offenses against your abuser. This can result in a permanent order against you.
Once you are under an order of protection, your abuser can falsely report that you have violated it, which can have very serious legal repercussions, including being arrested and being charged with felony or misdemeanor criminal contempt. An abuser who falsely accuses you of domestic abuse is likely to falsely accuse you of violations in the future.
If you agree to a temporary order, the court is more likely to institute a permanent mutual order. Once there is an order of protection on the books, that becomes a piece of evidence should you and your abuser ever get a divorce. It is also a piece of evidence in an ongoing or future child custody case with your abuser.
Agreeing to an order of protection is a warning flag that you are an abusive person, and this can severely damage your ability to obtain custody of your child. It can also be used against you if a child neglect or abuse case is ever filed against you. And having such an order entered against you can be extremely damaging to your brand, career, and public image.
The bottom line is if you are involved in a complex relationship with mutual allegations of abuse, you need a seasoned and experienced lawyer who can fully protect you from your abuser and ensure that you are not subject to an order of protection when you are in fact the victim of the abuse.