Spousal Immunity – The DV Defense

Domestic Violence

One way to defend against domestic violence charges is with the spousal immunity.

Domestic violence is a huge issue in our society and it has become a hot button topic as of late, however, ever charge of domestic violence is not a case with footage of an NFL football player hitting a woman in an elevator. In fact in many domestic violence cases neither party ever planned for the cops to get involved and they don’t want charges filed either way. How these scenarios usually unfold is a couple gets in an argument, and the argument may escalate to the level where neighbors hear the fight and so they call the cops. When the cops show up they investigate everyone involved and one of the parties may say something like “he pushed me” or “she grabbed my arm” or “he said he was going to hurt me while holding a knife.” With these words the officer will possibly arrest one of the individuals for Assault (DV) (DV = domestic violence moniker, which enhances the charge), Criminal Mischief (DV), DV in the Presence of a Child, or Disorderly Conduct (DV).

The DV Defense

Once the prosecutor receives the referral from the police officers charges will be filed and the accused individual will be notified. Obviously as attorneys we would counsel that the accused individual should retain legal counsel at this point in the process. One of the hardest things for people to understand in this type of situation is why they are being charged with this crime when their spouse doesn’t want to “press charges.” The reality of this is that the state has the grounds and authority to bring criminal charges against an individual, no one else does, so its not the alleged victim that is bringing the criminal charges its the state, so even if the spouse doesn’t want the case to proceed it often still does because the state thinks that the law has been broken. That being said there is still an opportunity for the defendant to get a dismissal in these types of cases.

Spousal Immunity

Even though the state doesn’t need the alleged victims approval to continue with the case they do often still need their cooperation to be able to prove that the offense took place. In cases where the alleged victim and the defendant are married the prosecutor cannot force the alleged victim to testify because of what is called the spousal immunity. The spousal immunity is a right that all married persons have that makes it so they cannot be forced to testify against their spouse. If the parties are just dating then this does not apply they must be married. So if the only real evidence the prosecution has is the alleged victims testimony then they often have to dismiss DV cases like this for lack of evidence if the spouse is not willing to testify.

Salt Lake City DV Attorney

If you have been charged with a domestic violence related case, such as assault or criminal mischief then call the attorneys at Salt Lake City Criminal Defense for help. We have helped hundreds of clients in Utah with their DV cases and we can help answer your questions and make sure your rights are protected.

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