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Posted on August 3, 2017 in Domestic Violence
Dozens of domestic violence restraining orders are filed every day. Some of them are absolutely necessary in order to protect innocent people from violent perpetrators. However, there are times when both parties are equally at fault in a fight turned physical, and sometimes person claiming to be the victim is actually the instigator.
In my career, I have seen this situation many times. My client is facing a domestic violence restraining order, and maybe the allegations are not false. However, the allegations are not the whole story, and it comes out in court that the other party actually threw the first object, or took the first swing, or made the first threatening gesture. When this type of evidence comes to light in the courtroom, the judge may view the incident as an act of self-defense, rather than an act of domestic violence.
The mutual combat theory as a defense to a domestic violence restraining order has gained popularity in recent years. Judges have begun to look at the whole picture when a claim of domestic violence is made, especially if there is evidence that the “victim” claiming the domestic violence, was actually the instigator of the incident.
A new case from the CA Appellate court, In Re Marriage Of Grissom, is the most recent of a history of cases addressing this theory of mutual combat in defending against a domestic violence restraining order. In the Grissom case, Husband was facing a domestic violence restraining order when Wife claimed that Husband had bruised her in a physical altercation. During trial, Husband presented evidence that Wife had initiated the aggression by attempting to destroy Husband’s laptop and cell phone, and assaulting Husband when he tried to retrieve his property and stop Wife from destroying them. Husband testified that Wife’s bruises were as a result of his attempting to protect himself from her assaults.
The court, in this case, believed Husband, and denied Wife’s request for a domestic violence restraining order, stating that “a victim of physical aggression may employ reasonable force to defend his or her person or property against the aggressor, even when such reasonable force causes some bodily injury to the aggressor.” In this case, the court denied Wife’s restraining order based on the whole story that Wife instigated the altercation by assaulting Husband first, and Husband only used the force that was necessary to protect himself.
If you have been served with a domestic violence restraining order involving an incident that was instigated or escalated by your spouse, the court should be made aware of the actions that created that incident. You may be able to defend against a domestic violence restraining order using the theory of mutual combat when you were not the instigator of the incident but were merely acting in an attempt to defend yourself against your spouse’s aggressions.