When Defending Yourself Brings Domestic Violence Charges
Posted By: Jacob Martinez
Colorado law recognizes your right to protect your person, your property, and other people when unlawfully threatened. Unfortunately, while self-defense is a lawful and perfectly understandable instinct, proving that you were acting out of self-defense in court is an incredibly difficult task.
In Colorado, the laws determining whether you acted in self-defense are not hard and fast ones, since many judges have differing views on what it means to protect yourself. If you use physical force to defend yourself, you can still find yourself charged with domestic violence.
Domestic Violence versus Self-Defense
Colorado law defines domestic violence as any act, attempted act, or threatened act of violence, harassment, coercion, or stalking that occurs between individuals who are or have been in an intimate relationship, such as a spouse, romantic partner, or roommate.
Alternatively, self-defense is defined as the use of force to defend yourself or another when you have reasonable cause to believe that the aggressor will or already has used force against you or another.
So how do courts distinguish between the two? Generally, judges and juries will look to the following criteria to determine whether domestic violence or self-defense has occurred:
Immediate danger. In order to qualify as self-defense, you must prove that you were or believed you were in immediate danger of being harmed, killed, or touched unlawfully.
Amount of force. The amount of physical force you are lawfully allowed to use in self-defense must be what is reasonably necessary given the circumstances. For instance, you may have difficulty proving physically restraining a person who is much smaller than you was necessary in self-defense.
Rationality of response. Similarly, it is only legal to protect yourself against an abuser under very specific circumstances. You may not lawfully respond to a threat in a way that is irrational or overly dangerous, even if you are in immediate danger.
Protecting Your Right to Self-Defense
Let’s imagine you and your partner are in an argument. Things get out of hand, and you physically restrain your partner after he or she threatens you with a knife. A neighbor hears the commotion and calls the police to report a potential domestic violence crime.
What happens next? As soon as police officers arrive on the scene, they are legally required to make an arrest if they have reasonable cause to believe domestic violence has occurred. When deciding whether domestic violence has occurred, police consider the following:
- Evidence of offensive and defensive injuries
- The severity of injuries
- The height and weight of both parties
- Any history of domestic violence behaviors for either party
- Prior convictions of violent crimes
- Any existing protection orders
- Witness testimonies
For most other crimes, Colorado police officers have discretion over when to arrest someone. However, domestic violence cases are unique. Colorado’s mandatory arrest laws require officers to make an immediate arrest if they are summoned and have reasonable cause to believe someone committed an act of domestic violence. Basically, if law enforcement is called and you are accused of domestic violence, there is a very high chance you will be arrested and taken to jail immediately.
While you may not have the power to prevent an arrest, you do have the power to defend yourself. The steps you take preceding your arrest will determine the outcome of your domestic violence case. After your arrest, you should:
Remain silent. Remember that your statement can be turned against you. If you confess to using force—regardless of whether it was in self-defense—you could unintentionally incriminate yourself. Take advantage of your right to remain silent before consulting with your attorney.
Do not contact the victim. After bonding out of jail, it is imperative that you have absolutely no contact with the alleged victim. Texting, calling, emailing, or even answering a phone call from the named victim could get you in serious trouble for violating the terms of your protection order.
Seek medical attention. After an arrest, you should seek medical attention as soon as possible. This is important for health and long-term recovery, but also for your criminal defense strategy. Through seeking medical attention, you can secure documented proof of any injuries you suffered to support your claim that your actions were necessary for self-defense.
Consult with a criminal defense attorney. When defending yourself against a domestic violence charge, it’s crucial to find an attorney who has a history of successfully handling domestic violence cases. A reliable attorney will listen to your side of the story, and help you develop a defense strategy that protects your right to defend yourself and others against attack.
About the Author:
Denver-based criminal defense and DUI attorney Jacob E. Martinez is a knowledgeable and experienced litigator with a record of success providing innovative solutions to clients facing criminal charges of any severity. Mr. Martinez has been designated a Top 100 Trial Lawyer by the National Trial Lawyers and has been awarded both the Avvo Client’s Choice Award and Avvo Top Attorney designation, evidencing his reputation for his exemplary criminal and DUI defense work and high moral standards.