You see, though, her boyfriend had been calling her names for years.  He would slap her around whenever he felt like it and cheated on her constantly.  He once gave her a black eye.  

She had been too scared to the call the police.   She was afraid the police would take their baby away from her if she called.  She was afraid that her boyfriend would punish her, hit her more, if she called the police.  She really did not want her boyfriend to go to jail, as he was the main income-earner in their relationship. 

But, that night, when her boyfriend yelled at her, calling her all the horrible expletives, and told her he was taking their 2 year old child to his mother’s house, she had had enough.  And, she pushed him.  She pushed him hard.  She pushed her boyfriend in front of her child.  

The boyfriend calls the police on her.  He tells the police she pushed him, he has red marks to prove she hit him.  He tells the police their baby came between them and yet she still pushed him.  The police ask her what happened and she says – “Yes, I pushed him!”   She explains her side of the story, the history of their relationship, what she has endured.  

The police arrest her.  Law enforcement put handcuffs on her.  They put her in their patrol vehicle.  They take her into custody where she waits to post bail. 

Domestic violence can be tricky,  It is not black and white.  In order for the District Attorney to establish misdemeanor domestic violence, a violation of Penal Code 243(e)(1), they need to show: 

1) The defendant willfully and unlawfully touched the “victim” in a harmful or offensive manner, AND, 

2) The victim is the defendant’s (former) spouse/cohabitant, fiancé, person with whom the defendant currently has, or previously had a dating relationship with, AND, 

3) The defendant did not act in self-defense. 

In the story above, she fits the description of what a violation of 243(e)(1).  She touched, “hit,” a person she was in a relationship with and was not acting in self-defense.  Even though she was abused physically and emotionally in the past, she was not acting in self-defense when she hit her boyfriend when he called her expletives and was taking their child to his mother’s.  

So what does one do in this situation, when in reality, they were actually a victim of repeat domestic violence and they finally pushed back, literally, to stop their abusive spouse from doing things to them they disliked?

There are a lot of ways to work with these set of facts.  For example, explaining to the District Attorney the cycle of violence, providing mitigation and fact specific timelines showing the defendant was never the initial aggressor in the past.  Trying to work with the DA to not even charge the case.  If there are family law records that show poor behavior on the aggressor-partner, provide those to the DA to show the history in their relationship.  And, the defendant can go to to therapy and take classes to show the DA she is working on boundaries/anti-violence to ensure this would not happen again.  

The process can be daunting and an attorney can help.

***The story depicts the “she” as the victim, though, it is understood that he, they, or them, can be a victim as well.