Domestic Violence – Reciprocal or Unilateral?

October 2, 2019

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

The overwhelming mentality in family assault prosecution is the violence is always unilateral.  That is, one spouse and one spouse alone is perpetually controlling, manipulative and ultimately physically abusive.  This is the theory of “the cycle of violence.”

I’ve handled hundreds of domestic assault cases and this just isn’t my experience.  The “cycle” is true some times but not nearly as often as most prosecutors believe.  Most cases involve reciprocal violence.

My experience is there is dysfunction which manifests itself by the couple communicating through violence and assaultive actions.  She throws a phone at him one day — he pushes her into a wall the next day.  She gets drunk and hits him with a fist – he punches back.  The person prosecuted might have been the perpetrator that day — but it doesn’t mean the entirety of the relationship circulates around that one person controlling, manipulating and battering the other.  They continually do it to one another.

“The Cycle of Violence”

The theory essentially makes domestic violence unilateral.  One side, and one side alone, is always to blame the for each and every instance of domestic violence — typically the man in a heterosexual relationship.  The theory goes he is controlling, often degrading, manipulative and physically abusive.  This is followed by a honeymoon period of sorrow and remorse but builds back into the explosive rage and violence.

The “Cycle” though, has many blindspots.  For instance there is no consideration of mental health issues or even for basic self defense situations.

The “cycle of violence” does have some of merit.  The problem is the degree of belief and trust some prosecutors put in this theory.  What prosecutors don’t know about a couple — they might fill in with conjecture often related to their “cycle” theory.

Here’s an example:  In a assault/ family violence case the complaining witness does not return the prosecutor’s phone calls.  Plugging in the generic ‘cycle of violence,’ many prosecutors assume the reason is because the batterer is in control of ‘victim,’ or that the ‘victim’ wants to help the batterer because she can’t stand up for him/herself.

Reciprocal Domestic Violence

Academic studies support my observations in my practice.  In one study, it shows reciprocal violence is far more common than unilateral — and that it is most commonly the female that is the aggressor.  The idea the male is typically the aggressor has been shown to be stereotypical and false.

Whether you believe spouses beating up one another is reciprocal or not — the truth is we simply don’t know and that all couples develop their own unique mini-culture.

*Jeremy Rosenthal is Certified in Criminal Law by the Texas Board of Legal Specialization.

 

 

 


False Report to Peace Officer In Domestic Assault Cases

August 10, 2010

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

www.thecollincountylawyer.com

It is illegal in Texas for a person to make a false report to a peace officer or a law enforcement employee.  Texas Penal Code 37.08 is the governing statute.  That provision states,

“(a)  A person commits an offense if, with intent to deceive, he knowingly makes a false statement that is material to a criminal investigation and makes the statement to:

“(1)  a peace officer conducting the investigation; or

“(2)  any employee of a law enforcement agency that is authorized by the agency to conduct the investigation and that the actor knows is conducting the investigation.

“(b)  In this section, “law enforcement agency” has the meaning assigned by Article 59.01, Code of Criminal Procedure.

“(c)  An offense under this section is a Class B misdemeanor.

A common situation where this law comes into play is in assault/ family violence cases.  Often, alleged victims of an assault will seek to retract or deny having made a previous statement to law enforcement.  In those situations, they could actually be exposing themselves to criminal liability for making a false statement.

It is not uncommon in assault/ family violence situations for alleged victims to seek counsel of their own (not the same attorney representing their spouse charged with assault) if they retract their original statement or admit under oath that their original statement was false.  The alleged victim has important rights in this scenario as well and a lawyer can help protect them from incurring legal liability themselves in these cases.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article should be considered legal advice.  For specific legal advice for any specific situation you should directly consult an attorney.


Can They Make Me Testify Against My Husband/ Wife?

May 2, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

In Texas the prosecution can and will force one spouse to testify against another — often against their will.  I am often asked in disbelief in assault cases “can they really do this?”  Unfortunately the answer is, “yes.”

Texas Rule of Evidence 504 governs the husband-wife privilege.  Generally speaking, any communication made to one’s spouse is privileged under that rule during and even after the marriage.  Either spouse may assert the privilege whether they are a party to a case or not.  Unfortunately, the husband-wife privilege is riddled with far more exceptions than other privileges (such as the attorney-client privilege).

Tex.R.Evid. 504(a)(4)(D) is just one of the specific exceptions to this rule of privilege.  That rule states a spouse can be compelled to testify against their other spouse if that spouse is considered the victim of the crime or if any other member of the household or any minor child.

Additionally, it is important to note that in some cases, the testimony attempted to be compelled out of the “victim” spouse is not regarding communication but regarding conduct.  Obviously the privilege in and of itself only applies to “communications” in the first place.  The privilege, therefore, cannot be used to prevent disclosure of facts surrounding an incident where family violence has been alleged.

The state in assault cases must still prove their case beyond all reasonable doubt.  Jurors are very sensitive to situations where it is clear one spouse does not want to testify against the other and don’t always appreciate the police and/or the state being overly-invasive of a family… so even where a spouse is compelled to testify against their will — the cases can and do frequently result in acquittals.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article should be considered legal advice.  For legal advice about any situation you should always directly consult an attorney.