- Legislation should require the police to evaluate each claim of violence separately in situations where both parties claim violence. The police must look beyond the visual evidence and consider the context of the act of violence by identifying controlling behavior in the predominant aggressor and fear in the victim.
- Police must be able to recognize the tactics of power and control. They must consider such issues as: the severity of injuries inflicted by each party, the difference in size and weight of the parties, the demeanor of the parties, any prior complaints of violence, claims of self-defense and the likelihood of further injury to a party.
- The determination of the predominant aggressor, and the reasons for that determination, must be included in the police report. Otherwise, offenders will be able to successfully manipulate the system and victims will not be protected. As a result, victims may not contact police the next time violence occurs. (See the Duluth Pocket Card Case Study)
- If the predominant aggressor is misidentified, there could be important legal consequences for the victim, such as the denial of custody of children, of housing rights and of immigration rights. Additionally, without being identified as a victim, a person would not be eligible for shelter or other forms of aid mandated by statute.
The Criminal Domestic Violence law of South Carolina, USA, includes the following provisions on determining the primary aggressor:
(D) If a law enforcement officer receives conflicting complaints of domestic or family violence from two or more household members involving an incident of domestic or family violence, the officer must evaluate each complaint separately to determine who was the primary aggressor. If the officer determines that one person was the primary physical aggressor, the officer must not arrest the other person accused of having committed domestic or family violence. In determining whether a person is the primary aggressor, the officer must consider the following factors and any other factors he considers relevant:
(1) prior complaints of domestic or family violence;
(2) the relative severity of the injuries inflicted on each person taking into account injuries alleged which may not be easily visible at the time of the investigation;
(3) the likelihood of future injury to each person;
(4) whether one of the persons acted in self-defense; and
(5) household member accounts regarding the history of domestic violence.
(E) A law enforcement officer must not threaten, suggest, or otherwise indicate the possible arrest of all parties to discourage a party's requests for intervention by law enforcement.
(F) A law enforcement officer who arrests two or more persons for a crime involving domestic or family violence must include the grounds for arresting both parties in the written incident report, and must include a statement in the report that the officer attempted to determine which party was the primary aggressor pursuant to this section and was unable to make a determination based upon the evidence available at the time of the arrest.
(G) When two or more household members are charged with a crime involving domestic or family violence arising from the same incident and the court finds that one party was the primary aggressor pursuant to this section, the court, if appropriate, may dismiss charges against the other party or parties. Section 16-25-70
(See: Family Violence: A Model State Code Sec 205(B); and Determining the Predominant Aggressor, StopVAW)