Office for the Prevention of Domestic Violence

Information for Professionals

Criminal Justice

Overview of the Issue

Primary Physical Aggressor

What the Current Law Says

The current law, passed 1/12/98, amends paragraph (c) of subdivision 4 of Section 140.10 of the Criminal Procedure Law to effect major changes in how police handle domestic incidents. In addition, the law:

  • prohibits police officers from threatening an arrest for the purpose of discouraging police intervention in domestic violence situations.
  • specifically says that an officer is not required to arrest every family member or household member who may have been involved in a misdemeanor family offense and it stipulates the criteria that the officer must consider when attempting to identify and arrest the primary aggressor. Specifically, when attempting to identify the primary aggressor and deciding if an arrest is appropriate, an officer must consider
    • the comparative extent of any injuries.
    • whether any threats were made,
    • whether any person has a prior history of domestic abuse, and
    • whether the person acted defensively.
  • provides that an officer is not required to make an arrest when the officer reasonably believes that a person's conduct was justified under Article 35 of the Penal Law, Defense of Justification.

Cross Complaints/Primary Aggressor

  • Cross-complaint arrests based solely upon the parties' allegations shall not be made. Where probable cause exists to believe that more than one family or household member has committed a family offense misdemeanor against one or more such members, the following policies shall apply:
  • the officer shall not inquire as to whether the victim seeks an arrest of such person, or
  • threaten the arrest of any person for the purpose of discouraging requests for police intervention.
  • Officers are not required to arrest both or all parties. However, the "primary physical aggressor" shall be arrested. The primary physical aggressor is not necessarily the person who was first to use force. During the officer's investigation to determine who was the primary physical aggressor, the officer shall consider the following:
  • the comparative severity of any injuries inflicted by and between the parties;
  • whether any such person has made threats of future harm against another party or another family or household member;
  • whether any such person has a prior history of domestic violence that the officer can reasonably ascertain;
    Note - When investigating this factor at the scene, the following sources of information may be available: agency records, NYSPIN Registry of Orders of Protection, criminal history, prior acts of violence against others, reports of other officer(s) responding to address for past incidents and statements of neighbors or others in the residence.
  • whether any such person acted defensively to protect himself or herself or a third person from injury.
  • When investigating such a case, the officer shall evaluate each person's complaint separately to determine who was the primary physical aggressor. The officer shall not base a decision to arrest or not to arrest on the willingness of a person to testify or otherwise participate in a judicial proceeding.
  • The arrest of the primary physical aggressor does not prohibit the officer from arresting both or all parties. If more than one arrest is made, a separate Domestic Incident Report (DIR) shall be filed for each victim and each DIR shall cross reference the other.

Determining Probable Cause and Primary Physical Aggressor

An officer should make reasonable effort to identify, and arrest the primary aggressor in a domestic incident. The following are guides in determining probable cause and primary physical aggressor:

  • Fear: Who talks and acts scared?
  • Body Language: Who displays an aggressive stance? Consider the physical size of the parties as a factor, though not the only one?
  • History of Abuse: Consider past medical records, 911 tapes, police reports, shelter stays, and Order of Protections. Examine the paper trail.
  • Neighbors and Witnesses: Consider prior and typical behavior.
  • Excited Utterances: Statements of adults and children blurted out at the scene while they are still upset.
  • Injuries: Who is injured, and are the injuries defensive or offensive?
  • Crime Scene: Observe smashed furniture, empty liquor bottles or beer cans.

When responding to a domestic incident, law enforcement officers shall NOT:

  • Threaten, suggest, or otherwise indicate the possible arrest of all parties to discourage requests for intervention by law enforcement by any party.
  • Base the decision to arrest on:
  • The specific consent/request of the victim.
  • The willingness of a victim of or witness to domestic or family violence to testify or otherwise participate in judicial proceeding.

In addition to any other report required, law enforcement officers who do not make an arrest after investigating a complaint of domestic or family violence or who arrest two or more persons for a crime involving domestic or family violence, shall submit a written report setting forth the grounds for not arresting or for arresting both parties.