What does “primary aggressor” mean in a SC domestic violence case? 

Suppose your husband has been drinking, he starts an argument with you, he knocks you down and you can’t get up, so you start punching him until he lets you up? The neighbors hear the ruckus and call the police, and, when the police arrive, they see marks and scratches on your husband where you hit him? 

He attacked you first, but now he’s the one with marks on him and now he is saying that you attacked him… 

Who goes to jail? 

Although many people (and some police officers) don’t realize it, SC law requires an officer to determine who the primary aggressor was before making an arrest – they should not arrest both parties and, if they do, the court can dismiss the charges against the person who was not the primary aggressor… 

What is a “Primary Aggressor” in a Domestic Violence Case?

When police are called to a domestic violence incident and both parties make a complaint, the responding officer is required to determine who the primary aggressor was and then only charge that person – SC Code Section 16-25-70(D) says “the officer must not arrest the other person:”

(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.

How does the officer determine who the primary aggressor was? The law says that the officer should consider any factors that they think are relevant, including:

  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.

But what happens when police don’t determine the primary aggressor? 

Can Police Threaten to Arrest Both Parties in a Domestic Violence Incident? 

I have seen cases where an officer arrived on the scene after a domestic violence call and told the parties, “if we take one of you to jail, we have to take both of you.” 

Is that true? Why would an officer say that? 

One possible reason is that the officer just doesn’t want to arrest someone – by threatening to arrest both parties, they know the victim will not press charges, and the officer will not have to make an arrest, transport someone to the jail, follow through with the paperwork, and appear in court to prosecute the case… 

SC law expressly prohibits officers from doing this:

(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.

Although the law prohibits it, there is usually no remedy for a violation. 

If the domestic violence victim does not want to press charges against the primary aggressor because the officer threatened to take the victim to jail, his or her only recourse is to file a complaint with the police department, which 1) is not likely, because the officer already threatened to arrest him or her and they will fear retaliation, and 2) most people understand that the complaint process is a joke and the department will almost always side with and protect their police officer. 

But what about when an officer does arrest both parties without determining who the primary aggressor was? 

Can the Court Dismiss Charges Against the Person Who was Not the Primary Aggressor? 

The responding officer on a domestic violence call is required to make a determination as to who the primary aggressor was, and, if they arrest both parties, they are required to include the grounds for arresting each person in their incident report:

(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.

So, what happens if the officer arrests both parties and either 1) does not include a statement as to who the primary aggressor was or 2) reports that he or she is “unable to make a determination based upon the evidence available at the time of arrest?”

When the officer does not make the determination and two or more people were charged, your attorney can ask the court to make the determination:

(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.

The court should schedule a hearing before your trial begins, hear evidence, and, if the court agrees that the other party was the primary aggressor, dismiss your charges

Domestic Violence Defense Attorneys in Myrtle Beach, SC

If you have been arrested and charged with domestic violence when you were the victim of domestic violence but the officer charged both parties, we may be able to ask the court for a hearing to determine who the primary aggressor was and get your case dismissed. 

If you or someone you love has been charged with domestic violence in SC, call the domestic violence defense lawyers at Coastal Law now at (843) 488-5000 or send us a message online to find out how we can help.

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