Domestic Violence – Defenses

Last Modified: January 27, 2022

Domestic Violence – Defenses


  • We have reconciled
  • Accident
  • False Accusation
  • Insufficient Evidence and Reasonable Doubt
  • Interest of Justice

The following are possible defenses to Domestic Violence charges.


We have reconciled.

Although not strictly a legal defense, the fact that you have reconciled with the alleged victim can have an impact on the outcome of your case. Many cases of domestic violence are conflict between partners – either married, living together, or otherwise in a serious relationship – and in those kinds of relationships, conflict is common. At Summit Defense Attorneys, we see good, hard-working Bay Area couples every week who are over-worked and stressed out about money or their kids.

These kinds of tensions can cause tempers to flare and arguments happen – sometimes people call the police and later regret it, or sometimes neighbors hear a disturbance and call the police. But just because a report has been made to police, or someone has been arrested, does not mean that the relationship between the parties ends. Rather, once they have the chance to cool down and spend a little time apart, people are able to deal with their disagreements more calmly, and in many cases, able to sort things out privately.

But what happens if the police are involved, or charges might be filed? As we have already discussed, the authorities can arrest and file charges, even if the alleged victim does not want them to do so, or later changes their mind. This is where Summit Defense Attorneys can help – when you and your partner have reconciled, you need an attorney that is skilled in dealing with the police and the DA. We have an excellent track record of having charges dropped and cases dismissed. We are skilled at presenting cases in the best light, and will point out to the police or the DA that there would be little use in continuing with the matter when the alleged victim does not want to give evidence against their partner, and when proceeding with the case would only further damage the family.

We can communicate on your behalf, assure the authorities that your reconciliation is genuine, and fight to have charges and any restraining orders dropped, so as you and your partner can move on with your lives without the threat of criminal charges or a restraining order hanging over you.

In many cases that we defend, one of the most important things we do for our clients is to make sure that the Prosecutor has the full story. It is important to remember that the DA usually only has the police report to base their decisions on – but that is really only one part of the story, especially where a relationship is concerned. We often see cases where the couple have had a long, peaceful marriage with no history of violence. They have reconciled after the argument, and they want to continue to work on their relationship. At the time, they were dealing with some kind of extraordinary incident or stress – such as severe financial trouble, or a chronically ill child – and that contributed to the conflict. Situations like this are incredibly sympathetic because we can all imagine how hard it must be to deal with those kinds of problems. When we are able to present all of this mitigating information to the DA, we are often able to persuade them that the incident was a one-off, and that the family would be better served by the charges being withdrawn.


Self Defense

At Summit Defense Attorneys, we have seen many cases where the wrong person has been charged in a domestic violence matter. And in other cases, where there was a mutual struggle and both parties are equally guilty of aggression or making threats. Sometimes the police rush to charge the person who seems angriest when they arrive at the scene, or the person who is bigger, or who is more aggressive towards them. Sometimes the alleged victim lies, but the police believe them and charge the other person. In other cases one person has more apparent injuries than the other, or the man is initially too embarrassed to tell the police about his injuries. So, the police can never really tell the full story, and in many cases someone is charged with a crime when they were only acting to defend themselves.

If you have been unfairly charged when you were actually acting to defend yourself, or to defend someone else, you need to contact an attorney straight away. In many cases, we have been able to bring evidence of self-defense to the attention of the police or DA, which has resulted in matters being dropped at the pre-file stage. Examples of the kinds of situations where we have assisted our clients who acted in self-defense include:

  • Bringing evidence of the victim’s own alcohol or drug use to the attention of the DA, which raises questions about the credibility of their statement, and bolsters our client’s case.
  • Building a case that demonstrates the couple was equally involved in the incident, that is, a case of ‘mutual combat’ where they were both aggressors.
  • Collecting evidence of our own client’s injuries that were not recorded by the police at the scene of the incident, calling into question the completeness of the police evidence, and also supporting our client’s claim to self-defense.
  • Presenting significant mitigating evidence as to our client’s peaceful, non-violent demeanor, versus a history of aggression, bad temper, and violence on the part of the alleged victim.

In other matters, the case will go to trial – and you should have an attorney that is experienced in defending these kinds of matters to properly raise this defense for you in court.


First, the defense of self-defense needs to be raised by the defendant. Then, the court must decide whether the defendant used force against the other person in lawful self-defense, or defense of another. As set out in the Judicial Council of California Criminal Jury Instructions, the law provides that a defendant acted in lawful self-defense if:


  • The defendant reasonably believed that they were in imminent danger of suffering bodily injury or of being touched unlawfully;
  • The defendant reasonably believed that the immediate use of force was necessary to defend against that danger; and
  • The defendant used no more force than was reasonably necessary to defend against that danger.[19]


In deciding whether the defendant’s belief that they were in imminent danger was reasonable, the court must look at all of the circumstances. In domestic violence cases, a history of threats or violence – either towards the defendant, or to others – can be taken into account when assessing whether the defendant responded reasonably. Further, the law does not require defendants to retreat – they can stand their ground and defend themselves.

In the end, once the defense has been raised, the prosecution has the burden of proving beyond reasonable doubt that the defendant did not act in lawful self-defense. Otherwise, the defendant must be found not guilty of the offense.

As you can appreciate, these kinds of issues arise in domestic violence cases frequently. Consider a case involving a married couple. There have been incidents in the past where the husband has hit the wife during arguments, and she has suffered injuries such as swollen and black eyes, bruising, and cuts that has required stitches. One evening, the husband returns home drunk and starts yelling at his wife. He raises his hand to her, is pushing her around, and is threatening to “punch her head in”. The wife runs to the kitchen and the husband follows her. She grabs a bread knife and says that if he comes any closer, she’ll use it. The husband swings at her, and she defends herself with the knife, cutting his hand.

However, it is also easy to see how this is not an ‘open and shut’ case – there are certainly different ways of looking at the facts in this case, and different ways it could be decided. This is why it is imperative to have a skilled criminal defense attorney representing you when raising the issue of self-defense in your case.



In every offense that relates to domestic violence, there is a requirement that the Prosecutor prove that the defendant acted with intent – that is, that the defendant acted violently, or made threats, on purpose. For example, one of the elements of the offense of Penal Code 243(e)(1) domestic battery that the Prosecutor must prove is that the defendant ‘willfully touched the alleged victim in a harmful or offensive manner’. So if what happened was actually an accident, then the defendant must be found not guilty.

For example, it is easy for things to happen that are outside of anyone’s control when people are fighting. We have seen cases where someone throws something in the heat of the moment – a plate, a glass, their mobile phone – with absolutely no intention of hitting the other person, but they are accidentally injured. Another example is when someone is accidentally hurt when their partner slams a door in anger, not realizing that they still had their hand in the way. In all of these kinds of situations, people have lost their tempers and are angry, but they have not acted to hurt the other person on purpose.

Summit Defense Attorneys have defended many cases where our client was charged with an offense for something that was not done intentionally. We recognize that accidents happen, especially when people argue or are in heated situations, and you should not have to pay the price of a criminal charge for something that was not intentional.


False accusations

Maybe the alleged victim has falsely accused you, maybe you didn’t touch or threaten the alleged victim at all, or maybe the police have incorrectly targeted you in their investigation – whatever the case, we will work to clear your name.

Summit Defense Attorneys know from experience that victims do lie, and that innocent people have been falsely accused or wrongly convicted as a result. Sometimes people can be motivated by jealousy over an ex’s new relationship, or false accusations can arise in the course of a divorce or ongoing family disputes – it is a sad fact that some people will lie to get an advantage when it comes to their children, or their own reputation.

Our attorneys have defended several cases where our client’s ex-wife or partner has made false statements about his violence towards her or their children in family law proceedings. Those kinds of lies are not only extremely distressing, but can also leave a parent feeling powerless as they face the prospect of a battle in both the family and the criminal courts to clear their names. The team at Summit Defense Attorneys, however, is expert in properly investigating these kinds of allegations and revealing them for the misleading lies that they are, and to prevent baseless charges from being filed in the first place.


Insufficient evidence and reasonable doubt

One of the most fundamental rules of the criminal law is that the prosecution must prove every element of a charge beyond reasonable doubt. Unfortunately, a lack of evidence does not always stop the authorities from filing charges against someone – this can be even more so in domestic violence matters, where the police often feel compelled to charge someone so they are seen to be taking domestic violence seriously. A lack of evidence, or a lack of evidence strong enough to support a charge beyond reasonable doubt, is one of the most common defenses relied upon. If the evidence being relied upon in your case is not adequate, Summit Defense Attorneys will challenge the prosecution case and make sure that you are not unjustly convicted.

We know how to raise reasonable doubt in your case. For example, the majority of domestic violence cases come down to the word of the alleged victim against the word of the accused – yes, there might be injuries or broken objects, and upset partners, but those things often don’t tell the full story of what has happened in an argument between two people. This can make it easy for one person to lie or embellish in a case.

Our attorneys include ex-police officers and an ex-District Attorney – this experience on the other side means that we know how common it is for charges to be pursued where evidence is weak, or where the case is built only on the word of the alleged victim against the word of the accused. This is why Summit Defense Attorneys will always insist that the prosecution meet their burden of proving any charge beyond reasonable doubt, and will not let baseless charges stand.


Interests of justice

Even in cases where the District Attorney believes they have enough evidence to prosecute, it is within the power of the DA’s office to use their discretion to not proceed. There are various reasons why a DA might be persuaded to drop a case, but Summit Defense Attorneys are skilled in putting together and presenting a case where we are able to convince them it is in the interests of justice to do so. Some of the things that we do for our clients, and to persuade the DA to drop a case, include:

  • Present mitigating factors. This can include information about a significant stress in our client’s life at the time, such as severe financial troubles, chronically ill family members, or the loss of employment.
  • Provide an explanation for the client’s one-time violent behavior, such as the fact that our client had just caught his wife with another man, and was extremely upset.
  • Directing our clients to counselling, anger management, and family therapy and support groups, as appropriate.
  • Present positive character evidence, such as a record of military or community service, and positive references from senior colleagues or community members.
  • Present evidence that demonstrates the disproportionate or unfair impact that a conviction would have in our client’s case, such as in cases where our client’s immigration status would be jeopardized.
  • Inform the DA that the couple have reconciled, that the alleged victim does not want a criminal case to proceed, and the steps that are being taken in the family to deal with conflict in a more positive way in the future.
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