The concept of blame is an understandably sensitive issue in domestic violence cases, but it is integral to the issuance and continuation of restraining orders. While victims are certainly encouraged to obtain restraining orders against their attackers, the courts do need to hear from both sides in order to determine what actually happened, and whether it merits an order of protection for the plaintiff. To issue out and continue an order with zero regard for the defendant would be to follow a policy of “he said, she said”, as opposed to making a fair and legal determination.
In addition to sorting out the whether or not the defendant attacked the plaintiff, the presiding judge may need to consider whether or not the incident occurred as as result of the plaintiff's own actions. This is a highly contentious issue, because it can come off as victim blaming, or implying that there are situations in which domestic violence is justified. Provocation, however, simply refers to behaviors or action that may have contributed to an altercation. It does not place blame, nor does it make concessions for abuse under any circumstance. It should also be noted that the provocation must be violent, meaning that it was extreme enough to provoke the altercation. Yelling and taunting, for example, are forms of non-violent provocation, from which a reasonable person would, and should walk away.
Specific acts of violent provocation are not listed in the statutes, so determining its presence in each case is up to the judge's discretion. It's also important to note that violent provocation is usually a factor in domestic violence cases involving criminal mischief, i.e., causing damage to another person's property. Of course, property damage is quite common in domestic violence cases, but extreme behaviors such as kicking down a door or smashing a car windshield with a baseball bat could be acts of criminal mischief that a judge would interpret as violent provocation.
Even with violent provocation, it's essential to examine the altercation that occurred as a direct result. It is of utmost importance to remember that heinous acts of domestic violence, such as murder, sexual assault and terroristic threats are generally not justifiable under any circumstance. Most cases concerning violent provocation involves the defendant damaging the plaintiff's property as a result of the plaintiff damaging their property first. In those situations, the judge may decide that the plaintiff committed an act of violent provocation, which initiated or provoked the defendant's actions. A judge may also consider numerous other factors such as the defendant's prior criminal history, it any, whether the defendant's reaction was out of proportion with the plaintiff's, and whether the defendant's reaction was impulsive and reactionary, rather than delayed or premeditated.
The issue of violent provocation illustrates the complex nature of domestic violence cases, for both the victims and the alleged attackers. For more information on New Jersey's domestic violence laws and legal actions, please speak with the attorneys of Villani & DeLuca, P.C.
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