Police officers responding to a reported domestic violence incident involving LGBTQ individuals may arrest the wrong person, make assumptions about who is guilty based on appearance, or not properly identify the aggressor.
Most domestic violence awareness focuses on heterosexual couples, but same-sex couples can also experience domestic violence or have a partner falsely accuse the other of assault.
If you are a LGBTQ person and have been accused of committing a domestic violence crime in Washington, you need a knowledgeable attorney who is truly understands the issues and concerns of LGBTQ individuals and same-sex relationships. The attorney should also have the experience to navigate Washington's complex domestic violence legal system.
Domestic Violence Law in Washington
Under the Revised Code of Washington (RCW) 26.50.010, domestic violence involves any of the following between family members or household members:
- Physical harm,
- Bodily injury,
- Infliction of fear of imminent physical harm or injury,
- Sexual assault, or
Who is Subject to Domestic Violence Laws in Washington?
The domestic violence laws refer to family or household members. Same-sex spouses and partners are included in this definition. The definition of family or household members in Washington is broad and can include:
- Spouses and domestic partners,
- Former spouses and former domestic partners,
- Persons who have a child in common regardless of whether they have been married or have lived together at any time,
- Adults related by blood or marriage,
- Adults who are presently residing together or who have resided together in the past,
- Those who are in or who had a dating relationship, and
- Those who have a biological or legal parent-child relationship, including stepparents and stepchildren and grandparents and grandchildren.
A "dating relationship" generally refers to individuals 16 years old or older who have a social relationship of a romantic nature. Whether someone is considered to be in a dating relationship for the purpose of domestic violence charges may depend on the length of time the relationship existed, the frequency of interaction, and the nature of the relationship.
Example: Alex and Michael connected online and met up with each other at a bar. They spent the night together at Michael's apartment. The next day, Michael would not respond to Alex's calls or messages.
Alex showed up at Michael's apartment and they got into a fight. Michael shoved Alex, who then called the police. In this case, Michael may be charged with assault but he would not likely be charged with domestic violence because they do not appear to be in a dating relationship.
Domestic Violence Laws Are Supposed to Apply Equally to All in Washington State
The domestic violence statutes in Washington are supposed to apply equally to people, including LGTBQ persons, who are in:
- a dating relationship,
- a marriage, or
- a domestic partnership.
"The terms spouse, marriage, marital, husband, wife, widow, widower, next of kin, and family shall be interpreted as applying equally to state registered domestic partnerships or individuals in state registered domestic partnerships as well as to marital relationships and married persons." RCW 10.99.901
Unfortunately, not all individuals are treated equally when it comes to domestic violence calls. Police officers, prosecutors, jurors, and judges can have prejudices about what they think an abuser or victim looks like. Because domestic violence is usually presumed to be a male aggressor against a female victim, identifying aggressors in same-sex domestic violence may be confusing. This is why you need a vigilant criminal defense attorney who understands domestic violence prosecutions and the challenges you face as an LGBTQ person and will fight to make sure your rights are defended in court.
Domestic Violence and Mandatory Arrest in Washington State
Washington law gives the police the power to make arrests without a warrant under certain circumstances, including domestic violence calls. Under RCW 10.31.100, a police officer shall arrest and take into custody a person when the officer has probable cause to believe the person has assaulted a family or household member within the preceding four hours.
If the officer believes individuals have assaulted each other, the officer only has to arrest the person whom the officer believes to be the primary physical aggressor, based on:
- The intent to protect victims of domestic violence under the law;
- The comparative extent of injuries inflicted or serious threats creating fear of physical injury; and
- The history of domestic violence of each person involved, including whether the conduct was part of an ongoing pattern of abuse.
This leaves a lot of discretion for the officer making the arrest. A mandatory arrest does not mean the police arrested the right person or even that anyone should have been arrested in the first place. In same-sex partnerships, the police may make the mistake of arresting the person who fits certain stereotypes even if that person was not the aggressor.
Even if the police arrested the wrong person, the law gives the officers immunity for arresting the wrong person if the officer acted in good faith and without malice.
These improper arrests in same-sex domestic violence calls often lead innocent people down the frightening and confusing path of having to defend themselves against something they did not do.
Mistaken Arrests Can Still Lead to Prosecution
After someone is improperly arrested for domestic violence, the prosecutor can still take the case to court even if the alleged victim says the accused was innocent.
It may seem bizarre to someone accused of a crime that when the alleged victim admits to lying about the assault, the innocent defendant can still face criminal charges. The prosecutor has the power to take the case to court even if the victim recants or admits to being the primary physical aggressor.
In same-sex couple domestic violence cases, the prosecutor may choose to prosecute a person – even if the wrong person – due to his or her presumptions based on the prejudices of the arresting officers or his or her own prejudices based on the appearance of the arrestee.
An attorney competent in working with same-sex domestic violence charges can more easily identify the prejudices and vigilantly protect their LGBTQ client.
Pleading Guilty When Innocent
Most people do not understand why someone would plead guilty to a crime if that person is innocent. However, when faced with the possibility of serious criminal penalties, including expensive fines and jail time, taking a plea deal may seem like the best option.
Do not take a plea deal before talking to an experienced Washington criminal defense lawyer who is competent in both domestic violence and understands LGBTQ individuals and same-sex relationships. There may be a number of defenses available in your case. There may also be ways to challenge the evidence in court.
Defending Same-Sex Domestic Violence Charges in Washington
If you have been charged with a domestic violence crime in Washington State, you need an experienced attorney who understands the issues facing LGBTQ defendants accused of domestic violence. We have years of experience advocating for individuals in the LGBTQ community. We know how to advocate for you and build a strong defense to fight a criminal conviction.
Each individual domestic violence case is different and deserves the individual attention of an experienced domestic violence criminal defense lawyer. If you are accused of domestic violence in Seattle or King County, Washington, you need an attorney who can navigate the domestic violence court system and understands the issues facing LGBTQ defendants.
Contact Burke Brown Attorneys, PLLC today for the best defense possible. Call us today at 206-933-2414 or contact us online.