Bogus Domestic Assault Charge

My question involves criminal law for the state of: Washington. Seattle, King County.

This most recent Monday I was arrested for domestic assault against my girlfriend of 3 and a half years. Neither of us called the police, we were arguing, but no one was being hit. There was physical contact made but not-violently.

The breakdown of events were. I had a few drinks, I was singing music. My girlfriend asked me to quiet down and I told her "just let me enjoy myself. why not go to another room?" She said something along the lines of "You never respect me" I went to hug her, which in the past she's asked me to do when she's angry. She pushed me away and I tried to hug her again and she fought a bit and started getting loud. After arguing for awhile she started getting more violent eventually she attempted to hit me. I grabbed her arm and prevented myself from being hit. She started flailing violently which is when I grabbed her other arm and tried to hold her to calm her down (we were on the bed at this point). She starts screaming and knowing her I knew the neighbors would be disturbed. I ended up putting the pillow over her head but didn't apply force to it, just to try to stop her screaming. I kept telling her "If you just stop and calm down I'll let you go, I can't have you hit me or hurt yourself. Please stop." eventually she said the words "you are trying to kill me!" I was appalled and just let her go.

A short time later the police show up, hear part of this story and arrest me for DV.

When I go before the judge for a bail hearing my girlfriend shows up and makes a statement in court, recorded that said something along the lines of. "Your honor, I just want to say that this is a good man. He always protects me and that is all he was trying to do that night. He wasn't trying to hurt me. I was just angry." And some more information.

At this point, she won't testify against me. She even said that she knows I was trying to keep her safe and not trying to hurt her. I have a high chance of going pro se though because I can't afford an attorney but supposedly don't qualify for a public defender.

At this point would it be superior to have her show up and testify positively for me or would they completely drop the case if their only material witness didn't show up at all?

Thank you in advance.

I will also add I have a shining character record, never been arrested, not even a drunk tank for a night. I was a sergeant in the army, served in Iraq, awarded for my leadership and I have a charcter witness who said he would testify for my character who was a soldier under my command.

Any extra advice that I didn't ask for would also be excellent. Thank you.

How is this bogus?

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Quoting cyjeff

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How is this bogus?

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me attempting to stop her from hurting me and herself is not violence. She even said that in court.

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Quoting jeffreyo

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me attempting to stop her from hurting me and herself is not violence. She even said that in court.

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You restrained her, you put your hands upon her and then suffocated her screams with a pillow.

Yeah, that would be DV.

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Quoting cyjeff

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You restrained her, you put your hands upon her and then suffocated her screams with a pillow.

Yeah, that would be DV.

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So what you're saying is you're supposed to let someone hurt you and themselves? I'm pretty sure there is some form of charges they can slap on you for allowing someone to harm themselves.

Second, the pillow was there for one second, the moment it was on she took it off and I didn't touch it again.

The pillow is questionable but restraining someone because they're a threat to you and themselves, how is that DV?

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Quoting jeffreyo

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This most recent Monday I was arrested for domestic assault against my girlfriend of 3 and a half years. Neither of us called the police, we were arguing, but no one was being hit. There was physical contact made but not-violently.

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The key element is not that the contact was VIOLENT, but that it was both intentional and unwanted, and, of course, unjustified.

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I went to hug her, which in the past she's asked me to do when she's angry. She pushed me away and I tried to hug her again and she fought a bit and started getting loud.

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Sounds to me like she shoved you in self defense - she did not want to be "hugged".

Note that the police and DV counselors hear this story a lot, "I just tried to hug her" ... it seems there is a lot of hugging going on out there that is mistaken for something more by the intended recipient.

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After arguing for awhile she started getting more violent eventually she attempted to hit me. I grabbed her arm and prevented myself from being hit. She started flailing violently which is when I grabbed her other arm and tried to hold her to calm her down (we were on the bed at this point).

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Arguably self defense. But, one question that would likely be asked is, "Could you have just walked away?"

And how did you get on to the bed? Did you push her onto the bed? Did she pull YOU onto the bed? I'm guessing that you pushed her onto the bed and pinned her there, but that's a guess and based only on my nearly two decades of experience at this. But, I admit I could be mistaken.

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She starts screaming and knowing her I knew the neighbors would be disturbed. I ended up putting the pillow over her head but didn't apply force to it, just to try to stop her screaming.

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In my state (and most others) we'd call that assault with force likely to cause great bodily injury or death! Or, ADW ... smothering someone, whether you use a lot of force or not, can result in death. people DIE from accidents like that.

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A short time later the police show up, hear part of this story and arrest me for DV.

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I'm not at all surprised.

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When I go before the judge for a bail hearing my girlfriend shows up and makes a statement in court, recorded that said something along the lines of. "Your honor, I just want to say that this is a good man. He always protects me and that is all he was trying to do that night. He wasn't trying to hurt me. I was just angry." And some more information.

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Likewise, I am not surprised. More than 75% of victims will recant their statements within 48 hours, and the numbers are about 85% by the time of any court proceedings. Some victims will go so far as to claim they lied to the police or even commit perjury and thus risk jail in order to protect their abuser. So, I doubt the DA was surprised by this turn of events at the hearing.

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At this point, she won't testify against me.

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If she receives a subpoena, she will not have a choice. They CAN compel her to testify.

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At this point would it be superior to have her show up and testify positively for me or would they completely drop the case if their only material witness didn't show up at all?

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If subpoenaed for court, she should show up and testify TRUTHFULLY, not "positively" for you.

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I will also add I have a shining character record, never been arrested, not even a drunk tank for a night. I was a sergeant in the army, served in Iraq, awarded for my leadership and I have a charcter witness who said he would testify for my character who was a soldier under my command.

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That is all fine and dandy, but not relevant for the offense at hand. Maybe at sentencing if it gets that far, but not for trial.

If you have no priors, you might also be eligible for some form of diversion that could include counseling and probation. Maybe even a dismissal of charges at the conclusion of diversion. I am not certain what might be available in your state, so you may have to do a little research or, better yet, bite the bullet and consult an attorney.


- Carl

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Quoting cdwjava

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The key element is not that the contact was VIOLENT, but that it was both intentional and unwanted, and, of course, unjustified.


Sounds to me like she shoved you in self defense - she did not want to be "hugged".

Note that the police and DV counselors hear this story a lot, "I just tried to hug her" ... it seems there is a lot of hugging going on out there that is mistaken for something more by the intended recipient.


Arguably self defense. But, one question that would likely be asked is, "Could you have just walked away?"

And how did you get on to the bed? Did you push her onto the bed? Did she pull YOU onto the bed? I'm guessing that you pushed her onto the bed and pinned her there, but that's a guess and based only on my nearly two decades of experience at this. But, I admit I could be mistaken.


In my state (and most others) we'd call that assault with force likely to cause great bodily injury or death! Or, ADW ... smothering someone, whether you use a lot of force or not, can result in death. people DIE from accidents like that.


I'm not at all surprised.


Likewise, I am not surprised. More than 75% of victims will recant their statements within 48 hours, and the numbers are about 85% by the time of any court proceedings. Some victims will go so far as to claim they lied to the police or even commit perjury and thus risk jail in order to protect their abuser. So, I doubt the DA was surprised by this turn of events at the hearing.


If she receives a subpoena, she will not have a choice. They CAN compel her to testify.


If subpoenaed for court, she should show up and testify TRUTHFULLY, not "positively" for you.


That is all fine and dandy, but not relevant for the offense at hand. Maybe at sentencing if it gets that far, but not for trial.

If you have no priors, you might also be eligible for some form of diversion that could include counseling and probation. Maybe even a dismissal of charges at the conclusion of diversion. I am not certain what might be available in your state, so you may have to do a little research or, better yet, bite the bullet and consult an attorney.


- Carl

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Your information has both been informative and helpful. I appreciate it. I do have a few questions related to your statements though.

First and foremost my girlfriend is not an english native speaker. She said in court that she didn't understand all the information they were saying but trusted the police and thus signed the statement.

I'm also a little curious about the hugging situation noted at the top. She has asked me in the past to hug her if she was getting upset like that to calm her down. I'm sure she'd say that in front of the court. Would that be able to play into the defense do you think?

I didn't push her on the bed. We were already at the bed and we ended up sitting down while arguing. Admittedly she wasn't laying down until she tried to hit me and I pinned her wrist. We ended up sitting down during the hugging incident which is how we arrived there.

The pillow is of course, my achilles heel. I would ask, if she's not subpoenaed to court and she doesn't show does the DA still have a case against me?

Thanks again for your extremely detailed information. I'm not a violent person and I don't want to have a violent crime on my record (not that I have any crime on my record).

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Quoting jeffreyo

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First and foremost my girlfriend is not an english native speaker. She said in court that she didn't understand all the information they were saying but trusted the police and thus signed the statement.

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That is also something that the state has heard claimed before. Chances are that the officers will be dumbfounded to hear that she did not understand them and will testify that she communicated clearly to them at the time.

But, the defense can certainly paint such a picture should they wish.

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I'm also a little curious about the hugging situation noted at the top. She has asked me in the past to hug her if she was getting upset like that to calm her down. I'm sure she'd say that in front of the court. Would that be able to play into the defense do you think?

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Maybe. But, as I said, this is a very common claim by DV defendants. If she took the stand and supported your allegation, then it would certainly bolster the defense argument. But, regardless, when she said "no" you should have still backed off. And pinning her to the bed (regardless of how you got there to begin with) and putting a pillow over her head!? Yikes!

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The pillow is of course, my achilles heel. I would ask, if she's not subpoenaed to court and she doesn't show does the DA still have a case against me?

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If the DA does not subpoena her to court, he's an idiot. Why wouldn't he?

I am not certain of the status of the law in WA state, but some recent case law would make it very difficult for the state to put into evidence her written statements or recordings if she were available to testify. Now, if she goes on the lam, they might be able to admit those statements. Only an attorney in your state can tell you whether those might be admissible if she goes into hiding.

Next time, take a walk outside. You could have accidentally killed or greatly injured her with that pillow. I have seen people smothered by pillows, and it does NOT take much pressure at all, nor does it take very long. Even had that not been your intent, the end result could have been deadly.

If these events are common place (even if just arguing) then the two of you either need to split, or, you need to get some very serious counseling.

- Carl

I will add to Carl's remarks that anytime an attack includes some element of preventing the victim calling for help, the attack is almost always considered a violent one.

And that preventing someone from seeking help is often and additional criminal charge, in and of itself.

It would be better if she did not testify at all. The prosecuter will try to spin things to show there was 'unwanted touching', no matter how minor, and that's all a jury needs to convict. Check with a lawyer and see if an accord and satisfaction is possible or if there is a way she can refuse to testify based on her incriminating herself.

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Quoting fcel

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It would be better if she did not testify at all. The prosecuter will try to spin things to show there was 'unwanted touching', no matter how minor, and that's all a jury needs to convict. Check with a lawyer and see if an accord and satisfaction is possible or if there is a way she can refuse to testify based on her incriminating herself.

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SHE needs to check with her own attorney if she is afraid of incriminating herself. HIS attorney will, of course, be happy to find every reason int he world for her not to testify as anything that makes her look bad benefits his client.

Most of the time, if the DA wants or needs the victim's testimony, he will make a blanket offer of immunity in exchange for the testimony so that the whole 5th Amendment excuse disappears.

- Carl

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Quoting cdwjava

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SHE needs to check with her own attorney if she is afraid of incriminating herself. HIS attorney will, of course, be happy to find every reason int he world for her not to testify as anything that makes her look bad benefits his client.

Most of the time, if the DA wants or needs the victim's testimony, he will make a blanket offer of immunity in exchange for the testimony so that the whole 5th Amendment excuse disappears.

- Carl

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Right she should be checking with her own attorney. Can a victim refuse that offer of immunity?

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Quoting fcel

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Right she should be checking with her own attorney. Can a victim refuse that offer of immunity?

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She can try, but it sort of takes the wind out of her sails if she tries to claim a 5th Amendment exemption on the stand and there is such a blanket offer in place. If she is not in danger of being prosecuted for pushing him (arguably in self defense), then there is no crime to protect herself from. A judge might then decide to compel her to answer.

A person cannot hide behind the 5th just because they do not want to talk.

But, HIS attorney may be happy to have her try. If she ticks off the judge, his client could prevail and be dismissed while SHE goes to jail for contempt, or, maybe even for making a false report to the police (if she contradicts what she originally told them). I have seen far too many defendants maneuver their victim wives and girlfriends into a position that renders them susceptible to prosecution for perjury or a false report, or, renders their testimony non-credible as a result of the contradictions. It furthers the control of the defendant over the victim, and renders her less capable of protecting herself in the future by establishing a pattern of false statements.

It can be quite insidious, actually.

- Carl

Interesting. Thanks.