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  • Writer's pictureDavid A. Cmelik Law PLC

Iowa Criminal Lawyer explains domestic abuse assault defense

Sometimes officers make mistakes and arrest the victim for intimate partner violence in Cedar Rapids, Iowa, domestic abuse assault investigations and prosecutions.


In an Iowa criminal investigation for domestic abuse assault, law enforcement officers must quickly assess the situation to determine the primary aggressor. In doing so, they are not supposed to re-victimize the victim of the domestic assault by arresting that person instead, or, in addition to, the primary aggressor.


Pursuant to Iowa Code § 708.2A and, by reference, Iowa Code § 236.2, the law in Iowa penalizes domestic abuse assault differently than assault between persons without a domestic relationship. In Iowa, domestic assault occurs (1) between family or household members who lived together at the time of the assault; (2) between separated spouses or persons divorced from each other and not living together at the time of the assault; (3) between parents of the same minor child regardless of marital status or whether they are living together at any time; (4) between persons who have been family or household members living together within the last year but not living together at the time of the assault.


Frequently, domestic assaults are charged when two persons who are in an intimate relationship or have had contact within the past year are involved in an alleged assault. A list of nonexclusive factors officers, prosecutors, judges, and juries use to determine the existence of an intimate relationship are as follows:


(a) The duration of the relationship.

(b) The frequency of interaction.

(c) Whether the relationship has been terminated.

(d) The nature of the relationship, characterized by either party’s expectation of sexual

or romantic involvement.


The hard part for officers is typically not determining the existence of an intimate relationship. In many cases, both parties acknowledge the relationship and in some cases, such as in a marriage or a familial relationship, it is impossible to deny.


However, the issue is typically who the “primary aggressor” is in a domestic relationship. The Code requires a peace officer to arrest the “primary physical aggressor.” Duty to arrest “extends only to those persons involved who are believed to have committed an assault.” However, persons acting with justification are not subject to mandatory arrest.


The problem comes in identifying the primary physical aggressor. The Code suggests guidelines for the determination including “the need to protect victims” and the “relative degree of injury or fear inflicted on the persons involved. Officers may consider any history of domestic abuse between the persons involved. The consent of a party to be labeled a primary aggressor is not, however, a factor under Iowa law. For example, if someone "confesses" to the assault in an act of self-sacrifice to protect the actual primary aggressor, the officer is responsible for seeing through that and also has Iowa code guidance at to reject such a claim. They do not always do so.

Nor should law enforcement officers be dissuaded an assault has occurred in the absence of a visible injury or the presence of a formal, legal relationship, like marriage. The law on domestic assault has evolved over time but continues to be a struggle against societal acceptance of some forms of spousal abuse. For example, the law was written to prohibit law enforcement officers from trivializing a "lover's quarrel" or a "marital spat," by merely giving the participants "a good talking to" without making the requisite arrest of the primary aggressor. It hasn't really been that long ago that domestic abuse was a punch line, no pun intended, in sitcom television-- for example, when Ralph tells Alice in a signature laugh line on The Honeymooners that he is going to punch in her "right in the kisser" to send her "to the moon," when she "gets [him] riled up."


The definition of a primary aggressor, however, implies the existence of a secondary aggressor. The law appears to excuse the secondary aggressor or, as the Code puts it, “persons acting with justification are not subject to mandatory arrest.” Moreover, while a jury trial judge might exclude from evidence so-called “prior bad acts” evidence like a defendant’s previous assault on the same alleged victim, officers can consider the so-called “history” of domestic assault between persons involved to make a charging decision. This bakes prior bad acts into the domestic abuse charging decision.


If you have been arrested, appeared before the court, and released for domestic abuse assault in Cedar Rapids, Iowa, or other Iowa community, it’s time to seek the advice of a competent Iowa criminal defense attorney. David Cmelik has 21 years of Iowa criminal law experience with over 5,000 Iowa criminal cases completed. Contact us.


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