What Is a Primary Aggressor?
The Concept of the Primary Aggressor in Nevada Domestic Violence Cases
In Nevada, law enforcement officers responding to domestic violence incidents must quickly determine the nature of the conflict and identify who is primarily responsible for any physical violence or harm. This person is referred to as the primary aggressor. Identifying the primary aggressor is a critical decision that directly impacts who gets arrested and charged with Battery Domestic Violence (BDV). The concept of a primary aggressor is essential for ensuring that the person who initiated or escalated the violence is held accountable, even in situations where both parties may have used force.
This page explains the legal definition of a primary aggressor under Nevada law, how law enforcement identifies the primary aggressor during domestic violence incidents, and how this determination affects a domestic violence arrest. When you are dealing with questions such as this, it is important to have an experienced Las Vegas Battery Domestic Violence lawyer to walk you through the critical elements and stages of these serious charges.
Definition of a Primary Aggressor in Nevada
The term primary aggressor refers to the person who is determined to be the most responsible for the violence in a domestic dispute. Nevada law, specifically Nevada Revised Statute (NRS) 171.137, requires law enforcement officers to identify the primary aggressor when responding to domestic violence calls. The primary aggressor is the person who either initiated the violence or escalated the situation to the point where physical harm occurred.
Importantly, the primary aggressor is not always the person who used the most force or caused the most harm. Instead, officers must consider the totality of the circumstances to determine which party bears the greatest responsibility for the conflict.
Factors Law Enforcement Uses to Identify the Primary Aggressor
When responding to a domestic violence incident, law enforcement officers in Nevada are required to make a quick and informed decision about who the primary aggressor is. This is often challenging because domestic disputes can be chaotic, and both parties may claim to have acted in self-defense. To help officers make this determination, NRS 171.137 outlines several factors that they should consider:
Who Initiated the Violence?
One of the most critical factors in identifying the primary aggressor is determining who initiated the physical violence. If one party clearly started the altercation, they are likely to be deemed the primary aggressor. This includes considering any prior history of violence between the individuals involved.
Relative Strength and Size of the Parties
The relative size and strength of the parties involved may also be considered. For example, if one party is significantly stronger or more physically imposing than the other, and they used that physical advantage to cause harm, they may be identified as the primary aggressor.
Who Escalated the Situation?
Officers look at the actions of both parties to determine who escalated the conflict. If one person used force after the other had stopped or attempted to de-escalate the situation, the person who continued the violence may be considered the primary aggressor.
Defensive Injuries
Officers are trained to look for defensive injuries—such as bruises or scratches on the arms, hands, or face—that may indicate one party was defending themselves rather than initiating violence. If one person has clear defensive wounds, they are less likely to be identified as the primary aggressor.
The Severity of Injuries
While not always determinative, the severity of the injuries sustained by each party can play a role in identifying the primary aggressor. If one person inflicted much more significant harm than the other, especially if it was disproportionate to any perceived threat, they may be deemed the primary aggressor.
History of Domestic Violence
Officers may also consider whether either party has a history of domestic violence. If one person has a record of past domestic violence incidents, this can influence the officer's decision to identify them as the primary aggressor.
Witness Statements
If there are witnesses to the incident—such as neighbors, friends, or children—law enforcement will take their statements into account. These statements can help officers determine who initiated or escalated the violence.
Evidence of Coercion or Control
In some domestic violence cases, one party may use coercion or control over the other, which can lead to violence. For example, one partner may have a history of dominating or controlling the other through intimidation, threats, or manipulation. In such cases, the person exerting control may be identified as the primary aggressor.
The Importance of Determining the Primary Aggressor in Domestic Violence Arrests
The identification of the primary aggressor is a critical step in domestic violence cases because it directly influences who gets arrested. Nevada law mandates mandatory arrest in domestic violence cases if law enforcement officers have probable cause to believe that a battery occurred. However, officers are tasked with determining which party is most responsible for the violence before making an arrest.
In some cases, both parties may have used physical force. For instance, if both individuals were involved in a physical altercation, but one acted in self-defense while the other initiated the violence, the person who started the fight may be arrested as the primary aggressor. On the other hand, if it is unclear who initiated the violence or if the situation involves mutual combat, officers may arrest both parties.
However, arresting both individuals is typically seen as a last resort, as Nevada law seeks to identify the primary aggressor to avoid penalizing victims who acted in self-defense.
Consequences of Being Identified as the Primary Aggressor
If you are identified as the primary aggressor in a domestic violence incident, you will likely be arrested and charged with Battery Domestic Violence. The consequences of a BDV conviction in Nevada can be severe, including:
Mandatory Jail Time: Even for a first offense, a domestic battery conviction carries mandatory jail time, ranging from 2 days to 6 months.
Fines: You may be required to pay fines of $200 to $1,000, depending on the severity of the offense.
Community Service: Convictions typically include 48 to 120 hours of community service.
Mandatory Counseling: You will be required to complete a domestic violence counseling program, which may last 6 to 12 months.
Firearm Restrictions: Conviction for BDV results in the loss of your right to possess firearms under federal law.
Long-Term Criminal Record: A domestic battery conviction cannot be sealed from your record for 7 years, which can impact your ability to find employment, secure housing, or maintain professional licenses.
For individuals facing a second or third offense, the penalties become even more severe, with second offenses requiring 10 days to 6 months in jail and third offenses being classified as felonies, carrying 1 to 5 years in state prison.
Defending Against Primary Aggressor Allegations
Being identified as the primary aggressor in a domestic violence case does not automatically mean you will be convicted. There are several defenses that may apply, including:
Self-Defense: If you acted to protect yourself or others from harm, this can be a valid defense. The presence of defensive injuries or evidence of prior abuse may support a self-defense claim.
False Allegations: In some cases, one party may make false allegations to gain an advantage in custody disputes, divorces, or other personal matters. An experienced attorney can investigate these claims and expose any inconsistencies.
Mutual Combat: If both parties were equally responsible for the violence, your attorney may argue that the situation involved mutual combat rather than one person acting as the primary aggressor.
Why You Need an Experienced Defense Attorney
If you have been arrested and charged with battery domestic violence as the primary aggressor, it's essential to have an experienced defense attorney on your side. Josh Tomsheck, a nationally board-certified criminal trial attorney, has successfully defended numerous clients against domestic violence charges, helping them avoid jail time, fines, and long-term consequences. With his background as a former Chief Deputy District Attorney, Josh understands the complexities of Nevada's domestic violence laws and can help build a strong defense tailored to your situation.
If you have been accused of being the primary aggressor in a domestic violence incident, you need a skilled defense attorney to protect your rights and future. Contact the law firm of Hofland & Tomsheck today to schedule a consultation with Josh Tomsheck and learn how he can help defend you against these serious charges.
