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Law Educator, Esq.
Law Educator, Esq., Lawyer
Category: Criminal Law
Satisfied Customers: 117460
Experience:  Attorney with over 20 years law enforcement, prosecution, civil rights and defense experience
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In a domestic violence case presented to a police officer by

Customer Question

In a domestic violence case presented to a police officer by a man claiming to be harassed / stalked by an abundance of emails from his ex-girlfriend, but also where there has been zero physical violence or threats used, is there case precedent pointing to the duty of a domestic violence arrest to mandate an officer interviewing BOTH parties. In this case, the man's word was taken and an arrest was made, but had the officer taken a moment to interview the woman, he would have been informed of her legitimate reason for sending these emails - she was requesting a single father to stop abusing pills and alcohol while driving / caring for his children, and her duty of care for these children, while not rising to the level of a state mandated reporter, was legitimate as he placed the children in her care for several hours on a daily basis over the course of months.
Submitted: 1 year ago.
Category: Criminal Law
Customer: replied 1 year ago.
This was a warrantless arrest. When the officer called the woman on a Sunday - ONE phone call - in which he informed her no matter what she said an arrest was occurring - (this came with not a single warning call which is usually protocol in instances of harassment between intimates where there has been no violence) the woman and her attorney informed the officer of her legitimate reason for emailing the gentleman. These also informed the officer another alarming factor was the man's refusal to respond to her concerns regarding his substance abuse, but ALSO because she had found STD medication in his apartment and she was worried he had exposed her to a sexually transmitted disease. Alas there is no criminal recourse in the justice system for the silent treatment, but in this case the man's refusal to answer seems more criminal than the woman's conduct of questioning. Shockingly the criminal case was written up, the woman was arrested, and there was not a single word mentioned with respect to any of this exculpatory information. While it is a realistic, unavoidable fact that officers often make arrests and write up criminal complaints without including exculpatory factors they had in their knowledge, I am still asking if there is any case precedent where officers HAVE been held to this higher standard, and if there are any arrest procedure laws which would the woman in stating her defense.
Customer: replied 1 year ago.
Posted by JustAnswer at customer's request) Hello. I would like to request the following Expert Service(s) from you: Live Phone Call. Let me know if you need more information, or send me the service offer(s) so we can proceed.
Expert:  Zoey_ JD replied 1 year ago.

Hello,

It seems to me I've answered something along these lines before for you. Were you looking for a second opinion? If so, let me know and I'll opt out.

Customer: replied 1 year ago.
please!
Expert:  Zoey_ JD replied 1 year ago.

Okay. Will do.

Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.
I am a DIFFERENT CONTRIBUTOR.
In a case of alleged domestic violence, the police do not have to give any warning call, that is something that is discretionary to the investigating officer. The officer merely needs evidence supporting the allegations of the harassment (such as showing the text messages or phone calls) and the police could decide there is sufficient probable cause to arrest based on that information they are observing.
The reason the police write these up and charge the alleged defendant is because they want to be absolved of any accusations of liability in case the situation escalates. They send them to the DA to deal with so that the DA can evaluate the parties and that places any liability on the head of the DA or the Court and not the police department as they are extremely cautious about any types of possible domestic violence, such as harassment or stalking which generally seem to escalate over time.
Did you have a legitimate reason to contact him, yes, to find out about a potential danger to your health, but this is something you need to prove to the court because the police do not want the liability for making that decision.
Customer: replied 1 year ago.
Thank you - yes I had a very legitimate reason. Can you provide me pls with case precedent where a court deems legitimate reason?
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your reply.
First of all, case precedent would not help you, because good cause can be 1000's of reasons and just because one case finds good cause in that case does not mean it will even remotely apply to your case. Not everything, contrary to what people seem to think is in case law or even statutes, it is interpretations of law by lower courts which do not even get reported into case decisions.
What is good cause is based on what you can prove, the need to try to find out if you were at risk of an STD and if you needed to go get examined or treated. That is a legitimate reason to try to contact him several times, but if you sent more than several messages he did not reply to, his failure to reply is his intent to not communicate with you which he has every right to refuse to do.
Customer: replied 1 year ago.
Aren't there laws in New York mandating some level of duty of care or legal duty to inform? Instead of responding, he ignored my polite reach outs, falsely accused my building manager that I had someone's keys to an apartment and had trespassed (bizarre and untrue, and management let me know, but did not chastise me as the accusation was impossible and there are cameras throughout the building. Are there affirmative defenses in NY penal code for defending one's body and property?
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your reply.
There are a****** defenses to an imminent attack, sure it is called self defense, but that is not a defense to harassment and stalking.
It is a misdemeanor for a person who knows that he or she is infected with a sexually transmitted disease (STD) to have sexual intercourse with another person. See: N.Y. Pub. H**** Law § 2***. He has to know he is currently infected and then having intercourse with you would be a criminal offense.
Again, your charge comes from not just sending a few text messages or making a few calls about this, you said you sent numerous messages and did not stop when you got no response and that is the problem, the excessive contact.

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