20

First time I've ever called the authorities on my husband for Domestic Violence. He was arrested, however, I didn't press any charges, will it still be on his record?

  • 21
    When you say first time you've called, it seems its not the first time it happened. You should speak to a victim witness advocate if you're having second thoughts. It's important as these situations rarely get better. – gracey209 Sep 8 '15 at 18:24
  • 22
    I realize this is your personal life and I'm not meaning to be intrusive with this comment, but just as a side note, if it happens again, you made the wrong decision. I spent 10 years of my life under severe physical abuse from other male members of my family. I called the cops, retracted statements to get them off time and time again. Instead of lessons being learned and finding life getting better, I found myself in hospitals. Trust me on this. – user900 Sep 8 '15 at 18:58
  • 14
    Agreeing with the last two commenters. You crossed a line with that, an act that can't be taken back, and he's going to remember that. He's already a violent person, and that's not going to change--trust me on this. Now he's a violent person who knows you're capable of retaliating, and that means that he escalates. The next time, he's going to take measures to ensure that you can't retaliate. Unfortunately, this really only ends two ways: with you dead or with him out of your life for good. You need to do everything in your power to make sure you get the latter ending. – Mason Wheeler Sep 8 '15 at 19:27
  • 4
    Thanks so much for the comments and consideration. I will definitely speak with an advocate! – LOSTinNEWYORK Sep 8 '15 at 19:30
30

The victim of domestic violence is referred to as the complaining witness. Domestic violence arrests will result in a criminal investigation. It is not up to the complaining witness to determine if charges are brought against the one who was arrested - this is up to the prosecutor.

Here is a good article at Findlaw that discusses the process.

If the complaining witness recants, the prosecutor may decide to drop the charges. The prosecutor may, though, decide to continue the charges and prosecute the case. The complaining witness in recanting may face charges as well - for example, for making a false police report.

If the prosecutor presses the case and your husband is convicted then, yes, it will be on his record.

Seeking the advice of a New York attorney who specializes in these matters is the best course of action.

EDIT: Here is additional information regarding New York Criminal History Records:

New York State law does specify that, unless the court orders otherwise, arrest records are sealed when criminal actions are terminated in favor of the accused - dismissed, found not guilty, etc. This is spelled out in Criminal Procedure Law 160.50.

Arrest records are part of the public record until disposition of the case is completed.

At New York State's Court web site, you can read about how to get criminal records of anyone - they are public record so anyone can make a request about anyone. There is a fee of $65. Records can be ordered online and the results can be emailed to you. Searches are processed by an exact match of name and date of birth.

From their web site you will see that criminal cases transferred or removed to Family Court are not reported. Neither are records for people who had a single misdemeanor conviction over ten years ago or pending criminal cases categorized as Youthful Offender Eligible.

Generally speaking, New York criminal cases are part of the public record and are available to anyone unless they meet certain criteria or have been sealed under New York State law.

Note that sealing records doesn't mean the record goes away. It just means that the record is not available to the general public without a court order unsealing the record.

Here is the link to on-line direct access to records requests: http://www.nycourts.gov/APPS/chrs/onlinedirectaccess.shtml

  • Aren't arrests themselves a matter of public record? – feetwet Sep 9 '15 at 1:43
  • They are generally open to the public unless they are part of an active investigation. Some states restrict what's available for people never charged, acquitted or had records expunged. See: rcfp.org/private-eyes/arrest-records – Dave D Sep 9 '15 at 1:46
  • 3
    Generally a good answer, but one nitpick: I don't see where this actually answers the question, namely "will the arrest be on record". The answer looks like only a conviction will be on record, which I think is wrong. Maybe you could edit to address this? – sleske Sep 9 '15 at 11:57
  • 2
    I added additional information regarding New York State records. – Dave D Sep 9 '15 at 14:04
  • 2
    Just to add, if the cops witness it happening or have evidence of it happening it doesn't matter if you press charges or not because they can. – Dave Kanter Sep 9 '15 at 20:56
20

Yes he can still have a record if he is convicted and yes, they can still go forward if the victim asks to withdraw the complaint. The victim to a crime (any crime, DV especially) can be subpoenaed to testify even if they don't want to. And you're under oath in the event of a trial, subject to the penalties of perjury. You also cannot mislead the police or DA's investigators in their investigation.

To this extent, the State takes the place of the victim in all criminal matters. That is why you see "State v. John Doe", not "Jane v. John Doe", in all criminal matters.

This is a very typical question by women who are the victims of domestic abuse. They often want it to stop at the moment but then feel bad, or feel he will change, or feel guilty, so they try to "drop the charges" only to find out that they aren't the ones who've filed the charges in the first place. @Dave D is right in that you are merely the victim (complaining) witness.

In some states, they will do as the victim asks of them if the batterer submits to anti-domestic violence/anger management counseling. In other states they move forward no matter what, and I have even seen them threaten a woman who said she wouldn't testify with false reporting . (This is an awful thing to put an already fragile, emotionally and physically abused women through, but it has happened).

A battered woman does have the ability to drop any restraining order, but if he's arrested there is one in place as part of the terms of release anyway, and only a court can amend it.

The state has a duty to protect the public (his future victims, as well as the current one) from criminal behavior by seeking a conviction if the facts justify it. Also, with the advent of the battered women's defense to homicide of their batterer, they often feel duty bound to pursue these cases.

When a victim asks the case be dropped, it will almost always depend on the severity. If you had a tiny mark on your arm and called the police because you were scared then there is a chance they'd drop it. In cases of severe injury or Felony Domestic Violence, no way.

  • 5
    Isn't a spouse protected from being required to testify against his/her spouse? – Joe Sep 8 '15 at 19:00
  • 11
    No. Both spousal privileges ( the one against marital communications and the one protecting spouses from testifying against each other), are specifically excepted in cases of domestic violence in every jurisdiction that I know of. Further, the wife cannot assert the privilege only the defendant can. And again, there are specific exceptions barring a spouse accused of battery or domestic violence against the other spouse from asserting it. – gracey209 Sep 8 '15 at 19:35
  • 2
    @Dan Neely No. One spouse may just be a witness from which the prosecution is trying to elicit testimony. The analysis differs in civil actions. This query is an example. The victim witness is not under investigation. The Defendant could assert the privilege, not the witness, and then the Judge would indicate the exception allowing the subpoena to stand. – gracey209 Sep 8 '15 at 19:45
  • 3
    @gracey209: Interesting. At least in Germany, the right not to testify against people close to you is not limited in any way, and also applies to domestic violence ("Zeugnisverweigerungsrecht der Angehörigen des Beschuldigten", §52 Strafprozeßordnung). Of course this is a privilege, not a duty, so the spouse is free to testify if they want to - they just cannot be compelled to testify (unlike an "ordinary" witness). Anyway, the situation seems to be different in the US, and between different states. – sleske Sep 9 '15 at 11:43
  • 2
    @gracey209 the aggressor can not prevent the victim from testifying (by law). I don't know how exactly this works in the US, but the "Zeugnisverweigerungsrecht" is a privilege not of the defendant but of the witness. The witness can decide not to talk if he/she is a spouse/parent/child. etc. of the defendant. The witness can equally well decide to talk to the court. The defendant has no say in that matter, legally. – Josef Sep 9 '15 at 14:35
3

YES! Everything against you an be dug up nowadays no matter how long ago and even if charges were dismissed. I was falsely accused of DV by a former live-in girlfriend, the charges were dropped in a hearing, but a dozen years later a detective investigating me after defamation by an ex-step-daughter brought it up as a factor in perceptions of me.

  • 1
    AFAIK, there is often a difference between stuff on your criminal record accessible to members of the public, and stuff in internal police records. – cpast Sep 9 '15 at 6:15
  • This is in part because "on his record" is a bit vague. If a newspaper article is written about the arrest, than that article and whatever it reports might be "on record" forever, and easily accessible to everyone let alone a detective, regardless of the merits or the outcome of the arrest. But if "his record" means "his formal criminal record" then the newspaper has nothing to do with that. – Steve Jessop Sep 9 '15 at 12:27
  • She may have gotten a restraining order? That will show up even if you don't get convicted. It's almost quasi-criminal in its background check implications. – gracey209 Sep 9 '15 at 12:33
  • Also, when you say used against you - you mean as far as character testimony? It cannot be used to impeach your credibility. This sounds like a civil matter anyway, so its different, but if you open the door by testifying that you are a certain type of person in establishing your character, that can be rebutted by other witnesses. It's up to the judge if it comes in, but typically if you open the door it's rebuttal. – gracey209 Sep 9 '15 at 12:58

protected by jimsug Sep 9 '15 at 7:05

Thank you for your interest in this question. Because it has attracted low-quality or spam answers that had to be removed, posting an answer now requires 10 reputation on this site (the association bonus does not count).

Would you like to answer one of these unanswered questions instead?

Not the answer you're looking for? Browse other questions tagged or ask your own question.