Can my husband be charged with domestic violence against my wishes if the violence was against me?

Question

Long story short, we had a fight, I hit him, he hit me back instantly not thinking. He was charged with felony domestic violence. I didn't tell the police that day I hit him, but he did. The police asked me what I wanted to happen I told them nothing, they arrested anyways. I later filled out a statement with what happened and the prosecutor told me even though I hit him first the charges stand. The victim's advocate asked what I want to happen and I told her charges dropped or changed to a misdemeanor. They stand as a felony, even after the prosecuting attorney asked me the same thing. Is there anything I can do to get the charges changed or dropped? Can I refuse to testify even if I'm subpoenaed? I do not wish for him to be in trouble because of something I started, and told the prosecutor that. I told her I'd much rather have charges against me instead as I did instigate the incident.

Joan Durkin · Answer

Yes.

Thomas Edward Gates · Answer

Yes.

Jared Altman · Answer

All I can really say is that without a witness or a confession. I don't forsee a conviction.

Daniel J. Pingelton · Answer

He needs to hire an experienced attorney who will know exactly how to handle this.

James Schoenberger · Answer

In WA when law enforcement is called to a DV scene, somebody has to go to jail, that's the law. 

Charging decisions are made by the prosecutor's office.  The state is the plaintiff in any criminal action, not you so your wishes are not necessarily going to result in dropping the charges.  

Sounds like he has a self-defense defense and you should write to the prosecutor informing him/her that you struck him first. The prosecutor will then re-review the case and may dismiss the charges.

Gregory Crain · Answer

Refuse to testify.

Mark R. Thiessen · Answer

Yes.  The DA is there to protect you and can still prosecute against your wishes.  You can try and plead the fifth.  He needs to hire a good attorney that can fight this and help you not testify.

Steven Fairlie · Answer

You should speak to a good lawyer about the details of your case and how your county handles this situation.  

You cannot be held in contempt if you don't remember what happened, but here it sounds like you do remember.  

If you refuse to testify you could be found in contempt of the subpeona they will likely issue.

James Osak · Answer

You cannot "take back" a police report once filed. You could be charged with filing a false police report. Think about that the next time you file one.

Francis Cowhig · Answer

First of all, who originally contacted the police. You need to speak face-to-face to an attorney.  Once an arrest is made, it is at the District Attorney's discretion to continue prosecution or drop charges.  

If you are subpoenaed you must appear in court on the date on the subpoena notice. Even though you started the fight, the fact that he hit you will, most likely, go against him.

Jared Winter · Answer

You have already done everything you can do.  Only the DA can decide whether they are going to drop charges or not.  Your situation is common to most DV cases... husband/wife fight, husband gets arrested, wife later changes mind and doesn't want husband prosecuted.  Because this happens all the time, most DAs are unwilling to dismiss the charges unless they absolutely have to.  If you have been PERSONALLY served with a subpoena (i.e., it has been handed to you, not mailed or left on your door) then you must go to court and testify or a warrant for your arrest will issue.  If you go to court, but refuse to testify, you may be held in contempt.  Ordinarily, you cannot be compelled to testify against your spouse, but the rule doesn't apply if you are the alleged victim of a crime.

Mark Smith · Answer

Yes the city/town police bring the charges. There may be a situation   wherein they cannotuse your testimony.

Michael J. Breczinski · Answer

There is something more that I do not understand.  There has to be furhter facts as to why it is a felony rather than a misdemeanor.  I would need all the facts in order to properly answer this question.

Thomas Tomko · Answer

You should hire an attorney to review this situation.  You also could consider talking to the attorney for your husband.  There are a number of ways that the prosecutor could continue with the case against your husband against your wishes.  There are also a number of ways that you could avoid testifying.  I hope that this was helpful.

Dennis Roberts · Answer

Talk to his lawyer.  You should really get your own lawyer but I bet husband  would pay for it in this situation after you talk to his lawyer.  If you didn't  tell the cops you hit him first it would not be in the police report.  So if you  testified the way the police report read you could be charged with filing a  false police report.  If you testify to the truth they could prosecute you for  perjury.  The cops and DA will never listen to the victim in this situation.    YOu need a lawyer to intercede with them on your behalf.  If the facts are as  you stated them you should refuse to testify and take the 5th amendment.   Without your testimony they have no case.  Years ago if you refused to testify  they could always put the cop on the stand but the USSC decided a case called  Crawford which says they can't do that as the defendant (hubby) has a right to  confront and cross examine the witnesses against him and he can only cross  examine you - because the cop wasn't there.  Anyhow, get yourself a lawyer but  first tell hubby's lawyer the situation.

Russell Pietryga · Answer

Yes, he can be charged.  However, without your testimony, it will be almost impossible to prove.  Lastly, the subpoena must be lawful.  That means you have to be personally served.  Hope this helps.

Jennifer Leigh Gottschalk · Answer

In order for your husband to be convicted of the act of domestic violence, you will have to testify.  You have a constitutional right not to testify, in so far as you also committed a criminal offense by initiating the fight by hitting him.  I would caution you, though, that if this is not the first time you and your husband have fought and gotten the police involved, you are continuing to put yourself at risk.  That is what the prosecutor and police are concerned about.  Both you and your husband have a right to have a marriage that is free from physical violence.  If you cannot achieve that, you should think about splitting up.

Jeff Yeh · Answer

Absolutely. Your wishes mean nothing to the prosecutor, who cares only about conviction stats.

Leonard A. Kaanta · Answer

Yes, because the crime was against the "peace and dignity of the People of the State of Michigan."

Edward Blum · Answer

You need to contact your own lawyer. The DA and the cop are not going to help you.

Michael Palumbo · Answer

Domestic violence laws are in place to protect people like you who cannot protect themselves. If he is charged with a felony believe me he must have messed you up. He needs to be prosecuted and no you cannot stop it.

Gary Russell · Answer

Under the Michigan domestic violence law, the prosecutor has the authority to proceed with the charge even if the victim does not wish to proceed.  I am not clear why your husband is charged with felony dometic violence.  Does he have prior convictions for domestic violence?  Were you injured or is there some other aggravating factor that has enhanced the charge?  Finally, if you fail to appear in court after being subpoenaed, a warrant can be issued for your arrest and you could face contempt of court charges for failure to honor the order of the court.

Jason Savela · Answer

Yes, those are charges by the state, not by you.  You each need an attorney.  Stop talking with the DA, police and victim advocacy - they will not help you get what you want.  If your H has an attorney, talk with him.  Your H has a self defense claim, but if his response punch was significant enough, it is possible that the amount of force used by him in self defense was unreasonable.    You have the ability to assert the right not to incriminate yourself (the fifth), but the court can grant you immunity and force you to testify.  You need to discuss with an attorney.  You could be charged with false reporting and 3rd degree assault on your husband.

Gregory Casale · Answer

Unfortunately, once the police are called, it is out of the hands of the victim as to whether or not to prosecute. I handle these cases all the time and get them dismissed outright about 99% of the time. Your instincts are right, you will have to refuse to testify and assert your Constitutional rights to do so. The ADA may try to force you to cooperate and they do have a few tools to use. If you change your story, they can charge you with filing a false police report.  You can try this on your own, but typically I get called after people have already tried on their own, unsuccessfully, to get the charges dropped. The risk you run is that if you do or say the wrong thing between now and when you run out of options, then your husband could end up as one of the 1% that does not get the charges dropped. Do not lie to anyone, but also do not say anything that will incriminate you or your husband. That is difficult to do as a Victim/Witness.  Your lawyer can say all sorts of things that are not going to be used as testimony and therefore evidence. You do not have that privilege. If you can afford to, hire a lawyer, preferably someone who is familiar with the court where your husband is charged. You need someone who knows the ADAs and judges in that court and knows what is necessary to get the charges dropped. Good luck.

Thomas Ogas · Answer

You can't get the charges dropped.  The DA alone has that power.  All you can do is make it clear what your wishes are and then stand by your principles.  You may refuse to testify on the grounds that you will incriminate yourself, then the DA will give you immunity and you will still have to testify.  Of course, if you hit him first and instigated the whole thing, and you testify to that, he may end up being acquitted at trial.  And since you will have been given immunity, you cannot be prosecuted either.

Matthew Kober · Answer

You can invoke spousal privilege and refuse to testify.  However, it is possible that they could use the statement that you gave to the police as testimony.   Ideally, you should not have given the statement to the police.   You should find an attorney to represent you and tell the prosecutor you intend to invoke spousal privilege and not testify.

Terry Nelson · Answer

CAN my husband be charged?  Yes.  He has been.    When the police are called for a domestic disturbance, they don't leave without taking someone away in handcuffs.  The DA will prosecute over the victim's objection and pleas.  That's policy.  You've already been told all of that.    His attorney will try to use your testimony to get a plea bargain or win at trial.  Cooperate with him.    He needs an attorney.

Charles E. Clos · Answer

You need help.  There is no excuse for a man hitting you and if the charges are dropped he will do it again.  You are the victim not him.

Benjamin Gordon · Answer

You can refuse to testify.  There is something called the spousal privilege, which makes it so one spouse cannot be compelled to testify against another.  Tell the prosecutor that you intend to invoke the spousal privilege.

James Edward Smith · Answer

You can only requuest a dismissal but don't ignore a subpoena or you could go to jail.

David Ayer · Answer

Yes. You should consult with a criminal defense attorney before making any more statements to anyone. It is likely the matter would be dropped if you refused to testify, but your statement to the police could be enough for the prosecutor to move forward. In a criminal case, it is the state which brings the claim against the accused. The victim of the crime has no power to stop the proceeding. Speak with an attorney before you do anything further to ensure not only your husband's best interest is met, but that you are not opening yourself up to criminal liability.

Dennis P. Mikko · Answer

Yes, he can be charged even though you don't want any charges brought.  The decision to bring criminal charges is solely within the discretion of the prosecuting attorney.  While the prosecutor will have a harder time proving the charge beyond a reasonable doubt it is not uncommon for charges to be filed even if the victim does not want charges brought.

Jason Richards · Answer

Criminal charges are brought by the State, so yes, the charges still stand. It is the State's decision as to whether or not criminal charges will be filed or pursued.   It sounds like your your best option is to testify on your husband's behalf at a preliminary hearing, so that the judge will dismiss the case.

Michael Lynch · Answer

The decision to file charges or not to file charges is solely with the  District Attorney.  While a victim might not want charges to to filed  they cannot have the case dismissed on their own.  That being said,  often the victim is also the prime or even sole witness.  While a  properly subpoenaed witness is compelled to appear, such an appearance  does not necessarily mean they will be cooperative.  Often if a witness  makes it clear to the DA they do not wish the defendant to be prosecuted  the DA will be hesitant to make a victim out of the victim once again.   As a witness you have a right to be represented.  Contact and consult  with an attorney before speaking with the DA.

Stephen Freeborn · Answer

Domestic violence is generally a gross misdemeanor.  The fact that he is being charged with a felony, leads me to two conclusions:  you were hurt pretty bad when he hit you, OR your husband has a prior criminal history of domestic violence.  If either of these is the case, I imagine that the prosecutor is adamant about pursuing the case.  The fact that you said nothing to the police about you starting the fight - until well after the fact  does not bode well for you, because it may appear that you are changing your story to protect him.  Without knowing the facts of the case or reviewing the police reports, I have no way of  knowing what defenses might be available to your husband.              As far as your refusal to testify, I suppose you could refuse to do so, but what other evidence is there against your husband?   including what you may have told the officers the night your husband was arrested. If you told them something that night and are now changing your testimony, that could be used against both you and him in a trial.  If he has a prior history (especially if it involved you).

John Bussman · Answer

Yes, your husband can and will be charged against your wishes. The victims in domestic violence cases ALWAYS want the charges dropped, but the DA will pursue them with or without your cooperation.  When your husband hits you, he commits a crime against the People of the State of California, not just against you.

Nathaniel Shafer · Answer

You can invoke your spousal privilege to refuse to testify in your husband's trial. It doesn't guarantee that the charges will be dropped, but it will leave the state with less evidence if they can't use your statements. Tell the prosecutor that you intend to invoke your spousal privilege and the prosecutor is more likely to drop the case.

Robert De Groot · Answer

The only thing you can do at this stage is hire an aggressive criminal defense attorney. If you do not testify the cop who spoke to you that day can say what you said.

Bruce Arthur Plesser · Answer

Hard to prosecute with uncooperative witness.  Go to trial.

Steven Alpers · Answer

You can refuse to testify against your husband and you cannot be punished. The state does not want to put husband against wife when you are together so several years ago they got rid of the possibilty of holding you in contempt.  It would be better if you have your own attorney  to push this issue.

John Patrick Yetter · Answer

Yes.  Criminal s not like civil, where there are individual parties to a complaint.  In criminal law the plaintiff is the People of the State of Illinois.

Austin Hirschhorn · Answer

As you have learned, the prosecuting attorney's office reviews the police write-up and makes the decision as to who will be charged with a crime and what the charge should be.  This is what they do for a living every day. Even though you might not be pleased with the charge you have to go along with it or run the risk that if something bad happens to you in the future that is caused by your husband the police might ignore it.  There is probably nothing that you can do to get the charges dropped.  If you are subpoenaed and refuse to testify, the judge that is trying the case could find you in contempt of court and put you in jail for your refusal.  My own recommendation is that you should testify truthfully if the case is tried and let the chips fall where they may fall.  It is possible that during the pre-trial process which goes on in every case that the prosecutor handling the case may enter into a plea bargain with your husband and his attorney that you will find acceptable.  There are several unstated facts that might have relevance in your question.  If you and your husband have a prior history of fighting that could have influenced the charges.  If you were injured and needed medical treatment that would have entered into what charges were made by the prosecutor.

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Can my husband be charged with domestic violence against my wishes if the violence was against me?

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