5.1 Domestic Abuse Battery (La. R.S. 14:35.3) & Officer Arrest Duties

5.1 Domestic Abuse Battery (La. R.S. 14:35.3) & Officer Arrest Duties

Domestic violence calls are among the most dangerous and complex situations law enforcement officers encounter. In Louisiana, recognizing the specific legal definitions, statutory requirements, and proper response protocols is critical both for officer safety and for protecting victims. This section covers the foundational elements of Domestic Abuse Battery, the mandatory arrest requirements, the use of protective orders, and how to conduct primary aggressor determinations.

Elements of Domestic Abuse Battery (La. R.S. 14:35.3)

Under Louisiana Revised Statute (La. R.S.) 14:35.3, Domestic Abuse Battery is defined as the intentional use of force or violence committed by one household member or family member upon the person of another household member or family member.

To secure a conviction, the state must prove the following elements:

1. The offender intentionally used force or violence.
2. The force or violence was directed upon the person of the victim.
3. The offender and the victim have a qualifying domestic relationship.

Qualifying Relationships: 'Intimate Partner' and 'Household Member'

A crucial aspect of La. R.S. 14:35.3 is understanding who qualifies under the statute. The law specifically designates protections for individuals based on their relationship to the offender.

• Family Members: Includes spouses, former spouses, parents, children, stepparents, stepchildren, foster parents, and foster children.
• Household Members: Includes any person of the opposite sex presently or formerly living in the same residence with the offender as a spouse, whether married or not. It also includes any child presently or formerly living in the same residence.
• Intimate Partners: Often overlaps with household members but extends to individuals involved in a dating or romantic relationship. Louisiana law takes into account the length of the relationship, the type of relationship, and the frequency of interaction when determining if a dating relationship exists for the purposes of related domestic abuse statutes (like Dating Violence, La. R.S. 14:34.9).

Grading and Penalties

Domestic Abuse Battery penalties escalate based on prior convictions, the presence of children, and the severity of the injury. For instance:

• First Offense: Typically a misdemeanor, but carries mandatory minimum jail time and domestic abuse intervention programs.
• Child Endangerment Law: If a child 13 years of age or younger was present at the residence or any other scene at the time of the offense, the penalties are enhanced significantly.
• Strangulation: Domestic Abuse Battery involving strangulation (impeding breathing or circulation) automatically elevates the charge to a felony.

Officer Arrest Duties (R.S. 46:2140 and C.Cr.P. Art. 213)

Louisiana law prioritizes separating parties and protecting the victim, but it does not create a blanket mandatory arrest for every domestic abuse battery. C.Cr.P. Art. 213 is the warrantless-arrest authority statute—it states when a peace officer may arrest without a warrant. The specific domestic-violence response duties appear primarily in La. R.S. 46:2140.

Under R.S. 46:2140:

• If the abusing party is in violation of a temporary restraining order, injunction, or protective order, the officer shall immediately arrest the abusing party.
• If abuse is present and no protective-order violation applies, the officer shall immediately use all reasonable means to prevent further abuse, including:
  • Arrest under Art. 213 when probable cause exists that a felony has been committed, whether or not in the officer's presence.
  • Arrest for a misdemeanor that endangers the physical safety of the abused person, whether or not in the officer's presence.
  • If there is no cause to believe there is impending danger, arrest for that lesser misdemeanor is at the officer's discretion.

Key Decision Points:

• Protective-order violations: Immediate arrest is mandatory when the abuser is in violation of a qualifying order.
• No 'Victim Preference' veto when arrest is required: Where statute or safety conditions require arrest, the victim's desire not to press charges does not authorize an officer to ignore the duty.
• Document the danger analysis: For discretionary misdemeanor decisions, record the facts supporting or negating impending danger, injury severity, and primary-aggressor findings.
• Cooling-off and booking practices: Agencies commonly use booking and cooling-off procedures after domestic arrests so the victim can seek safety and protective orders; follow current agency and court rules rather than inventing a statewide bond schedule.

Primary Aggressor Determination

In many domestic violence incidents, officers arrive on the scene to find both parties claiming to be the victim, and both parties may have visible injuries. To prevent the unjust arrest of a true victim who acted in self-defense, Louisiana law requires officers to determine the primary aggressor (also known as the dominant aggressor).

The primary aggressor is the person who is the most significant, rather than the first, aggressor. When determining the primary aggressor, officers must evaluate:

1. History of Domestic Violence: Who has the documented history of abuse? Have there been prior calls for service or protective orders?
2. Severity of Injuries: Which party suffered more severe injuries? Officers must distinguish between offensive injuries and defensive wounds (e.g., scratch marks on the abuser's face from the victim fighting back, or injuries to the victim's forearms).
3. Likelihood of Future Injury: Which party poses a continuous threat to the other?
4. Self-Defense: Did one party use force solely to protect themselves from imminent harm?
5. Physical Disparity: Are there significant differences in size, strength, or specialized training (e.g., martial arts, military background) between the parties?

Officers are strongly discouraged from making 'dual arrests' (arresting both parties). Dual arrests often re-victimize the actual victim, complicate prosecution, and fail to hold the true abuser accountable.

Protective Orders and Abuse Prevention (La. R.S. 46:2131)

Protective Orders (POs) and Temporary Restraining Orders (TROs) are vital legal tools for victim safety. Under the Protection from Family Violence Act (La. R.S. 46:2131 et seq.), victims of domestic abuse can petition the court for civil orders demanding the abuser stay away.

Types of Orders

• Temporary Restraining Order (TRO): Issued ex parte (without the abuser present) when there is an immediate and present danger of abuse. Valid until a formal court hearing can be held (usually within 21 days).
• Protective Order (PO): Issued after a court hearing where both parties have the opportunity to be heard. Can last up to 18 months, or in some severe cases, indefinitely.

Officer Enforcement

Violation of a valid Protective Order (La. R.S. 14:79) is a separate criminal offense. If an officer determines a valid order exists and the restrained party has violated its conditions (e.g., coming within a certain distance, contacting the victim), the officer must arrest the violator. It is essential to verify the order's validity through the Louisiana Protective Order Registry (LPOR).

Victim Safety Planning

An officer's duty extends beyond making an arrest; they must also ensure the immediate and ongoing safety of the victim. Safety planning is a collaborative process between law enforcement, victim advocates, and the victim.

Critical steps in safety planning on-scene include:

• Providing the victim with information regarding their rights (e.g., Louisiana Victim's Bill of Rights, LAVNS registration).
• Connecting the victim with local domestic violence shelters and crisis hotlines.
• Discussing a safe place for the victim to stay while the suspect is in custody, and anticipating what will happen when the suspect bonds out.
• Advising the victim on how to obtain a protective order on the next business day.
• Helping the victim secure immediate necessities (keys, identification, medications, children's items) if they choose to leave the residence.

By understanding the statutory elements, aggressively determining the primary aggressor, and prioritizing victim safety, officers can effectively intervene in the cycle of domestic violence.