In R.C. v. R.W., a man (R.C.) and a woman (R.W.) lived together with their two children. R.C. drove a Nissan, and R.W. drove a Buick. The relationship soured and the parties separated, each taking with them their respective cars. One day, believing that R.W. had begun dating another man, R.C. looked through R.W.’s cell phone, called her a whore, and then hurled a cinderblock through the window of her Buick. In response, R.W. threw a brick at R.C.’s Nissan. R.C. then sought a restraining order against R.W., which Judge Jones denied.

There is a two step test that judges use prior to issuing a domestic violence restraining order; (1) plaintiff must prove, by a preponderance of the evidence, that a predicate act of domestic violence has occurred, such as criminal mischief or harassment; and (2) plaintiff must demonstrate that a restraining order is necessary to avoid immediate danger to person or property.

In this particular case, R.C. proved that the defendant R.W. damaged R.C.’s car, thereby committing the predicate act of criminal mischief and satisfying number 1. However, according to Judge Jones, it was a legitimate defense to the issuance of a restraining order in this case under number 2, “plaintiff [R.C.] violently provoked defendant [R.W.] into her [R.W.]’s responsive actions which are at the heart of his [R.C.’s] legal action against her.”

The court held that the violent provocation of a plaintiff seeking a domestic violence restraining order is relevant to a court’s determination whether to grant or deny the restraining order. Judge Jones provided a list of five factors for the court to consider:

1. What was the specific nature and degree of the plaintiff’s violent provocation?
2. Does the evidence reflect that defendant’s response was premeditated, calculated and sustained, or rather, an instinctive and impulsive reaction to plaintiff’s violence with little or no time for reasonable thought and contemplation?
3. Was defendant’s response out of proportion to plaintiff’s initial violent provocation, i.e., significantly greater than plaintiff’s own actions toward defendant?
4. Did defendant’s action result in substantial harm to plaintiff?
5. Is there any significant prior history of domestic violence by defendant towards plaintiff?

Judge Jones emphasized that R.C. (the male plaintiff) provoked R.W. (the female defendant) by suddenly hurling a cinderblock threw the window of her car. In addition, it appeared from the evidence that, but for the plaintiff’s first blow to the defendant’s Buick, the defendant would not have thrown a brick at the plaintiff’s Nissan.

If you have been involved in domestic violence, or want to learn more about your rights as a victim, please call our office for a consultation.