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PENAL CODE 13701 - THE PRIMARY AGGRESSOR GETS ARRESTED

Angry man with smoke coming out of his ears presumably a doctor arrested for domestic violence
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PENAL CODE 13701 - THE PRIMARY AGGRESSOR GETS ARRESTED

Many domestic violence incidents were treated as a "family matter" and police did little to intervene.  Advocates for domestic violence victims argued that this family matter approach took a crime and made it into a family argument ending in escalating patterns of violence and victim abuse. 

To counter this, California Penal Code § 13701, was passed and this law mandates how every police agency in the state must respond to domestic violence incidents.

Often overlooked in the public eye, this section, located in Part 4 of the Penal Code, acts as the blueprint for law enforcement, ensuring a standardized, victim-centered approach across California. While the core law has been effective since 1986 and saw its most recent amendment in 2021, its requirements remain the backbone of the state's efforts to curb domestic abuse.

The Mandate: Uniformity and Enforcement

California PC § 13701 is all about removing officer discretion and promoting aggressive enforcement. It compels every law enforcement agency to develop, adopt, and implement written policies that explicitly recognize domestic violence as alleged criminal conduct over mediation.

This means police responses are not left up to individual interpretation; they must follow established procedures designed to protect victims and hold batterers accountable.

Key Requirements of the Policy Blueprint

The statute is broken down into several subsections that dictate exactly what these written policies must contain.

Subsection 
* Emergency Victim Assistance: Providing immediate help, including medical aid and safety planning.
* Arrest Decisions: Clear guidelines for when to make an arrest. This includes a mandatory arrest for violations of court orders, such as restraining orders.
* Identifying the Dominant Aggressor: A critical policy to prevent dual arrests (arresting both parties) in situations of mutual combat. Officers must consider the injury severity, the victim's level of fear, and prior history to determine who is the primary instigator.
* Evidence Preservation: Procedures for securing evidence, such as photographing injuries and seizing weapons involved in the incident.

 

The More Aggressive Person Gets Arrested

Under California Penal Code § 13701, the person arrested for domestic violence is the dominant aggressor, who isn't necessarily the first person to strike, but the most significant aggressor.   

What the statement is referring to

The quote you provided is a common paraphrase used in California law enforcement training and domestic violence policy, but it is not a direct quote from Penal Code § 13701 itself.

The actual law that establishes the "dominant aggressor" (sometimes called "primary aggressor") framework in California domestic violence arrests is Penal Code § 13701(b), which requires every law enforcement agency to have a written policy on domestic violence response. That policy must include specific guidelines for determining whom to arrest when both parties have used force.

The key part of § 13701 (as implemented in most agency policies) directs officers not to make an arrest based simply on who hit first or who has visible injuries, but to arrest the dominant/primary aggressor.

What "dominant aggressor" actually means in practice

California law and the standard LAPD/SFPD/etc. policies (which all follow the state model) tell officers to consider factors such as:

  • The relative severity of injuries inflicted by each party
  • The history of domestic violence between the parties (prior calls, restraining orders, etc.)
  • The relative size, strength, and fighting skill of the parties
  • Which party has been the primary aggressor in past incidents
  • Threats or intimidation used (e.g., “I’ll kill you if you leave”)
  • Which party is acting in self-defense versus initiating or escalating violence
  • Whether one party is using force to control or dominate the other over time

In short: The dominant aggressor is the person who is the most significant aggressor in the relationship or incident — the one who poses the greater ongoing threat or who is using violence as a means of power and control — not necessarily the person who threw the first punch or the only punch.

Real-world example

  • Scenario: A woman slaps her much larger husband after months of being beaten and threatened by him. He restrains her hard enough to leave bruises but doesn’t hit back this time. → Under a strict “who hit first” rule, the wife would be arrested. → Under California’s dominant-aggressor rule, the husband is far more likely to be the one arrested, even though he didn’t strike the first (or only) blow in this particular incident, because he is the person who has been the controlling, dominant aggressor in the relationship.

 Domestic Violence arrests can destroy a career in medicine, business, the schools and in many other situations.  The significant aggressor approach leads to arrests that often go nowhere.  The case is dismissed but the fact of the arrest lingers.  If you are arrested for domestic violence, particularly if you are in law enforcement, medicine or other employment role where the arrest itself is damaging, call our Criminal Defense lawyers for an initial consultation.  Call (925) 283-1863

 

 st Women Act (VAWA).