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Opening an assault case against your spouse

There is so much domestic violence and abuse nowadays. It is becoming increasingly common for spouses to open up criminal cases against each other.

Often one spouse will get an interim protection order against another spouse. Sometimes if there is physical abuse I would advise a client to take this a step further and to open an assault case against their spouse.

Assault according to law can be either direct or indirect. Direct assault would be if you physically assault someone. That would for example, be by way of punching, slapping, kicking, or pushing.

Indirect assault is when one person threatens another with physical harm eg. "If you don't stop I'm going to beat you up". Many people believe assault is only direct physical assault. This is not the case however. It can be indirect too.

In a case of domestic violence, if you have been assaulted by your spouse and wish to open a criminal case against that spouse at the police station, the police would require a "J88" form to be filled in. This is a report by an authorised medical practitioner on completion of a medico-legal examination.

In this report the doctor would describe the nature, position and extent of the abrasion, wound or other injury together with its probable date and manner of causation. The position of all injuries and wounds would also be noted on the sketches in the report.

An example of the description of such injuries may read as follows: "Multiple superficial abrasions / scratches. Marks over neck, arms, legs and back. Bruise on forearm. Cut / bite mark next to left eye". In the report the medical practitioner would also need to state his / her qualifications eg. MBCHB and the place of examination eg. Medicross Sunninghill.

The doctor in the report would in conclusion need to be mention that there was "assault". He/she would also usually state that the mental health and emotional status of the patient was normal and that there was no clinical evidence of drugs or alcohol.

At the end of the day if there is a complaint of assault it is very much up to the S.A.P. to decide whether to take it further and prosecute. The police in my experience don't really like or have the time to get too involved in domestic violence matters or assault. They seem to have the view that there are more serious criminal matters to be dealt with eg. murder or theft cases.

If a client comes to see me and advises me that their spouse assaulted them my first advice would be to go to the doctor and get the "J88" form completed, as well as affidavits from anybody who saw the assault. Without the "J88", there is a very small chance that the assault case would even make it to court.


Related Articles

Interim protection order

Domestic violence

Mental instability of a spouse

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Emergency monetary relief in terms of the domestic violence act.


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