Domestic Violence

California’s criminal justice system prosecutes domestic violence cases very aggressively. It’s good that the law seeks to protect people from domestic violence, but all too often, overzealous prosecution of these cases can lead to unfair and frustrating situations. District Attorney’s offices have separate domestic violence units that will prosecute every single case, no matter how minor. A wrongfully accused defendant can find himself with a restraining order that doesn’t even let him go back to his own house. A good lawyer fighting for you is essential in domestic violence cases.

Domestic violence is simply a battery committed against someone who is a present or former cohabitant or intimate partner. The most commonly charged domestic violence offenses are Penal Code section 243(e)(1) – Domestic Battery – and Penal Code section 273.5 –Corporal Injury. Related offenses involving children are Penal Code section 273a - Child Endangerment – and Penal Code section 273d – Child Abuse.

Penal Code section 243(e)(1) – Domestic Battery

Domestic Battery is the willful infliction of force or violence upon an intimate partner. For the purposes of section 243(e)(1), an intimate partner is a current or former spouse, fiancé, or dating partner, the parent of your child, or someone that you live with. Even the slightest unwanted touching of another person can be considered a battery; no injury is required. Domestic Battery is a misdemeanor, but it can result in serious consequences, such as up to one year in jail, a 52-week batterer intervention program, a restraining order, various fines, probation, and community service hours.

Penal Code section 273.5 – Intentional Infliction of Corporal Injury

Corporal Injury is a Domestic Battery that results in any type of wound or injury, no matter how minor. Penal Code section 273.5 - Corporal Injury applies only to current or former spouses, the parent of your child, or current or former cohabitants. It can be charged as either a felony or a misdemeanor, depending on how serious the circumstances are. If charged as a misdemeanor, the possible penalties include up to one year in jail, a 52-week batterer intervention program, a restraining order, various fines, probation and community service hours. If charged as a felony, it carries a prison sentence of up to four years (five years if you have certain prior convictions). If the victim suffers Great Bodily Injury, defined as “significant or substantial physical injury," up to five additional years in prison can be imposed.

When the Victim Does Not Want to Prosecute

One of the most common situations leading to domestic violence charges is when a relatively minor squabble takes place between domestic partners and somebody calls the police. When the police arrive, they separate the parties and try to get them to make statements about what happened. Often one or both partners are intoxicated or very angry and they make exaggerated claims about what happened. The police arrest the aggressor and bring him or her to jail.

Later, when he or she has calmed down or sobered up, the alleged victim does not want the accused party to be prosecuted. Frustratingly, however, the District Attorney will often insist on prosecuting, even without a cooperative victim. Because victims sometimes seek to have the charges dropped out of fear of threats made by their abuser, some DA’s offices refuse to drop domestic violence charges under any circumstances, unless they absolutely cannot prove their case. They will even subpoena the victim and try to compel her to testify against her will. The victim will then need to discuss with an attorney any legal ways to avoid testifying, such as 5th Amendment (self-incrimination) issues. When it becomes clear to the District Attorney that the victim does not wish to cooperate, he or she will be more willing to reduce or dismiss the charges.

Common Defenses to Domestic Violence Charges

If you are charged with domestic violence, don’t be discouraged because very often one of the following defenses may apply:

Self-Defense – You are not guilty of domestic violence if you used a reasonable amount of force to prevent the alleged victim from harming you. A person is entitled to use a reasonable amount of force to prevent any touching by another person that would be offensive to them. A person does not have to wait until the other person actually touches them to use self-defense.

Defense of Another – Likewise, you are not guilty of domestic violence if you used a reasonable amount of force to prevent the alleged victim from harming another person.

Defense of Property – You are legally entitled to use some force, only that amount which is reasonable under the circumstances, to defend property.

False Accusations – Unfortunately, it’s very common for people to make false accusations of domestic violence. People do this because of the volatile nature of intimate relationships and sometimes for the advantages it can bring in family court proceedings. A good defense, in these circumstances, will involve investigation of the accuser’s character and motives.

Accident – Often in the heat of an argument, someone can accidentally get hurt. But, even when someone gets hurt, you are not guilty of domestic violence unless you intentionally harmed that person. Accidentally causing an injury is not domestic violence.

If you are charged with Domestic Violence, you definitely want a lawyer who is going to really go to bat for you. I’m here to fight for your rights and help you navigate through this challenging situation.