What is Domestic Violence?
Domestic violence occurs when an intimate partner or family member attempts to control the actions of another through the use of physical violence, threats, intimidation, isolation, sexual abuse, emotional abuse or economic abuse. Domestic violence can occur between spouses, boyfriends and girlfriends, divorced couples, parents and children. It occurs across all culture, religious, ethic, sexual orientation, social and economic groups. Domestic violence is not just physical acts - it can include name-calling, put downs threats and financial control.
Domestic Violence Statutes and Orders of Protection
Each state has a statute that defines domestic violence and determines who it applies to and in what circumstances. While some domestic violence statutes also provide criminal penalties, most of these statutes are civil in nature. This means that they provide civil remedies to victims of domestic and do not punish offenders. This can include offering victims the opportunity to sue the offenders for monetary damages.
Additionally, victims also can apply for orders of protection. While these orders will vary in name and format state to state, they are designed to provide victims with relief from the abuse. Orders of protection may require the offender to leave the home, return personal property to the victim, pay child support or perform other acts.
Criminalizing Domestic Violence
All states have made domestic violence a crime. But this does not mean all types of domestic violence are punishable as crimes. For example, most states do not criminally punish economic and emotional abuse. Usually a person who has domestic abuse will be charged with a crime under the state's penal code, such as:
o Assault o Battery o Rape or sexual assault o Stalking o Kidnapping o False imprisonment o Trespass o Terroristic threats o Violating a protective order o Property damage or vandalism o Attempted murder or murder
Those convicted of a domestic violence crime may be ordered to pay fines, serve jail time or prison sentences, attend court-mandated treatment programs, pay restitution to the victim or be placed on probation. Other penalties also may be ordered, depending on the jurisdiction and severity of the crime.
Prior to the 1990s, domestic violence was handles as a state law issue. However, given the impact of domestic violence and frequency of abuse crossing state lines, several important federal laws have been passed and others have been amended to add domestic violence provisions, including:
Violence Against Women Act (VAWA)
o Under VAWA, it is a crime to cross state lines with the intent to commit domestic violence against and intimate partner. "Intimate partner" includes spouses, former spouses, past or present cohabitants and parents of a child in common. It is also a crime to cause an intimate partner to cross state lines by force, coercion, dress or fraud. Bodily injury has to result in order for someone to be charged under either these provisions.
o VAWA also makes interstate stalking a crime. Bodily injury does not have to result to be charged under this provision. The offender need only put the other person or a member of that person's immediate family in reasonable fear of death or serious bodily injury. "Immediate family" is defied as a spouse, parent, sibling, child or other person living in the same household and related by blood or marriage.
o Crossing state lines in violation of a valid protection order that forbids threats of violence, harassment and bodily injury also is prohibited under VAWA. The offender must have had the specific intent to violate the order at the time he or she crossed state lines and violation of the order must have occurred in order to be charged with federal offense.
Gun Control Act
o Persons who are subject to orders of protection that forbid harassment, stalking or threatening of an intimate partner or child n common are not allowed to possess or transfer firearms. The offender must have had notice of the order and have had an opportunity to contest the order before it was entered. Additionally, there must have been a finding that the offender was a credible safety threat to the intimate partner and/or child before this provision will be applicable.
o Those who a convicted of misdemeanor domestic violence crimes also are prohibited from possessing or transferring firearms. To be a qualifying misdemeanor crime, the offense must have included the use or attempted use of force or the threatened use of a deadly weapon.
If you have been charged with a domestic violence crime or have questions about orders of protection, an experienced criminal defense attorney can explain the law and your options to you.