"In most cases, the victim is the spouse or someone very close to the defendant."
Domestic violence (DV) is term use for violence against a spouse, a former spouse, present or past romantic partner, child, family member or person who lives with you. Assault and battery against anyone is a crime, but the law gives special protection to spouses, girlfriends/boyfriends, children, elderly—those who are deemed “vulnerable."
It is illegal to use physical force or to communicate threats of harm against an intimate partner. In California and in most states, the most common DV crimes are as follows:
Corporal Injury to a Spouse or Cohabitant (Penal Code (PC) 273.5: It is illegal to inflict a corporal injury resulting in a traumatic condition. A person commits this crime by striking his/her partner in some violent manner causing a visible injury, even a slight one such a swelling or a bruise. This is a “wobbler"—meaning depending on one’s criminal history, gravity of the case and seriousness of the injuries, the prosecution can file it as a misdemeanor or a felony.
Criminal Threats (PC 422): It is a crime to communicate a threat of serious harm, death or great bodily injury to someone. The threat on its face and under the circumstances that it was relayed is unequivocal, immediate and specific as to cause sustained fear. Note, this crime can be charged even if there is no “special" relationship between the defendant and the victim. This too is a “wobbler" and in California considered a “strike."
Battery (PC 243(e)(1): If the injury is not grave and the circumstances necessitate filing of a misdemeanor offense rather than a felony. However, mandatory requirement for DV cases will still be imposed by the court.
Child Abuse/Child Endangerment (PC 273(d) and 273(a): If a minor or a young child is within the vicinity when the violence occurred, the prosecution may add these crimes.
Elder Abuse: (PC 368): Elder abuse is considered a crime of domestic violence. Infliction of physical and/or emotional abuse, neglect, endangerment or financial fraud to a victim 65 years or older will be prosecuted.
In most cases, the victim is the spouse or someone very close to the defendant. At times, this victim will recant or want to “drop the charges." But once, a police report has been made and subsequent arrest of the defendant, the victim is no longer in a position to control the criminal prosecution.
In California and in most states, DV charges are taken very seriously and most prosecutors will requests jail time in such convictions, even in first-offense settings. Additionally, it is mandatory to complete a 52 week domestic batterer program and require fines and penalties to be paid. Probation is also required. Such a conviction will be on one’s criminal record and will surface when someone does a routine background check. This can make it difficult to gain employment, state licensing and other benefits.
DV convictions present an especially serious problem for immigrants who are not United States citizens. Most of the DV offenses are crimes of moral turpitude and conviction will trigger one to be placed on removal proceedings. If you are guilty of a DV and you are undergoing a pending visitation or custody battle, often a spouse will use this conviction against you in family law court.
Simply being arrested for an alleged DV crime does not necessarily mean that the case is strong or a conviction is the only choice. Defenses to domestic violence should be closely examined by an experienced criminal defense attorney. The veracity and the motive of the alleged victim are critical to possible reduction or dismissal of the case.
Family Law Attorney