DEFENDING AGAINST DOMESTIC VIOLENCE CHARGES
The public outcry against Domestic Violence (DV) has resulted in harsh DV laws in every state of the nation. This guide describes the legal definitions of DV, criminalization, felony vs. misdemeanor, arrest, arraignment, bail, No-Contact Orders, Defenses and loss of gun rights.
LEGAL DEFINITIONS OF "VICTIM" AND "DOMESTIC VIOLENCE"In most jurisdictions, "Domestic Violence" means (a) Physical harm, bodily injury, assault, or the infliction of fear of imminent physical harm, bodily injury or assault, between family or household members; (b) sexual assault of one family or household member by another; or (c) stalking of one family or household member by another family or household member. Although many of these terms come with their own legal definitions, most people fail to realize that a victim's mere perceived threat of domestic violence from the defendant is enough to trigger prosecution. This is because the WA Legislature believes that the dynamics of Domestic Violence include an assertion of power and control established by the defendant over the victim; and as such, the perceived behavior is unlawful.
CRIMINALIZING DOMESTIC VIOLENCEThe following crimes can be Domestic Violence charges in most states: Assault, Battery, Rape or Sexual Assault, Stalking, Kidnapping, Unlawful Imprisonment, Trespass, Violating a Protective Order (NCOV), Property Damage or Vandalism, Attempted Murder or Murder.
MISDEMEANOR OR FELONY?Most domestic violence charges can be charged as either a felony or a misdemeanor. A defendant charged with a felony can serve significant time in prison, whereas a defendant charged with a misdemeanor may serve only a short jail term or be required to pay a fine, attend counseling or be put on probation. Whether a crime is a felony or a misdemeanor is determined by the seriousness of the crime and the relevant state laws. In many jurisdictions, acts that result in serious injuries are charged as felonies. Cases with no injury or slight injury are charged as misdemeanors. A prosecutor may consider prior violent acts by the defendant to determine the level of crime to charge. Competent Defense Counsel may seek to reduce the felony charges to misdemeanors or dismiss the case altogether. For example, one basis of dismissing a case is if the Prosecutor cannot prove every element of the crime charged. Perhaps in the case of an assault charge, the victim's injuries were not as serious as originally thought. At any rate, competent defense counsel could also leverage the threat of bringing a dismissal motion in the hopes of resolving the case with a downward amendment of the original charges.
MANDATORY ARRESTIn most jurisdictions, police officers MUST immediately arrest a suspect after establishing probable cause and determining who the primary aggressor, and establishing whether a domestic relationship exists between the parties. The arrest happens regardless of the severity of the crime, request of the victim, lack of criminal history and/or lack of prior domestic disputes.
MANDATORY ARRAIGNMENT AND BAILDefendants charged with domestic violence face mandatory arraignment and might be ordered to pay bail. Under court rules, defendants must stay in custody before the judge makes decisions on issues such as entering no-contact orders, imposing bail and entering other conditions of release. Most jurisdictions now impose standard bail amounts regardless of the facts of the case, wishes of the victim or criminal history of the suspect. Despite the challenges, a competent Defense Counsel will try to release a defendant on their personal recognizance (free from bail) or lowered bail amount. Judges must be persuaded the defendant has established ties to the community such as family, gainful employment and length of stay in the community. Judges also must be ensured that the likelihood of the defendant harming others, contacting the victim and/or intimidating witnesses is slim to none.
VIOLENT CRIMINAL HISTORYBeing convicted of Domestic Violence requires years of additional time before defendants may seal or vacate the conviction from their criminal record. Additionally, Domestic Violence convictions disqualify many from entering Canada for at least 5 years. In most jurisdictions a convicted defendant MUST complete a mandatory certified domestic violence treatment program. Again, these post-conviction consequences occur regardless of the facts, criminal, or medical history of the defendant. For these reasons it is crucial to hire competent Defense Counsel to reduce or dismiss the charges.
NO CONTACT ORDERJudges routinely enter No-Contact orders between parties while the case is pending. Typically, No-Contact Orders prevent defendants from venturing near the residence, workplace, daycare and/or school of a victim. Defendants are required to stay 500-1,000 feet away from these places. Defendants also cannot contact victims by phone, email, text message and/or through a third party. Additionally, a judge may also issue an order prohibiting contact with child witnesses and others. Although the entry of no-contact orders is discretionary, it is now routinely requested by the prosecutor and near automatically granted from the court. At arraignment, Defense Counsel can request the Court modify the No-Contact Order early in the case proceedings. Oftentimes, the defendant and victim might work together, live nearby each other, have children in common, provide health care to each other and/or are business partners. In these instances, courts modify No-Contact Orders to reflect these nuances in an effort to avoid destroying people's lives and uphold the government interest of protecting victims from defendants facing these charges. In every jursidiction in the United States, violating a No-Contact Order brings criminal charges separate from the underlying offense which created the No-Contact Order in the first place. These charges can be a gross misdemeanor or felony. Consequently, it is IMPERATIVE that defendants follow the Court's No-Contact Orders, even if the victim invites contact. Defense Counsel may argue a pretrial motion to modify or rescind No-Contact Order(s) while the case is pending. Although difficult, some judges are willing to modify or rescind. They consider the following factors: (1) the facts of the case, (2) criminal history of the defendant, (3) DV history between the parties, (4) whether the defendant is currently enrolled in a treatment program and, most important, (5) the wishes of the victim. During these hearings the judge listens to testimony from all parties; including the defendant, victim, DV Advocate and the Prosecutor.
DEFENSESThere are many defenses to Domestic Violence charges. Who witnessed the incident? Was it intentional? Are the witnesses credible? Is there a 911 Call? Are there injuries? If so, were the injuries photographed by the victim and/or police? Were the parties consuming alcohol and/or drugs? Was the defendant undergoing severe mental health issues during the incident? Who started the conflict? Why did it start? Why did it escalate? Was the combat mutual? Was the issue about discipline of child, and not assault? The answers to these questions could form the basis for an appropriate defense. Accidents, false accusations, lack of intent, self-defense & defense of others, diminished capacity, voluntary intoxication, alibi, insanity, lack of probable cause, mistake of fact, necessity, and a parent's right to discipline a child are some of the defenses to domestic violence charges. A competent defense attorney will review the evidence in search of the appropriate defense.
MANDATORY FIREARM RESTRICTIONSIndividuals convicted of Domestic Violence charges permanently lose their right to bear firearms. A violation of this condition is a felony offense which carries harsh penalties. Although re-obtaining this right is possible through petitioning the superior court, accomplishing this task brings significant political and legal challenges. Again, a competent defense attorney can possibly avoid a firearms restriction by making every attempt possible to dismiss the Domestic Violence designation. In the alternative, perhaps formal discussions with the Prosecutor could persuade the entry of an agreed resolution under a different charge altogether. For example, a resolution pursuant to In Re Barr allows an accused person to plead guilty to a substitute charge that is a legal fiction in order to receive the benefit of a plea bargain. The plea must be knowing and voluntary. The defendant must also acknowledge that there is a realistic or significant risk of conviction of the original charge, and the court must find that enough of a factual basis exists for the original charge and that the risk of conviction is significant enough. Domestic Violence is a galvanizing issue in society today. For these reasons, it is utterly crucial to hire Defense Counsel with the experience and motivation to seek justice for you. Good luck!
Additional resources provided by the author
- Whatcom County Domestic Violence Filings Increase
- Domestic Violence Brutality Increasing in Whatcom County
- State v. Pugh: WA Supremes Admit “Excited Utterance” Hearsay Evidence of 911 Call; Disregard State v. Crawford
- When Men Are Victims of Domestic Violence
- RCW 10.99: Law Enforcement's Official Response to DV Calls & Accusations
- State v. Pinson: When Prosecutors Violate a Defendant’s 5th Amendment Right Against Self-Incrimination
- State v. Gunderson: Court Decides Prior "Bad Acts" of Domestic Violence Are Inadmissible
- The Defense of Physical Discipline of a Child