Domestic Violence Charges, Defenses, and Sentencing Options
Domestic violence is an assault crime that can have a big impact on your life. Not only will you have a violent crime on your record, it could impact your job, future career, and custody of your children. A family judge may even grant your spouse exclusive use of the marital home during the divorce. Just being charged can bring an avalanche of immediate consequences such as the judge entering a no-contact order stating that you cannot have any form of contact, including third party, with the complaining witness even if you have children together. The judge could also order that you not be in possession of any firearms as a pretrial condition. Most judges and prosecutors make these cases a high priority and things can get serious very quickly.
Under MCL 750.81, domestic violence originates from one of the following relationships:
· spouses (present or former)
· dating relationship
· individuals with a child-in-common
· residents of the same household
Elements of the Crime
Domestic violence is when an assault or battery occurs in one of the above mentioned relationships. Michigan law separates it into two categories: domestic violence and aggravated domestic violence.
This is just a simple assault or battery that does not require injury or proof of any injury.
1st Offense: Defendant faces up to 93 days in jail and $500 in fines
2nd Offense: Defendant faces up to one year in jail and $1,000 in fines
3rd Offense: Defendant faces up to two years in prison and $2,500 in fines
Aggravated Domestic Violence
This is an assault or battery that causes a serious injury requiring medical attention. It is not required that that victim seek medical attention, only that the injury was severe enough that it would require medical attention.
1st Offense: Defendant faces up to one year in jail and $1,000 in fines
2nd Offense: Defendant faces up to two years in prison and $2,500 in fines
New Strangulation Law
In 2012 the legislatures amended MCL 750.84 (Assault with Intent to do Great Bodily Harm Less than Murder) to include assault by strangulation or suffocation. Strangulation is defined as “intentionally impeding normal breathing or circulation of the blood by applying pressure on the throat or neck or by blocking the nose or mouth of another person." It is a felony punishable by up to 10 years in prison and $5,000 fines. The new law went into effect April 1, 2013. Defendants charged with domestic violence can also be charged with Great Bodily Harm Less than Murder or Assault by Strangulation because the elements are different. Not only do these greatly increase the severity of the charges, but it gives the prosecutor an extra bargaining chip when discussing plea negotiations.
Pretrial Release and Bond Conditions
As noted above, the judge has a myriad of conditions that can be imposed on someone charged with domestic violence. In almost all cases, a no contact order will be issued directing the defendant not to have any contact with the victim, including indirect contact through third parties and electronic communication. This can impose great obstacles, especially if the defendant and victim are living together and/or have children-in-common. The judge can also require the defendant to not be in possession of or purchase any firearms while the case is pending. If you have firearms, you will have to get rid of them or have someone else store them for you. Finally, the judge can also make you wear an electronic monitoring device. Not only does this impose an extra financial burden (the defendant has to pay for it), but often it requires a landline phone at an address within the court's jurisdiction. So, even if you can post bail but you don't live in the county, you would not be able to bond out if the judge requires electronic monitoring unless you can find a local landline to run the device through.
Deciding on Whether or Not to Go to Trial
This is a decision you should make only after consulting with an experienced criminal defense attorney upon reviewing all the evidence in your case. Often, these types of cases involve no injury and no witnesses outside the victim and the defendant. These “he said/she said" cases can be good to take to trial simply because the prosecutor will have a difficult time proving their case beyond all reasonable doubt if there is no additional evidence other then the victims' testimony to corroborate their story. If the victim has credibility problems (history of false reports, lying, etc.) that can make the case even stronger for the defense This can also backfire as a jury may very well believe the victim if her story comes across believable and credible. Also, if you have previous domestic violence convictions, the prosecutor may be able to introduce that at trial which is even more devastating to the defense.
It is important to review all the evidence of the case very carefully. Look to see if there are any other witnesses and if there are, compare their stories, look for bias from any of the parties or witnesses, are there any photographs, medical reports, is there a history of domestic violence or assaulter behavior from any of the parties. Many defendants choose to go to trial believing that the victim will not show up for court. This can work but it can also backfire if the victim does show up as many prosecutor or judges will not accept pleas (especially to reduced charges) on the day of trial. Even if the victim does not show up, the case may be dismissed without prejudice meaning that it can be re-filed. Prosecutors have been known to seek bench warrants for witnesses who do not show up for court.
Can the Victim Decide Not to Press Charges?
This is the most frequent question I get asked regarding domestic violence cases. Both defendants and victims ask if they can decide to drop the charges. The truth is that is entirely up the prosecutor. The prosecutor alone decides on whether or not to pursue a case. A victim can request that charges be dropped, but that doesn't mean the prosecutor will. Many times prosecutors will drop charges or greatly reduce charges at the victim's request as they don't like pursuing a case with a reluctant or un-cooperative witness. However, they will if they have to and they often do. Prosecutors and police frequently deal with the frustration of having someone seek police involvement in a domestic dispute only to request that no charges be pressed or they simply don't show up for court. This abuse of emergency services have caused many prosecutors to pursue domestic cases regardless of the victim's wishes, even though domestic violence is one of the most falsely report crimes.
Michigan does allow for a deferred sentence for first-time offenders under MCL 769.4a, commonly known as 769. It is similar to 7411 for drug crimes, in that if you successfully complete the terms of your sentence, you will not have a public record of the conviction. Keep in mind that this only applies to domestic violence convictions-- convictions for Great Bodily Harm Less than Murder or Assault by Strangulation are not eligible. Again, this can only be used one time. On top of jail and probation, the judge can also sentence you to attend a counseling program or drug treatment court if substance abuse is an issue.
Here are some of the most common defenses to domestic violence charges:
Other Cause of Injury-- While the victim may show signs of injury, it was caused by something or someone else other than the defendant.
Self Defense-- A person can use reasonable force necessary to defend themselves from being attacked or acting in defense of another person. This often includes children as the accused spouse asserts force was necessary to stop the other spouse from hurting the children.
She's Lying-- In cases where there are no signs of injury, the defendant can claim that the victim is simply lying about the assault. He Said/She Said can be difficult to prove beyond a reasonable doubt.
Accident-- Assault and domestic violence charges require intentional and willful actions by the defendant. If the contact or injury resulted from an unintentional act or an accident, then the defendant cannot be convicted.
De MinimisInjury or Contact-- This is where the physical contact is too trivial to constitute an assault or battery.