The Honeymoon's Over: Criminal Damage between Husband and Wife in Arizona - Domestic Violence Cases
One of the more common questions I get asked is how can a husband or wife be charged with criminal damage for breaking things that both of them own?
When I worked as a prosecutor, I used to teach Arizona property crime law to police academy students in Central Arizona. One of the statutes I harped on was Criminal Damage, A.R.S. § 13-1602, and how it applied to married couples in the community property state of Arizona.
It was important for these police-officers-in-training to understand that when marital 'stuff' is recklessly damaged by one spouse in a domestic violence (DV) situation, the officers must ask questions about ownership of the 'stuff' and make sure that information is documented in their police reports. For example, was it purchased by the couple during the marriage, was it owned by one spouse prior to marriage, was it obtained by gift or inheritance during the marriage, etc. The answers to these questions determine whether the 'stuff' is considered 'community property'. If yes, then 1/2 ownership is attributed to each spouse, and one spouse can be charged with recklessly damaging the 1/2 of the property that belongs to the other spouse. This information is critical in a DV criminal damage case, because a person cannot be prosecuted criminally if he or she damages his or her own ‘stuff’.
Here’s a real-world example. A married couple gets into an argument, and the wife starts throwing things. Let’s assume she throws a coffee mug at the flat screen TV and smashes the screen to bits beyond all repair. If the TV was purchased during the marriage, then it's most likely considered community property. That means the husband and wife each own 1/2 of the TV. If the TV is worth $400, split the value in half, and the husband and wife each own $200 worth of the TV. If the wife smashes the TV, then she can be charged with criminal damage for recklessly damaging the husband’s $200 ownership portion of the TV. The wife, however, cannot be criminally prosecuted for recklessly damaging her own $200 ownership portion of the TV, since it’s not against the law to break your own ‘stuff’.
Unfortunately, police officers rarely even make the slightest attempt to determine ownership of the property in DV criminal damage cases. They make the arrest or issue the citation and hope the attorneys or court can figure it out later. This can lead to disastrous consequences for the arrested spouse, even if the charge is later determined to baseless and dismissed.