Domestic Violence

The crime of domestic violence did not exist in most states 50 years ago. The State rarely pursued battery or assault charges between married couples. The policies of many law enforcement agencies discouraged arrest in marital or intimate partner disputes. 

Police and prosecutors too often saw domestic violence as a "family matter" that did not need to take time and attention from other cases in the courts.

Efforts in the 1960s and 1970s to raise awareness of domestic violence became a rallying cry in the women's rights movement. As a result, women's shelters grew in number. Service providers interviewed victims of domestic violence who sought shelter. They began to see patterns in the "cycle" of domestic abuse. Academic research followed.

By the 1980s, data from domestic violence survivors demonstrated that the incidence of domestic violence was widespread. The inconsistent response of police and the legal system showed that domestic violence crimes were treated differently than other violent offenses. Although police may respond to many incidents, this did not result in multiple domestic violence charges. Unless a victim suffered serious physical harm, the charge remained a misdemeanor each time. Victim advocates pressured state and federal lawmakers to make changes in the law. The goal of such efforts was twofold: (1) to help bring victims to safety and (2) to hold violent offenders accountable.

Today, many states have separate criminal statutes against domestic violence. They also have domestic violence restraining order laws that provide immediate protection to victims seeking safety. Sentencing and treatment options for offenders have expanded as well.

What is Domestic Violence?

The Federal Office on Violence Against Women defines domestic violence as:

A pattern of abusive behavior in any relationship used by one partner to gain or maintain control over another intimate partner.

Domestic violence can refer to physical harm or behavior that is controlling, coercive, or threatening. It can happen in any intimate relationship — married or unmarried, straight or gay, living together, or dating. It can happen in other family relationships, including the parent-child relationship.

Domestic violence can take many forms. Not every act of domestic violence will meet the definition of the crime of domestic violence. States may use the term "domestic violence" or "domestic battery" to describe the same offense. Each state's law sets forth the elements of domestic violence crime in their state.

Forms of Domestic Violence

The definition of domestic violence includes many forms of abuse:

  • Physical abuse happens when an offender engages in hitting, biting, slapping, shoving, punching, or strangling (or other violent conduct toward a victim)
  • Sexual abuse happens when the abuser forces or attempts to force non-consensual sexual contact or sexual behavior upon the victim
  • Emotional abuse involves demeaning verbal attacks or criticism to lower the victim's self-esteem
  • Economic abuse occurs when the abuser controls household finances in a manner that makes the victim financially dependent on the abuser
  • Psychological abuse involves efforts by the abuser to cause the victim to fear them (often through the use of threats of harm to the victim or other family members)

Abusers may also use technology (such as social media, text messages, and tracking devices) to further efforts at emotional or psychological abuse. They may engage in stalking behaviors to isolate and control or restrict a victim's freedom of movement.

Domestic violence charges include certain common elements. These include:

  • Intent (knowing or reckless)
  • Causation (cause or attempt to cause)
  • Physical injury or harm
  • Family or household member (intimate partner, spouse or former spouse, parent of one's child, sibling, child, or other qualifying person)

State domestic violence laws may include provisions for assault and for threats of imminent harm (menacing). Some states, like Ohio, have a separate criminal statute called "domestic violence." Other states, like New York, do not. Where there is a separate "domestic violence" crime, one of the elements will be the relationship that makes the victim and offender family members. Where there is no separate statute, domestic charges will fall under assault statutes or other crimes based on the circumstances.

Penalties and Sentencing

A first domestic violence charge in most states will be a misdemeanor offense. Upon conviction, the abuser will face jail time, fines, and court costs. If the abuser has one or more prior convictions for domestic violence, then enhancement will make a new charge into a felony offense. Upon a felony conviction, the abuser may face a state prison sentence, fines, and court costs.

Aggravating factors can also elevate a domestic violence offense to a felony domestic violence or lead to other criminal charges. These factors may include:

  • The presence or use of a deadly weapon
  • Whether the assault caused serious bodily injury or harm
  • Whether the victim was pregnant at the time of the assault
  • Evidence that the abuser strangled the victim
  • Proof that the abuser committed a sexual assault

In most states with separate crimes of domestic violence, the statute focuses on conduct that causes physical harm. There are many serious crimes that may occur alongside or within a domestic violence incident. They include murder, attempted murder, felonious/aggravated assault, strangulation, rape, and stalking. If the domestic incident involved a sexual assault or rape, the State would pursue those crimes and may not file a domestic violence charge that carries lesser penalties.

In many states, the court will likely consider a prison sentence for higher-degree felony crimes. The court will also review an offender's past criminal record. If there are prior domestic violence convictions or prior felony convictions, this may weigh in favor of a prison sentence.

In certain circumstances, the court may use sentencing to get at the violence's root causes. If the jurisdiction has an effective batterer's intervention or domestic violence treatment program, the court may suspend county jail time or state prison time and place an offender on probation. The court can then order the offender to complete the batterer treatment program as a condition of probation. Sometimes, an offender may have undiagnosed or untreated mental health or substance abuse issues. If the court places an offender on probation, it can order the offender to complete assessments and treatments related to these.

Protective Orders and No Contact Orders

Given the role of power and control in a domestic violence situation, an abuser might try to contact the victim after an incident. They may blame the incident on the victim or apologize for a "loss of control." In a typical scenario, the person accused of domestic violence seeks to control the narrative of the incident. They may want to avoid police involvement. They may encourage non-cooperation by the victim with authorities.

In a pending criminal case involving domestic violence charges, the court can issue an emergency or temporary protective or restraining order during the case. A protective order directs the offender to have no contact with the victim or the victim's family and household members. It can provide exclusive use of a house to the victim.

These orders can last for the life of the criminal case. If an offender violates these orders, in most states, they commit a new criminal offense of violating a protective order. The court can also revoke their bail/bond.

Victims of domestic violence can also file for civil protection orders in family court. This can happen while the criminal case is pending or after its conclusion. A civil protection order can last for several years. If an offender violates these orders, they also face the possibility of new criminal charges. Civil protection orders can address matters of child custody, visitation, and financial support.

Each case is unique. Studies show that a victim may "leave" an abuser up to seven times before they succeed in breaking away.

Common Defenses or Defense Tactics

A common defense for domestic violence involves claiming that the State has not met its burden of proof. In a criminal case, the State must prove each element of the crime beyond a reasonable doubt. This is the highest evidentiary burden in the law. So if the defense can show reasonable doubt that the parties meet the element of "family or household members," they may convince a jury to acquit.

Sometimes, the defense will focus on the alleged victim's behavior to disprove an element of the offense. Victims of domestic violence often recant their abuse allegations for several reasons. They may also decline to appear in court as a way to "help" the offender escape punishment. Recantation or non-appearance of the victim can make the State's case much harder to prove in some cases.

It is also not uncommon for the criminal defense lawyer to argue that the cause of the victim's harm was an accident. Depending on the facts, they may also claim that the offender acted in self-defense.

In cases where the victim is the alleged offender's child, the defense may raise the issue of appropriate parental discipline. In many states, corporal punishment in parenting remains acceptable. The defense may claim a minor corporal injury (such as redness from a spanking) is evidence of parental discipline. They will argue it is not abuse or domestic violence.

Federal Laws

The Violence Against Women Act of 1994 (VAWA) created federal crimes for crossing state lines to commit domestic violence or to violate a protection order. It also helped fund and support state initiatives to enact preferred or mandatory arrest policies for domestic violence. These policies guide law enforcement on the facts necessary for probable cause to arrest.

Federal law also created certain consequences of a domestic violence conviction related to the possession of firearms. Since 1996 it is a federal crime for an offender with a misdemeanor domestic violence conviction to have or use a firearm. Violation of the federal domestic violence gun ban can result in felony charges.

Where Can a Domestic Violence Survivor Go For Help?

If you or someone you know is a victim of domestic violence, you should get help right away. In an emergency, a victim should call 911 or seek treatment at an emergency room or urgent care facility.

In other situations, a victim may consider a phone call to the National Domestic Violence Hotline at 1-800-799-SAFE (7233). The hotline can connect a victim with a counselor. It can also provide a referral to local resources that can help.

Charges Of Domestic Violence? An Attorney Can Help

Domestic violence cases are stressful and challenging for all people involved. Victims seek to stop the violence. Yet they may struggle knowing the relationship may end. They may fear the conviction's impact on the offender and their employment. Offenders often reach out to victims while the case is pending. This can cause complications for prosecutors and defense attorneys.

If you are a victim of domestic violence, you may want to seek legal advice from a family law attorney. You may also appreciate talking to a victim services provider. Either one may help you communicate with the district attorney's office.

If the State has filed domestic violence charges against you, consider getting legal advice as well. You can discuss your situation with a criminal defense attorney. An experienced lawyer can help you evaluate the allegations and possible defenses.

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