Defending Against Domestic Violence Charges

The public outcry against Domestic Violence (DV) has resulted in harsh 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 VIOLENCE

Many crimes can be Domestic Violence charges. They include Assault, Stalking, Kidnapping, Unlawful Imprisonment, Trespass, Violating a Protective Order (NCOV), and Property Damage or Vandalism.

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.

MANDATORY ARREST

In 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 BAIL

Defendants 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 HISTORY

Being 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 ORDER

Judges 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.

Also, 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.

DEFENSES

There 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 physical discipline a child are some of the defenses to domestic violence charges. Attorney Alexander Ransom has vast experience in researching and arguing the appropriate defense.

MANDATORY FIREARM RESTRICTIONS

Individuals 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, successful negotiations with the Prosecutor could effectuate an agreed resolution under reduced charges.

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!

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