Domestic Violence Definitions

Performing violent acts in the home is a serious crime. In recent years many programs have been put in place in order to promote the reporting and intolerance of domestic violence occurrences. So what exactly constitutes domestic violence? By knowing what acts can be considered forms of domestic related violence you are better able to protect yourself and your loved ones from these situations.

The Definition of Domestic Violence

In the United States, each state has the ability to make their own laws and definitions concerning violence in the home. However, in general this illegal activity of violence is defined as an act done by a family member or household member against another family member or household member in order to cause harm, be it physical or otherwise. Some common acts and offenses that can fall under this classification can include:

· Causing physical harm and abuse
· Physical assault, such as making threats or causing serious intimidation
· Performing physical battery and other forms of violent contact
· Bodily injuries, be they minor or severe
· Performing sexual assault and battery, including spousal rape
· Threatening or implying the intention to cause harm to the other household member

These are some of the acts that can usually fall under the definition of domestic violence. This crime can be punished through fines, jail time, probation, legal orders, or any combination of those items, depending on the severity of the act. If you have been accused of committing this crime it is important you seek legal counsel to protect your rights and freedoms.

For More Information

Because the laws concerning violence in the home vary from state to state it is important to take measures to find out what laws you are responsible for abiding by within your home state. If you would like to know more about domestic violence or criminal defense law, visit http://www.thejohnsonlawfirm.com/practice-areas/assault-domestic-violence/ today.

Domestic Violence 101 – Laws, Facts and Information

Domestic violence implicates a wider range of offenses beyond simple battery. Acts which constitute this type of crime include any of the following:

o A battery;
o An assault;
o Compelling the other by force or threat of force to perform an act from which she has the right to refrain or to refrain from an act which she has the right to perform;
o A sexual assault;
o A false imprisonment;
o Unlawful entry of the other’s residence, or forcible entry against the other’s will if there is a reasonably foreseeable risk of harm to the other from the entry;
o A knowing, purposeful or reckless course of conduct intended to harass the other including, but is not limited to:

(1) Stalking.

(2) Arson.

(3) Trespassing.

(4) Larceny.

(5) Destruction of private property.

(6) Carrying a concealed weapon without a permit.

(7) Injuring or killing an animal.

As stated in the Nevada Revised Statutes, domestic violence includes a much broader range of offenses than simple battery. This crime can also include an unlawful entry into the alleged victim’s residence or other harassing conduct.

A person convicted of a first offense of domestic violence in Nevada must be sentenced to a minimum of two days jail time, and a maximum of six months jail time, in the Clark County Detention Center. A person convicted of a first offense also must be sentenced to 48 hours, but not more than 120 hours, of community service. Additionally, a first offense of this crime carries a fine of up to $1,000, and requires up to 6 months of counseling.

A second offense of domestic violence within a seven year period carries a minimum of 10 days jail time, 100 hours of community service, and a year of Las Vegas counseling specific to the crime.

A third domestic violence offense within seven years is punishable as a Category “C” felony and carries a mandatory prison sentence of up to 5 years. In other words, if convicted of a third domestic violence offense within seven years of the first conviction for a domestic violence offense, the District Court Judge must, under Nevada law, sentence you to mandatory prison time in Nevada State Prison.

Unfortunately, under the Nevada revised Statutes, a prosecutor lacks discretion in dismissing or reducing domestic violence charges unless your attorney can uncover a legal or factual problem with the case and demonstrate clearly that the case cannot be readily proven.

According to the Nevada Revised Statutes, NRS 200.485(7), if a person is charged with committing a battery, a prosecuting attorney “shall not” dismiss such a charge, or plead down the charge to a lesser charge or for any other reason unless the prosecutor knows, or it is obvious, that the charge is not supported by probable cause or cannot be proven at trial.

The above language, combined with the often overzealous prosecution of these cases by prosecutors, is a recipe for disaster. Prosecutors who handle domestic violence cases in Las Vegas have very little discretion. Often common sense takes a backseat to an overzealous Clark County Prosecutor’s desire to obtain a serious domestic violence conviction for what could have been handled in a more effective and lenient fashion. Not every Battery case needs to result in a conviction. Oftentimes, the police arrive at an incident, don’t get the right facts, arrest the wrong person, and refer a case for prosecution which should not have been submitted to the Clark County District Attorney’s Office. As someone who is charged with Domestic Violence in Las Vegas, you need to look for ways to protect yourself and have your side of the story represented fairly and aggressively. Otherwise, you will in all probability, pay high penalties, be forced to attend mandatory weekly counseling, and most significantly, serve jail time.

Domestic Violence No Contact Orders in Washington State

In Washington State, there is no crime of Domestic Violence. Rather, Domestic Violence is a tag that is put on other crimes indicating that there is a family or household relationship between the parties involved. Most jurisdictions will impose a No Contact Order that prohibits the defendant in a Domestic Violence (“DV”) case from having contact with the alleged victim of the crime. The order will often prohibit contact with the victim’s children, residence and place of work too.

Family or household relationship

According to RCW 10.99.020(3), family or household members is defined as:

[S]pouses, former spouses, persons who have a child in common regardless of whether they have been married or have lived together at any time, adult persons related by blood or marriage, adult persons who are presently residing together or who have resided together in the past, persons sixteen years of age or older who are presently residing together or who have resided together in the past and who have or have had a dating relationship, persons sixteen years of age or older with whom a person sixteen years of age or older has or has had a dating relationship, and persons who have a biological or legal parent-child relationship, including stepparents and stepchildren and grandparents and grandchildren.

As you can see, this definition is extremely broad. It is far more inclusive then what most people would expect it to be. The same is true for the types of crimes that are labeled “Domestic Violence.” Most people only think of Assault when it comes to domestic violence, however there are many other crimes that can carry the DV tag.

Mandatory Arrest

According to RCW 10.31.100(2)(c), an officer must make an arrest if: The person is sixteen years or older and within the preceding four hours has assaulted a family or household member as defined in RCW 10.99.020 and the officer believes:

(i) A felonious assault has occurred;

(ii) an assault has occurred which has resulted in bodily injury to the victim, whether the injury is observable by the responding officer or not; or

(iii) that any physical action has occurred which was intended to cause another person reasonably to fear imminent serious bodily injury or death. Bodily injury means physical pain, illness, or an impairment of physical condition. When the officer has probable cause to believe that family or household members have assaulted each other, the officer is not required to arrest both persons. The officer shall arrest the person whom the officer believes to be the primary physical aggressor. In making this determination, the officer shall make every reasonable effort to consider:

(i) The intent to protect victims of domestic violence under RCW 10.99.010;

(ii) the comparative extent of injuries inflicted or serious threats creating fear of physical injury; and

(iii) the history of domestic violence between the persons involved.

If you get arrested for a crime involving domestic violence, a No Contact Order will slam into place almost immediately.

No Contact Orders

There are two types of No Contact Orders in Washington State: Pre-Trial and Post Conviction. Both types of orders prevent the defendant from having contact with the alleged victim. However, neither type prevents the victim from trying to have contact with the defendant, since only the defendant goes to jail if the order is violated. In other words, the No Contact Orders limit only the defendant’s behavior.

Pre-Trial

Pre-Trial Orders are issued against the defendant (sometimes called a Respondent) before he or she is convicted of having done anything wrong. These orders can preclude contact between the Respondent and the alleged victim of the crime, the victim’s children (even if they are the Respondent’s children too), the victim’s place of work and the victim’s home (even if it’s the Respondent’s home too).

In other words, these orders can force you away from your home and your kids before you have even been convicted of a crime. This is true even if the victim says that nothing happened or that whatever did happen was blown all out of proportion.

Pre-trial orders stay in place until there is a resolution to the criminal case or until a Judge lifts it.

Post-Conviction

A No Contact Order issued after conviction can carry the same types of restrictions that a Pre-Trial order does. Post-Conviction Orders are generally good for a year, however a Judge can extend that if he or she feels that the facts warrant it.

Civil Standby

Since a No Contact Order can preclude you from going to your own home, the Courts will generally allow you one trip home to get clothes and a few personal items. However, you must be accompanied by a Law Enforcement Officer. This process is called a “Civil Standby.” You must contact the law enforcement agency and schedule a time for the Civil Standby. Be aware, however, that this is a low priority action for most law enforcement agencies, so the civil standby will only be done when they have the time to spare.

Violating a No Contact Order

A willful violation of a No Contact Order is a gross misdemeanor; which means that you can get up to a year in jail and a $5,000 fine. Since violating a Domestic Violence No Contact Order is itself labeled a crime of domestic violence, your rights to own or possess firearms will be forfeited upon conviction – even if no gun was used, possessed, mentioned or in any other way used or contemplated. This is true even where the underlying criminal case, which caused the No Contact Order to be issued, is dismissed.

Being in a public place, even the courthouse, is not a defense to violating the order. This means that if an order is issued against you and you see the protected person at a grocery store then you must leave. Inadvertent contact may technically not violate the order, but you may well have to go in front of a Judge to defend yourself. Besides the stress involved, you may have to spend more money in order to hire an attorney.

Even if the victim invites the contact, the respondent can face jail time if the order is violated. What I see most often in my cases, is the following scenario:

Two people have a relationship. Something happens and the police are called. Because of everyone’s sensitivity to “Domestic Violence” the police err on the side of charging someone. A No Contact Order then slams into place, precluding the two people from having contact with one another. It may also make one of them unexpectedly homeless – but that is a different issue. People, being people, want to work the problem out and the alleged victim contacts the defendant and says something to the effect of “I’m so sorry that all of this is happening. Come home and I’ll make it worth your while.” The problem, of course, is that the defendant takes the alleged victim up on the offer. Generally, legal problems multiply for the defendant shortly thereafter as the happy couple go out to celebrate their rekindled relationship only to pull a “slow and go” at a stop sign – or some other minor traffic infraction. They then get stopped by the police. When the officer runs the occupants’ information, up jumps the No Contact Order and the defendant is arrested then taken to jail where he is now facing an additional charge.

Removing the Order

It is very difficult to remove a Pre-Trial No Contact order once it is in place. Even if the victim comes in and testifies before the Judge that the order is not needed, most Judges will leave the order in place.

One strategy is to have the defendant evaluated by a Domestic Violence Treatment Agency. If a counselor is willing to tell the Judge that the defendant would not pose a danger to the victim if the order is removed, then the Judge can eliminate the order. The Treatment Agency may want to get the defendant into classes before agreeing to make a recommendation to the Judge.

Another strategy is to ask the Court to modify the No C0ontact Order to allow marriage counseling. Some Judges will require that contact only be allowed while monitored by a third party from the treatment agency.

Once a No Contact Order has been modified to allow conditional contact, a Judge is more likely to remove the order later, unless there is a new problem.

Victim Rights

Most Prosecutors’ Offices have a Domestic Violence Advocate. It is this person’s job to help the victim of a domestic violence offense understand what services are available to them and help keep them informed as the court process moves along.

I have seen numerous cases where the victim does not want the No Contact Order to be in effect. Going through the victims advocate person can sometimes be helpful.

Most courts have a form that the alleged victim can fill out requesting that the Judge drop the No Contact Order. In my experience, most Judges will maintain the order even after the victim asks to have it dropped. Even though the order remains in place, having the victim ask for it to be removed is still valuable, since it may be useful on a later attempt to remove the order.

Gun Rights

Conviction for a crime labeled Domestic Violence will cause you to loose your right to own or possess firearms. This is a lifelong ban.

Example

In one case I had, the husband was arrested for a Domestic Violence charge when, during an argument, he threw a bowl into their kitchen sink, chipping it. The argument was overheard by a nearby neighbor who called the police. The police arrived and when they looked in the sink, they found the chipped bowl and arrested the husband for domestic violence malicious mischief. There was no allegation that the husband threw the bowl at, or even near, his wife. Since Washington is a Community Property state, both the husband and the wife had an ownership interest in the bowl, thus by chipping his bowl, the husband damaged property belonging to another (i.e. his wife) and was therefore liable under Malicious Mischief. Without counsel, the husband (who had no prior criminal history) pled guilty at arraignment. He was given a one year No Contact Order which prevented him from going home for a year or having any contact with his wife.

Had the husband contacted an attorney prior to pleading guilty, he may not have had a conviction at all. Even if there was a conviction, an attorney could have helped him avoid such a long No Contact Order.

Copyright (c) 2007 The Cahoon Law Office – All rights reserved.

Domestic Violence Rears Its Ugly Head

Domestic violence and domestic abuse assault are alive and well in the United States. From the time that we first wrote about this issue over eight years ago the only thing that has changed is that it appears that law enforcement officials are more aggressively pursuing domestic violence complaints. After all, they are a felony.

From a recent article about domestic violence comes this quote:

“Silence is part of the problem. Time and again it’s been shown that the secrecy shrouding domestic violence can allow it to escalate to more severe physical confrontations and tragic consequences. Silence also bolsters society’s illusion that domestic violence is not a more significant social problem, further isolating victims and abusers from getting help.”

If you think you’re doing your intimate partner a favor by keeping quiet about his assaults on you, you’re not. If you feel it’s too embarrassing to talk to a friend and help them in a domestic abuse assault situation, you’re not doing them any favors either.

Silence is not golden-especially in a domestic violence situation.

One out of every four women in the United States experiences intimate partner violence and this is not just limited to adult women. One in three high school age girls experiences violence in a dating relationship.

The percentage of women under the age of 18 who are raped by a family member is an absolutely disgusting 34%, and women who are homeless or have disabilities are especially vulnerable with their percentages over 50% likely that they will be the targets of domestic abuse assault.

The percentage of teen rape and abuse victims who report their assailant as an intimate partner is 76%.

Especially since law enforcement is taking these complaints more seriously, the chances of getting help from the law enforcement community is greatly increased. It used to be as recently as five or 10 years ago that domestic abuse or domestic violence complaints were given a wink and a nod by law enforcement-they just weren’t taken seriously. But thankfully those days appear to be over.

Women who are in a domestic abuse situation should not only arm themselves with a self-defense product like a stun gun or pepper spray, but they should seriously develop an escape plan.

A self-defense product can provide you precious minutes of relief in an assault so you can seek help. An escape plan would entail trusting a friend, neighbor or relative to harbor you in an emergency. You don’t want to leave your future in the hands of a shelter that may or may not be able to admit you.