Domestic Assault Lawyers

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 What Is Domestic Assault?

Domestic assault is a criminal offense. Domestic assault occurs when the crime of assault takes place between a perpetrator and victim who have the required relationship. The crime of domestic assault typically includes behavior which threatens abuse and violence done by a family member or someone that lives with them toward another member of their family or household.

Depending on where one lives, the definition of assault varies. In general, assault can be defined as an intentional act by one person that puts another person in fear of imminent harmful or offensive physical contact. The actual infliction of physical injury by one person on another is not necessary for an act to be an assault. Inflicting unwanted physical contact on another person is the crime of battery.

However, it is important to remember that there is also a civil wrong, or “tort”, in legal terminology. A state may define the civil wrong of assault differently than the crime of assault.

And states define the crime of assault differently. For example, in New York, assault is the intentional infliction of physical injury to another person. So, the threat of imminent injury does not constitute assault in New York.

In New York, there are five forms of assault as follows:

  • First Degree Assault, a Class B violent felony;
  • Aggravated Assault on a Peace Officer, a Class B violent felony;
  • Second Degree Assault, a Class D felony;
  • Aggravated Assault by an adult on a minor under the age of 11, a Class E felony; and
  • Third Degree Assault, a Class A misdemeanor.

The fact that the victim was not injured is a defense against the crime of assault in New York. Also, in New York, domestic violence is referred to as “family offense.” An action for domestic violence can be filed in a New York family court. If the perpetrator’s actions constitute a crime, the appropriate crime is charged under the criminal code. The crime of assault would be charged as shown above.

In Illinois, the definition of criminal assault is the more traditional definition, the threatening of physical harm or injury such that it puts a person in fear of harm or injury.

The perpetrator of an assault must intend only to put their victim in fear that they would inflict harmful or offensive contact on the victim. The victim must have been placed in fear of suffering such contact.

Again, it is essential to note that in many states, the perpetrator of an assault does not have to inflict any physical injury on the victim to have committed an assault. If a person believes they will be hurt and they are in imminent danger of an attack or injury, then it can be considered an assault. The victim’s fear must be reasonable. That is, it must be the case that most people in the same situation would fear harm.

In other states like New York state, actually inflicting harm is an element of the crime of assault.

Domestic assault is one of the crimes that can constitute domestic violence or domestic abuse.

What Are Some Examples of Domestic Assault?

While domestic assault can occur between married and cohabiting couples, it is not limited to people in these relationships. It can occur between any two people who live together, such as roommates. Domestic abuse can also happen among other family members in the same house or apartment.

Additionally, some jurisdictions do not require that the victim and assailant live together at the time of the offense for a case to be charged as a domestic assault case. An example of when this may occur is when a couple divorces or separates and no longer lives together, but the assailant continues to abuse the victim. They may no longer live together under the same roof, but are still part of the same family unit.

The assault is sometimes followed by actual violence against the victim. The violence can be physical or sexual, or both. In this case, the perpetrator may be charged with assault and battery if the state defines the crime of assault without the element of inflicting actual physical injury. Or, the perpetrator can be charged with any other crime supported by the facts of the case, such as rape or assault with a deadly weapon.

The crime of domestic assault might be committed within a psychologically or emotionally abusive relationship. Again, a perpetrator who creates the fear of imminent bodily injury in the victim can be charged with assault.

What Is the Punishment for Domestic Assault?

As noted above, the law of assault varies in different states. Some states treat the crime of simple assault as a misdemeanor. Other states allow the crime to be charged as a gross misdemeanor or felony, especially if the perpetrator has a criminal record showing prior convictions. The punishments also depend on state laws. Domestic assault charges and prosecution can lead to jail time, the payment of fines or both.

The punishment for assault in New York depends on the degree of the crime committed as follows:

  • First-Degree Assault or Aggravated Assault on a Peace Officer: The punishment for first-degree assault is 3 to 25 years in state prison. The punishment for Aggravated Assault on a Peace Officer is 10 to 30 years in state prison and a fine of up to $5,000.
  • Second-Degree Assault: The punishment for second-degree assault is 3 to 7 years in state prison and payment of a fine of up to $5,000.
  • Aggravated Assault on Minor under Age 11 by an Adult: The punishment for this crime is 1.5 to 4 years in state prison and payment of a fine of up to $5,000.
  • Third-Degree Assault: This crime is punishable by up to 1 year in jail and or payment of a fine of up to $1,000.

In Illinois, a charge of assault is a Class C Misdemeanor Offense, which is punishable by up to 30 days in jail and/or payment of a fine of $1500. In addition, a person convicted of assault will also be sentenced to 30 to 120 hours of community service.

Aggravated assault can be charged as a Class A misdemeanor or a Class 4 felony depending on the facts of the situation.

Felony aggravated assault is punishable by a term of imprisonment in state prison of 1 to 3 years and payment of a $25,000 fine. Misdemeanor aggravated assault is punishable by up to 1 year in jail and payment of a fine of up to $2500.

Many states have a “mandatory arrest” policy. It requires that the police, if called to the scene of a domestic dispute, to arrest at least one of the people involved if there is any sign of abuse or if the issue will escalate once they leave.

In either case, a person must be prepared to cooperate with the police if they are called. Generally, the goal of law enforcement is to calm the situation and ensure that everyone, including any other residents and children in the home, is in a safe environment.

Are There Any Defenses for Domestic Assault?

As with the crime of assault, some defenses can be claimed by the defendant in a domestic assault case. There are cases in which the prosecution cannot proceed with a trial because their case is weak, perhaps because the victim has changed their testimony or refuses to testify. If this happens, the prosecution might find that they cannot prove the crime beyond a reasonable doubt as the law requires.

In New York, the following may be defenses to a charge of assault:

  • The victim was not injured.
  • The perpetrator did not intend to injure the victim.
  • The victim consented. This defense is not available in a case of second-degree assault involving a deadly weapon or third-degree assault involving intent to injure.
  • The perpetrator’s actions were justifiable as self-defense or defense of others. The defense is not available if the perpetrator was the initial aggressor.

In other states that define assault like New York does, the same or similar defenses might be available.

Possible defenses to a domestic assault charge in other states could include the following:

  • The actions were committed in self-defense.
  • The incident that gave rise to the charge was an accident, and the perpetrator did not have the required intent to harm the victim.
  • The perpetrator was misidentified, perhaps by an eyewitness whose identification was unreliable for various possible reasons.

Suppose the case involves a simple assault of which actual physical injury is not an element. In that case, the perpetrator might argue that the alleged threat of violence or injury has been overstated by the victim, and that their fear was reasonable.

In some states, it might be possible to get the charge dropped if the perpetrator agrees to undergo counseling or anger management classes.

The above is just a partial list of all possible defenses. It is important to remember that different states have different laws, and some defenses may be available in certain states but not others.

Do I Need the Help of a Lawyer for My Domestic Assault Issue?

If you are in immediate danger, you must call for help from law enforcement and dial 911.

If you are a victim of domestic assault, you want to consult a knowledgeable and experienced family attorney as soon as possible to determine your rights and options moving forward. A family attorney can help you get an emergency protective order or a restraining order to help you keep your abuser away from you.

If you have been charged with domestic assault, you want to consult an experienced criminal defense lawyer. Your lawyer can protect your rights and advise you on the best way forward in your case.

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