Domestic violence refers to a situation in which an individual acts in an abusive manner towards another individual who resides with them, for example, a:
- Significant other;
- Family member; or
Domestic violence is an issue that arises during many civil family law cases. A legal separation or divorce case may involve domestic abuse or violence, which may be why the case was filed.
These types of cases are civil cases. This means that the parties to the action are private individuals. Domestic violence may lead to criminal charges and a criminal case.
Criminal cases are brought against a defendant by the government or the state. Domestic violence often results in cyclical or recurring instances of assault and battery, both criminal offenses.
In cases of domestic violence, criminal charges are more likely to be filed if one of the following factors are present during an incident:
- Severe bodily harm;
- Use of a weapon;
- If the defendant violated a restraining order;
- Ongoing instances of abuse;
- Alcohol or drugs; or
- If a minor witnessed the abusive incident.
It is important to note that once a criminal charge is filed against the abuser, the government or state can only dismiss the charges. This is because that entity is the one that decides whether or not to prosecute the defendant.
However, a victim has the right to drop a civil case if they filed one against their abuser.
What Are Some Legal Penalties Associated with Domestic Violence?
As noted above, domestic violence may result in both criminal charges and civil claims. When a civil claim is filed, the victim, or plaintiff, may be able to collect a monetary damages award if they prevail in the case.
A monetary damages award can be issued in cases where a defendant is required to compensate a victim for certain expenses. This includes medical costs or lost earnings and wages resulting from recovering from the injuries they suffered during the incident.
Additionally, when criminal charges are also brought against an individual who committed domestic violence, it may result in a misdemeanor or felony conviction. If a defendant is convicted of a misdemeanor, they may be required to pay criminal fines or serve jail time of up to one year.
If the crime is charged as a felony, the defendant may be required to pay a higher criminal fine and serve a longer prison sentence, typically for more than one year. The reason there are different ways to charge domestic violence cases is that felony domestic violence cases, in general, have an outrageous element to them, for example, the harm that is severe enough that it may lead to the victim’s death or if a deadly weapon was used during the incident.
There are also other consequences that a defendant may face as a result of a domestic violence conviction, including the loss of child custody or child visitation rights and having a domestic violence protection order filed against them. If a defendant violates a protection order, they can be arrested immediately without probable cause and will face even greater penalties.
When Is Domestic Violence Considered a Felony?
Domestic violence may include physical acts of abuse, such as hitting or kicking, and non-physical abusive behavior, such as:
- Offensive language; and
- Emotional or psychological manipulation.
As noted above, domestic violence issues may arise in both civil and criminal cases. It typically arises in family law cases, such as:
- Legal separation; or
- Child custody.
Domestic violence may be a criminal matter because the defendant’s violent actions typically result in cyclical or recurring incidents of assault and battery, both of which are criminal offenses. The more times that a defendant is charged or convicted, the more likely it is that their actions will result in a felony offense.
What Factors Classify Domestic Violence as a Misdemeanor?
Domestic violence may be classified as a misdemeanor if it involves an individual attempting to use, use, or threaten to use physical force against another household member. A misdemeanor charge is typically the result of an assault or battery crime.
For example, an assault occurs when an individual intentionally threatens another individual to the extent that the victim becomes reasonably apprehensive that they are in imminent danger of bodily harm. A defendant may commit an assault if they threaten or scare another individual to the level that they believe actual harm will soon be inflicted upon them.
A battery occurs when an individual uses physical force against another, resulting in harmful or offensive contact done without their permission. Another example of when domestic violence may be a misdemeanor is when the defendant emotionally abuses the victim.
Emotional abuse may consist of the following:
- Verbal abuse;
- Screaming; and
- Making remarks that are upsetting or belittling.
What Factors May Convert a Misdemeanor Domestic Violence into a Felony Charge?
Some factors may cause a misdemeanor domestic violence charge to be converted into a felony charge. Common ways this charge can be upgraded include:
- If the abuse becomes more frequent;
- The victim sustains more severe injuries; or
- The defendant was charged with misdemeanor domestic violence in the past.
Other ways a domestic violence charge may lead to a criminal felony charge is when one or more of the following factors is present during the incident:
- Use of a weapon;
- Severe bodily harm or death;
- Ongoing patterns of abuse;
- If alcohol or drugs were involved;
- If the defendant violated a restraining order;
- If a child or minor witnessed the abusive conduct; or
- The defendant is a repeat offender.
It is important to note that these factors may change, and there may be additional elements that cause domestic violence to be charged as a felony, depending on the laws of the jurisdiction of the circumstances of the case.
Are There Any Defenses to Domestic Violence Charges?
There may be some defenses available to domestic violence charges. For example, self-defense may sometimes be used as a defense against a domestic violence charge.
Self-defense may arise when a spouse claims that their actions were done in response to the violent act perpetrated on them first. In this scenario, the individual raising the defense of self-defense must demonstrate that they were not the initial aggressor during the incident.
In addition, the individual must also show that they used a reasonable amount of force against the initial aggressor to defend themselves. The standard criminal defenses will also apply in domestic violence cases.
The defendant, however, will be responsible for showing evidence that supports their asserted defense. The types of criminal defenses that may be available will vary depending on the laws of the jurisdiction or state.
Do I Need to Hire a Lawyer for Help with Domestic Violence Charges?
However, the defendant will be responsible for showing evidence supporting their asserted defense. If you are part of a case involving domestic violence issues, consulting with a domestic violence lawyer for further assistance may be helpful.
Your lawyer can advise you of your case’s possible outcomes based on your state’s laws and protect your rights. If, in the alternative, you have been charged with the criminal offense of domestic violence, you should consult with a criminal defense attorney.
Your lawyer can advise you regarding the potential penalties you may be facing and tell you which defenses may be available.