Domestic violence is a single or repeated abuse in a home setting. Although domestic violence cases typically involve violence committed by one spouse or romantic partner against the other, the term can apply to any situation in which any household member is subjected to abusive conduct, such as a relative, a friend, or a roommate.
Domestic violence includes both physical acts of abuse (e.g., hitting, kicking, biting, scratching, throwing objects at, etc.) and non-physical abusive behavior (e.g., threats, offensive language, and emotional or psychological manipulation).
Accusations of domestic violence can be brought in both civil and criminal cases. For instance, it often comes up during civil family law proceedings like divorce, legal separation, and child custody disputes.
Domestic violence can also lead to criminal charges. In this instance, the state or county will raise the issue and file an action against the abuser. In a domestic violence case, the prosecutor will charge the defendant with assault and battery, both of which are criminal offenses.
The more times a defendant is charged or convicted, the more likely their most recent actions will lead the prosecution to charge them as felonies.
What Factors Classify Domestic Violence as a Misdemeanor?
Domestic violence charges are filed as misdemeanors unless there are factors that raise the charge to a felony.
Misdemeanor charges are usually the result of the crimes of assault and battery. Domestic assault is when a party uses, attempts to use, or threatens to use physical force against another household member. Assault occurs when a person intentionally threatens another individual to the extent that the individual becomes reasonably afraid that they are in imminent danger of bodily harm.
For example, a defendant will have committed assault if they scare or threaten their spouse to the level where the spouse believes actual harm will be inflicted on them very soon.
As for the crime of battery, this refers to when a person actually uses physical force against another that results in offensive or harmful contact and is done without their permission.
What Factors May Convert a Misdemeanor Domestic Violence into a Felony Charge?
Several factors may convert misdemeanor domestic violence into a felony charge. The most common ways this can happen is if the abuse becomes more frequent, the victim sustains severe injuries, or if this is a repeat offense.
Some other ways domestic violence can lead to criminal felony charges are when one or more of the following factors are present during the abusive incident:
- A weapon was used
- The victim suffered severe bodily harm or death
- There is an ongoing pattern of abuse
- Alcohol or drugs were involved
- The defendant violated a restraining order
- A child or minor witnessed the abusive conduct
These are the most common factors leading to felony charges. It should be noted that these factors can change over time, and additional factors may raise the criminal charges to a felony depending on the laws of the particular jurisdiction and circumstances of the case.
What are the Potential Penalties for Felony Domestic Violence?
A person who is convicted of domestic violence felony charges can face very serious legal consequences, such as:
- A prison sentence for at least one year or longer
- Heavy criminal fines
- Issuance of a restraining order
- A lengthy period of probation
- A court-mandated rehabilitation course (e.g., anger management classes or substance abuse treatment).
Aside from these standard penalties, a defendant may also lose certain privileges if convicted of felony domestic violence. This includes the possible loss of child custody or visitation rights, the inability to buy or possess a gun, and great difficulty getting a job or an apartment.
As a general rule of thumb, the more repeat offenses the defendant is convicted of, the longer and more serious punishment they can expect. For instance, while a first-time offense may result in temporary loss of child visitation rights, repeated offenses could eventually permanently sever all parental rights.
Can a Domestic Violence Situation End Up in Civil Court?
Domestic violence cases can be filed in both criminal and civil courts. It is possible to file in both types of courts simultaneously. The prosecutor will guide the criminal case against the abuser, and a private attorney will guide the civil case. Filing one of these claims will not prohibit the other from being filed since criminal and civil courts are considered two separate sovereigns.
In a civil proceeding, the victim will sue for monetary damages under the legal theory of tort law. The victim may also want to file a civil case to recover monetary damages for any losses caused by the defendant. They may request damages for items such as medical bills and lost wages, and they can potentially obtain an injunction to restrain their abuser from coming near them.
What Should I Do If I Am a Victim of Domestic Violence?
A victim of domestic violence’s first step is to remove themself from the situation if possible. This may mean temporarily staying with a friend or family member, seeking shelter at a public safe house, or finding other ways to avoid the abuser.
Once the victim reaches a place where they feel safe from harm, they should call the police and report the incident. Filing a police report allows law enforcement to arrest and potentially charge the abuser.
If the abuser is charged, the victim should be ready to cooperate in the criminal investigation by answering questions posed by the police and providing any evidence of injury.
If the police determine enough evidence to support a case, they will submit their findings to the local district attorney’s office for prosecution. The prosecutor will review the evidence and decide whether to file criminal charges against the abuser.
If the prosecutor decides not to file charges or the criminal case is unsuccessful, the victim may still file a private civil action to recover damages for any harm done.
What Protections and Remedies are Available for Domestic Violence Victims?
There are several types of protections and remedies available for domestic violence victims. Some of these include:
- Restraining orders: These are temporary orders issued by a judge that require an abuser to maintain their distance from the victim. This may mean the defendant must move out of a shared marital home. A restraining order typically also requires the defendant to refrain from contacting the victim by phone, mail, text, etc., until the restraining order expires.
- Permanent injunctions: Like a restraining order, a permanent injunction will require the abuser to maintain a specific distance from the victim and refrain from contacting the victim. In contrast to restraining orders, permanent injunctions can last indefinitely. If the defendant violates the permanent injunction by coming too close to the victim or harassing them, the defendant will face legal consequences like an arrest, fines, or jail time.
- Requests for modification of child custody, child visitation, and child or spousal support orders: A request for modification of any of these orders will usually be granted if a party is convicted of committing domestic violence.
- Civil lawsuits: As previously discussed, a victim may seek monetary damages by filing a civil lawsuit against their abuser in a civil court.
Do I Need an Attorney for Help with Domestic Violence Issues?
Domestic violence claims are very serious legal matters. Thus, you may want to consider hiring a local domestic violence lawyer if you want to file a civil action based on a domestic violence incident. Your attorney can help you prepare your case, gather evidence, and ensure that the case is filed before your state’s applicable statute of limitations expires. Your attorney can also represent you in court and assist you in recovering any damages that you are rightfully owed.