Domestic violence refers to a single or repeated act of abuse occurring within a home setting. Although domestic violence cases typically involve a violent act committed by one spouse against the other, the term can apply to any situation in which a member of a household is subjected to abusive conduct, such as a relative, a partner, or even a roommate.
This can include both physical acts of abuse (e.g., kicking, hitting, scratching, etc.), and non-physical abusive behavior (e.g., threats, offensive language, and emotional or psychological manipulation).
In addition, domestic violence is an issue that can be raised in either civil or criminal cases. For instance, it often comes up during different types of family law proceedings like divorce, legal separation, and/or child custody. Such matters are generally held in a civil court and are brought by private parties.
On the other hand, domestic violence can also lead to criminal charges and a criminal case. In this instance, the state or government will be the party raising the issue and filing an action against the defendant.
The reason why domestic violence can become a criminal matter is because the defendant’s violent acts frequently result in cyclical or recurring incidents of assault and battery; both of which are criminal offenses. The more times a defendant is charged or convicted, the more likely it is that their actions will lead to a felony offense.
What Factors Classify Domestic Violence as a Misdemeanor?
Domestic violence may be classified as a misdemeanor when it involves a party who uses, attempts to use, or threatens to use physical force against another member of their household. Misdemeanor charges are usually the result of an assault or battery crime.
For example, assault occurs when a person intentionally threatens another individual to the extent that the individual becomes reasonably apprehensive that they are in imminent danger of bodily harm. Thus, a defendant may have committed assault if they scare or threaten someone to the level where the victim believes actual harm will be inflicted on them very soon.
As for the crime of battery, this refers to when a person uses physical force against another that results in offensive or harmful contact and is done without their permission.
One other instance in which an act of domestic violence may qualify as a misdemeanor is when a defendant emotionally abuses their victim. Emotional abuse may consist of verbal abuse, criticism, manipulation, screaming, and making remarks that are upsetting or belittling.
What Factors May Convert a Misdemeanor Domestic Violence into a Felony Charge?
There are several factors that 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 more severe injuries, or the defendant has already been charged with misdemeanor domestic violence.
Some other ways domestic violence can lead to criminal felony charges 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; and/or
- The defendant is a repeat offender.
However, it should be noted that these factors can change and there may be additional elements that constitute a felony depending on the laws of the jurisdiction and circumstances of the case.
What are Potential Penalties for Felony Domestic Violence?
A person who is convicted of domestic violence felony charges can face very serious legal consequences, such as:
- Heavy criminal fines;
- A prison sentence for at least a year or longer;
- Restraining orders;
- Lengthy probation periods; and
- Court mandated rehabilitation courses (e.g., anger management classes or substance abuse).
Aside from these standard penalties, a defendant may also lose certain privileges if they are convicted of felony domestic violence like loss of child custody or visitation rights, inability to get a job or a house, and loss of gun ownership.
Also, the type of punishment a defendant receives will vary by jurisdiction and the circumstances of their case. For example, the punishment for a first offense domestic violence felony is less severe than a defendant who has been charged and convicted of multiple instances of domestic violence felony.
As a general rule of thumb, the more repeat offenses the defendant is convicted of, the longer and more serious of a punishment they can expect to receive. For instance, while a first-time offense may result in temporary loss of child visitation rights, repeated offenses could eventually lead to permanent severance of all parental rights.
Can a Domestic Violence Situation End Up in Civil Court?
Domestic violence cases can be filed in both criminal and civil court. One will not prohibit the other from being filed since criminal and civil courts are considered two separate sovereigns.
In a criminal proceeding, a local prosecutor will decide whether to file charges against an abuser. The purpose of a criminal proceeding is to punish and deter the defendant from committing acts of domestic violence in the future.
In a civil proceeding, however, it is the victim who will bring a case against their abuser (usually an action based in tort law). The reason why the victim may also want to consider filing a civil case is so that they can recover damages for any physical or emotional losses caused by the defendant. They may request damages for items, such as medical bills or lost wages, or potentially obtain an injunction to restrain their abuser from coming near them.
What Should I Do If I am a Victim of Domestic Violence?
The first step a victim of domestic violence should take is to remove themselves from the situation if possible. This may mean temporarily staying with a friend or family member, seeking shelter at a safe house, or finding 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 a criminal investigation regarding the incident. This may include having to answer questions posed by the police or providing evidence of injuries caused by the abuser.
If the police determine there is enough evidence to support a case, they will then submit any findings to the local district attorney or prosecutor’s office. The prosecutor will review the evidence and make a decision as to whether to file criminal charges against the abuser.
A criminal case will require more cooperation and a deeper investigation. As such, the victim should be prepared to supply testimony, medical reports demonstrating prior injuries if possible, and will most likely need to undergo a new medical examination.
If the prosecutor decides not to file charges or the criminal case is unsuccessful, the victim may still file a private civil action to potentially 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 having to move out of a shared marital home or refraining from contacting the victim, until the order expires or a permanent injunction is issued.
- Permanent injunctions: In contrast to restraining orders, permanent injunctions can last indefinitely. This means that the defendant will not be able to make contact or come near the victim again without facing legal consequences like an arrest or jail time.
- Requests for modification of child custody, child visitation, and/or child or spousal support orders: A request for modification of any of these types of orders will usually be granted if a party is convicted for committing domestic violence. This is especially true when the offender is issued a prison sentence.
- 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 family 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 it 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.