Misdemeanor Domestic Violence

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 What is Domestic Violence?

Domestic violence is physical or sexual violence that is perpetrated by a spouse, roommate, person who has a child with the victim, boyfriend, date, the person who resides in the same household, or has some other type of relationship that fits under the criminal domestic violence statute. Sometimes it is domestic violence between people who have a former relationship, such as an ex-spouse, ex-boyfriend, or anyone who used to live together.

Domestic violence consists of physical attacks, including pushing, shoving, throwing objects at someone, hitting someone with an object, punching, slapping, choking, raping, or sexually assaulting the victim. Domestic violence crimes usually comprise acts that are considered assault, battery, or sex crimes.

For instance, Pennsylvania law defines domestic abuse as knowingly, intentionally, or recklessly causing bodily injury of any kind, causing fear of bodily injury of any kind, assault, rape, sexually abusing minor children, or knowingly engaging in repetitive conduct toward a certain person that places them in fear of bodily injury. These acts can take happen between family or household members, sexual partners, or those who share biological parenthood to qualify as domestic abuse.

How Are Domestic Violence Cases Processed?

Due to the swiftness of arresting someone for domestic violence accusations, it can be challenging for a defendant to protect his or her rights. Some jurisdictions have mandatory jail stays for people accused of domestic violence. Many jurisdictions permit immediate protection orders, which can force an alleged abuser out of a shared residence. Once the case has been referred to the prosecutor, he or she has the right to move forward with the charges or dismiss the case.

Even if the victim refuses to cooperate, the prosecutor can move forward if he or she believes that they can still defend the case without the victim’s assistance. The prosecutor may have other evidence, such as pictures of the victim’s injuries, witness statements, a 911 call recording, or other credible evidence that may not warrant the victim’s assistance.

Furthermore, the prosecutor has the choice of filing a case as either a felony or a misdemeanor. Misdemeanor crimes generally have a maximum sentence of up to one year in jail and payment of a fine. Many jurisdictions mandate that alleged abusers participate in a domestic violence intervention program or anger management classes. Defendants may be subject to having to complete community service, pay a fine and abide by a protection order.

Lastly, felony convictions carry many of the same punishments as misdemeanor charges. But, the penalties tend to be stricter. Prison sentences can be longer, more community service hours may be ordered. and fines may be higher.

What Qualifies as a Misdemeanor of Domestic Violence?

According to the U.S. Department of Justice, a “misdemeanor crime of domestic violence” is an offense that:

  • Is a misdemeanor under federal, state, or tribal law;
  • Has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon; and
  • Was committed by a current or former spouse, parent, or guardian of the victim, by an individual with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim.

However, a person is not considered to have been convicted of a misdemeanor crime of domestic violence unless:

  • The person was represented by counsel in the case, or knowingly and intelligently waived the right of counsel in the case; and
  • In the case of a prosecution for which a person was entitled to a jury case was tried, either,
  • The case was tried by a jury, or
  • The person knowingly and intelligently waived the right to have the case tried by a jury, by guilty plea, or otherwise.

Additionally, a conviction would not be disabling if it has been set aside, or if an offense for which the person has been pardoned or has had civil rights restored. Unless the pardon, expunction, or restoration of civil rights states that the person may not ship, transport, possess, or receive firearms, and the person is not otherwise prohibited by the law of the jurisdiction in which the proceedings were held from receiving or possessing firearms, it is still permitted.

When a victim calls law enforcement and makes an allegation that a member of his or her household has committed a violent act against them, the police that respond are mandated to make an arrest. Then, it is the prosecutor’s discretion whether or not to press charges. It is important to note that the victim in the situation cannot decide to drop charges. To further reiterate, a crime is considered a domestic violence misdemeanor under federal law if it:

  • Can be defined as a misdemeanor under federal or state law; and
  • Involves physical violence or force, or includes threats made with a deadly weapon; and
  • Was committed by:
    • a current or former spouse;
    • a parent or guardian of the victim;
    • a person with whom the victim shares a child;
    • a person living with the victim as a spouse, parent, or guardian; or
    • a person who has a similar relationship with a spouse, parent, or guardian of the victim.

Keep in mind that the crime does not have to specifically mention “domestic violence” for it to be labeled as a domestic violence misdemeanor, and for the federal firearm law to apply. The relationship that the victim has with the offender is what rules whether or not the misdemeanor is a “domestic violence” misdemeanor. States can vary on the technicalities of the definition of domestic violence misdemeanor.

For instance, the definition of a domestic violence misdemeanor under Colorado law is separate from that under federal law. Specifically, Colorado lists domestic violence as taking place between “intimate partners” and not in a parent-child relationship. However, to interpret federal law, the federal law definition holds priority.

How are Arrests Carried Out for Domestic Violence?

Recently, there has been a heightened awareness of domestic violence, many law enforcement agencies now are taking calls regarding domestic violence seriously. Law enforcement may be dispatched to the defendant’s location immediately. They may be immediately arrested with little or no investigation.

Keep in mind that even when the victim has no signs of injuries and no credible evidence is available, such an arrest may take place. Furthermore, there does not need to be any witnesses that can substantiate the victim’s claims. Instead, the police solely rely on the word of the victim in some cases.

The prosecutor often determines the number of factors when deciding whether to charge the defendant with a misdemeanor or felony. He or she may consider the severity of the injuries that the victim suffered. Additionally, they may review any prior reported incidents of abuse by the victim or others against the alleged abusers. Moreover, the prosecutor can assess whether the defendant has any other prior convictions.

When Do I Need To Contact a Lawyer?

If you have concerns about seeking help in a domestic violence situation it is highly suggested to contact your local family law attorney to guide you in the process. If there is an immediate risk of danger to you or your children, you should seek law enforcement’s assistance right away.

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