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As a local defense attorney, I have seen the incidence of domestic violence prosecutions increase dramatically in the past several years. Public awareness of this issue has also
increased due in part to information provided by local women’s/family advocacy groups. Even so, I find many people have misconceptions about domestic violence and its criminal consequences.
Domestic abuse is defined as (1) the intentional infliction of physical pain, physical injury or illness, (2) the intentional impairment of a physical condition, (3) first, second or third degree sexual assault, or (4) a physical threat to commit any of those acts. The act must be committed against a spouse or former spouse, against one with whom the person resides or formerly resided or against one with whom the person has a child in common. There is no requirement that the persons be married, be currently living together, or even be of different gender. If two college roommates were to become involved in a fist fight, they could be charged with a domestic abuse crime.
Once law enforcement is called to the scene, the officer is required to make an arrest if two factors exist; (1) reasonable grounds to believe that the person has committed a criminal act of domestic abuse and, (2) either evidence of physical injury or a reasonable basis to believe continued domestic abuse is likely.
After the arrest and upon release from jail, the person may be prohibited from returning to the victim’s residence and from having any contact with the victim for 72 hours after the arrest. “No contact” means no contact in person, by phone, by letter or even through a third person. This prohibition may be waived by the victim.
The officer is required to make a report of the incident which is then sent to the district attorney who has the power to charge any appropriate crime. Charges can range from disorderly conduct, to battery, to substantial (felony) battery or false imprisonment, also a felony. Sentences upon conviction can be probation, some county jail time or even prison. In addition, the federal Gun Control Act prohibits the possession of a firearm or ammunition by a person convicted of a “misdemeanor crime of domestic violence.”
Domestic violence is no longer overlooked or taken lightly. The law in most cases requires an arrest and prosecution and the consequences of conviction can be substantial. If you are charged with domestic violence, do not hesitate to consult an attorney. |