Monthly Archives: October 2016
Domestic violence is physical or sexual violence that is perpetrated by a spouse, roommate, person who has a child with the victim, boyfriend, date, person who lives in the same household or has some other type of relationship that falls 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 people who used to live together.
Domestic violence includes 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 generally comprise acts that are otherwise considered assault, battery or sex crimes.
Domestic violence is taken very seriously. However, making these accusations in a false manner is common. A false allegation of this nature may be due to a bitter breakup or because someone wants to come out ahead in a divorce or child custody case. It is vital that someone who is facing false allegations get immediate legal assistance in order to quickly build a defense against the accusations. The case usually starts with a hearing for a temporary order of protection. A criminal defense lawyer can represent the defendant at this hearing in order to prevent an order being issued that is based on false allegations.
Arrests for Domestic Violence
Due to the heightened awareness of domestic violence, many law enforcement agencies take calls regarding domestic violence very seriously. Law enforcement may be sent to the defendant’s location immediately. He or she may be quickly arrested with little or no investigation. Even when the victim has no signs of injuries and no credible evidence is available, such an arrest may occur. There may be no witnesses that can substantiate the victim’s claims. Instead, law enforcement often solely relies on the word of the victim.
Processing of Domestic Violence Cases
Due to the swiftness of arresting someone for domestic violence accusations, it can be difficult for a defendant to protect his or her rights. Some jurisdictions have mandatory jail stays for people accused of domestic violence. Many jurisdictions allow for immediate protection orders, which can force an alleged abuser out of a shared home. Once the case has been referred to the prosecutor, he or she has the decision to move forward with the charges or dismiss the case. Even if the victim refuses to cooperate, the prosecutor may still move forward if he or she believes that he or she can still make the case without the victim’s assistance. He or she 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 necessitate the victim’s assistance.
Felony or Misdemeanor Charges
The prosecutor often has the choice of filing a case as either a felony or a misdemeanor. Misdemeanor crimes usually have a maximum sentence of up to one year in jail and payment of a fine. Many jurisdictions require alleged abusers to participate in a domestic violence intervention program or anger management classes. Defendants may also be subject to having to complete community service, pay a fine and abide by a protection order.
Felony convictions carry many of the same punishments as misdemeanor charges. However, the penalties tend to be stiffer. Prison sentences may be longer. More community service hours may be ordered. Fines may be higher.
Assault and Battery
Although the charges of assault and battery are often discussed interchangeably, they are actually two different offenses. Battery generally means that there has been some type of unwanted and offensive contact. There must be some form of touch, whether through a shove, punch, slap or hit, to be classified as a battery.
In contrast, assault is committed when a person makes an unlawful threat by word or act to inflict violence on another. There does not have to be actual contact in order for assault to occur and criminal charges can arise nonetheless.
In order for an assault to occur, the words used must be more than a mere threat. Instead, the words must be coupled with the ability for the offender to carry through with the threat and the actual act. For example, if the offender says that he or she is going to hurt someone else and swings a punch at the intended victim, the offender has demonstrated his or her intent to follow through with the act and the ability to perform the act even if no contact was made. Even if the offender is not able to injure another, he or she may still face assault charges based on the intent to harm the victim.
Additionally, the threat must be based on potential imminent harm and cannot be based on a speculative harm in the future. The threat must be one that creates a well-founded fear in the victim.
Aggravated assault charges are based on the same basic elements as simple assault. However, there are other factors present in the case that justify elevating the charge. The elevation depends on state law. It may include such factors as having a deadly weapon at the time the threat is made, the characteristics of the victim, the degree of assault and the defendant’s prior criminal history. In Florida, aggravated assault occurs when the defendant commits an assault and uses a deadly weapon during this assault with the intent to commit a felony. A deadly weapon may be one that can be used to present a great danger or that could cause serious harm. It may include a knife or a gun. However, it may include more innocuous item such as bleach or another form of potential poison.
Florida’s felony offense requirement includes a number of different crimes, including rape, stalking, domestic violence or other felonies.
The potential penalties that a person may face depends on whether the charge is for assault or aggravated assault. Additionally, whether the crime is considered a misdemeanor or felony impacts the potential penalties. For example, simple assault is often charged as a misdemeanor offense. The potential penalty for a misdemeanor is up to a year in jail. However, some jurisdictions may further limit the term of imprisonment. In Florida, the potential penalty for a simple assault charge is a jail term of up to 60 days and a fine up to $500.
Domestic violence is defined under state law. It usually includes unwanted physical force used against someone. There is usually a mens rea that requires intentional contact rather than accidental contact. Additional, what makes the offense domestic battery rather than simple battery is that the perpetrator and the victim have some type of relationship. This relationship is also defined under state law. It may include people in a current romantic relationship, such as in a dating relationship or current or former spouses. Alternatively, it may involve people living in the same household or former roommates regardless of any lack of familial or legal relationship. It may also concern co-parents of the same child.
Domestic battery is typically defined as deliberate contact that is violate or aggressive. It may include pushing, shoving, choking, throwing an object at the victim, punching, slapping, kicking or any other type of offensive touching. It may include physical abuse or sexual abuse. Threatening abuse is also considered domestic violence.
Proof of Injury
In some jurisdictions, there must be some proof of injury before charges can be brought or before a misdemeanor charge can be elevated to a felony charge. In other jurisdictions, there does not have to be an actual injury in order for the crime to be charged.
Way Domestic Battery Is Charged
Domestic battery may be charged in a number of ways depending on the jurisdiction. It may sometimes be charged as a misdemeanor. It may also be charged as a number of different degrees as a felony charge. The prosecutor often has the discretion to choose how to charge the defendant. This decision is often made by evaluating a number of factors, including the severity of the injuries inflicted, other reports of domestic violence, the alleged abuser’s prior criminal history and whether a deadly weapon was used.
The type of charge is tied directly to the type of crime charged. For example, in Nevada a misdemeanor is punishable by between two days and six months of incarceration, a fine between $200 and $1,000, 48 to 120 hours of community service and completion of a domestic violence intervention program at the defendant’s expense. In contrast, a third offense of domestic battery that has been committed within the past seven years coincides with a Class C felony in Nevada which is punishable by between one to five years imprisonment and fines up to $10,000. The other penalties may still be imposed. A Class B felony is charged when a deadly weapon is used in conjunction with the offense.