When a member of a family or household commits spousal abuse or child abuse or another type of mistreatment against another, we refer to it as domestic violence. The law covers abuse against all members of a household, including married and unmarried couples and their children, as well as same-sex couples. Anyone can become a victim or perpetrator of domestic violence, a crime that often involves repetitive psychological and or physical abuse that usually follows a "cycle of abuse".
While domestic violence typically involves pushing, slapping and stalking, rape and murder may also be forms of domestic violence. Some of the more typical definitions of domestic violence include:
- Emotional abuse - A systematic breaking down of the victim's self-esteem and self-worth.
- Physical abuse - Shoving, punching, biting, kicking, hitting and battering, as well as any other violent behavior inflicted upon the victim.
- Sexual abuse - Coercing or attempting to coerce the victim into sexual contact or performing sexual behavior on the victim without consent.
- Economic abuse - Forcing a person to become financially reliant.
California legislature considers domestic violence a serious offense, and several statutes have been enacted to encompass a wide range of factors that constitute this crime including abuse, battery, assault, threatening or stalking a domestic partner, fiance, spouse, ex-spouse, cohabitant or family member. Sentences for assaults that occur between strangers are often much lighter than that of domestic violence.
Domestic violence charges are severe enough to result in prison or jail time, fines, probation, community service and counselling and it is therefore important to seek legal counsel from an experienced criminal defense lawyer as soon as possible.
Domestic Violence Charges in California
In California, the victim does not have to report an incident for domestic violence charges to be brought against an alleged perpetrator. These charges typically stick, even if the alleged victim requests for it to be dropped. However, a defense attorney can help negotiate for the felony charge to be reduced to a misdemeanor charge.
Domestic violence charges are typically initiated when an alleged victim calls 911 claiming that a family member or domestic partner has physically assaulted him or her. Most often, police officers will take photographs of injured parts of the victim's body as evidence of abuse. The victim will have to provide statements, as will witnesses and the alleged perpetrator.
The following evidence will be sent to the unit of the prosecutor's office that handles these types of cases:
- a recording of the 911 call
- photos of the injuries
- statements from the victim, perpetrator, and witnesses
- incident report prepared by the arresting officer.
Penalties for Domestic Violence
If you have been investigated for or charged with domestic violence, you may be wondering what the penalties might be should you be convicted.
In recent years, California has instituted tough penalties on individuals who have been convicted of sex crimes and domestic abuse. Typically, the courts and prosecutors will consider the severity of the injuries when deciding on the punishment for the crime.
Offenses relating to domestic violence may be classified either as a misdemeanor or a felony. In the event that the charges against you are considered a felony, you will receive a strike under California's Three Strikes Law.
Additionally, the victim will most likely be able to obtain a protection order from the court against you. If you are convicted of domestic violence, the victim may file a civil suit against you to obtain compensation for any injuries he or she sustained.
A domestic violence conviction may have many collateral consequences. In addition to the emotional trauma your family will face, there is stigma that will affect your social life. If your employer becomes aware of the arrest, charges and your conviction, you may lose your job. Employers tend to be reluctant about retaining and hiring individuals who are judged unable to control their temper, and this could destroy your career.
In addition, the court may require that you attend a 52-week batterers class.
Domestic Violence Defenses in California
It is important to obtain legal counsel as soon as you become aware of the fact that you are being investigated or arrested for domestic violence. It is your constitutional right to have a lawyer present when you are being questioned.
Experienced criminal defense lawyers know that someone may be charged for domestic violence for many different reasons. Based on the specifics of your case, you will be provided with a suitable defense. Your attorney will examine the evidence to determine whether you have a case, and how strong it is. During this process, the attorney will look at the evidence report to see whether it supports a specific defense and whether the evidence is consistent with the alleged victim's claim.
In many cases, emotional issues in a relationship can cause a person to falsely accuse his or her partner of domestic violence. When one partner becomes angry or frustrated in a relationship, it could cause him or her to make false accusations of an assault of physical attack.
In many cases, law enforcement officers' investigations of a crime fail to provide sufficient evidence that a crime took place. It is not unusual for an accuser to be extremely emotional, and that might influence the veracity of their response to inquiries.
Some of the questions your attorney will ask - or the issues he or she will consider - might include:
- Whether the 911 recording supports or undermines your case.
- Whether other witnesses were present and interviewed at the scene and whether their statements support your claim.
- The freshness of the victim's wounds and the state of his or her clothing, i.e. were the clothes ripped and did it show any signs of blood or a struggle?
- Your emotional state and that of the alleged victim.
- Do you have a history of domestic or other violence against the alleged victim or other people?
- Are your statements to the police consistent with the chosen defense strategy?
- Does the police have evidence that may undermine your claim?
- Does your version of events match that of the officer?
- Is there any evidence that your or your alleged victim was intoxicated or under the influence of drugs or alcohol?
Depending on the information you have provided and the evidence gathered from the various parties, your attorney will prepare a defense. Some of the most common defenses offered in domestic violence cases include:
Someone else committed the crime
If you choose this defense, you will have to provide a watertight alibi that you were not at or near the scene.
It was self-defense
You may claim that you defended yourself or your children in which case the court will consider whether:
- the alleged victim admits to the violence and the reasons for doing so.
- the police asked for your version of events.
- the victim's injuries were consistent with your version of events.
- consistency and inconsistencies of the evidence.
- your statements are consistent with your claim of self-defense.
It is a lie
If you claim that your spouse or partner lied about the domestic violence out of anger, the courts will consider the source of the evidence and whether the injuries are consistent with your version of events.
It was an accident
You could claim that you never meant to hurt the alleged victim, but that it was an accident. Your version of events will be carefully investigated and measured against the evidence provided.
The victim won't testify that you did it
If you feel that it doesn't matter whether you committed the crime because the victim won't testify, the court will consider:
- whether the state's case hinges on the victim's testimony
- whether the defendant's injuries were defensive only
It was provoked
If the victim has anger issues or a mental illness, or did something else to provoke you into domestic violence, your lawyer will consider whether the arrest report let the prosecutor with a he said / she said situation. Ideally, the police should have collected corroborating evidence.
You committed the offense, but the police messed up the investigation
Police officers must have probable cause to conduct a search, unless there are exigent circumstances. They must ask you to provide an account of events before placing you under arrest and in the case of domestic violence, they must do a thorough self-defense determination.
Additionally, they must collect and inventory any physical evidence at the scene, including witness statements. The police report must provide a full description of the incident, in addition to supporting observations.
Officers must provide a correct Miranda warning and a Scales tape before conducting a custodial interrogation. They must also honor your request for counsel.
The police may not continue questioning you once you invoke your right to remain silent.
If one or more of these requirements were unmet, it may provide grounds for a counterclaim, which may in turn reduce charges against you or may result in the case being thrown out entirely.
Felony Charges in a Domestic Violence Case
When faced with domestic violence charges, you may be tried for:
- spousal battery (a misdemeanor)
- corporal injury to a spouse (a felony)
Although all considered domestic abuse, spousal abuse, corporal injury on a spouse and spousal battery all carry different penalties. By law, domestic violence is defined as bodily injury that is inflicted on your current spouse, former spouse, parent of your child, or cohabitant. In most cases, prosecutors charge domestic violence as misdemeanor offenses. However, charges may be escalated to a felony if:
- the perpetrator has previous domestic violence convictions
- the perpetrator has been convicted for other crimes in the past
- the victim sustained serious bodily injury
- the victim was sexually assaulted
- a minor was injured or sexually assaulted.
If the injuries you inflicted upon your spouse result in trauma, corporal injury to a spouse will be brought against you. Injuries or wounds - even if it is only slight bruising - can be considered a traumatic condition, but emotional distress is not relevant to this aspect of the case. In order to be convicted, the prosecutor must prove that you had intended to commit domestic violence.
Spousal battery is the unlawful and willful use of violence against a cohabitant or spouse. No visible injuries are required for someone to be charged with spousal battery.
Domestic Violence Penalties in California
Someone who is charged with a domestic violence felony may spend as much as four years in a state prison. In cases of serious injuries, the sentence could be extended. In addition to imprisonment, the convicted perpetrator may be required to attend domestic violence classes.
If this is not your first act of domestic violence, attempted assault, assault with a weapon or sexual assault in the last seven years, the minimum sentence may be five years. In addition, you may be fined as much as $10,000. This sentence can be harsher depending on your criminal history.
Consecutive prison sentences may even be added if the victim suffered severe bodily injuries.
If you are convicted of a domestic violence misdemeanor, you may be fined $2,000 in addition to a sentence of up to a year in county jail.
In some cases, an experience defense attorney might be able to have the charges against you reduced so that you don't have to go to prison and to drop the fees. A probationary sentence may be granted, in addition to counselling.
The implications of a domestic violence charge can have a severe impact on your life beyond fines, counselling, probation, community service and jail or prison time. Domestic violence charges go on a person's criminal record, which can make it difficult to find employment. The community's opinion of you will also impact on how you are perceived, and the stigma will affect your life in many different ways. You may also be prohibited from ever making contact with the alleged victim or visiting their home.
Contact Our Top Rated Criminal Attorney
Seeking professional legal advice early on during the investigation is key to protecting your constitutional rights and maintaining a reasonable standard of life. Contact the Law Offices of Jonathan Franklin today at 310-273-9600 for an initial case assessment today.