The Reality Of Domestic Violence Charges

According to the Virginia Sexual and Domestic Violence Action Alliance, domestic violence is defined as “[a] pattern of abusive behaviors used by one individual intended to exert power and control over another individual in the context of an intimate or family relationship.” The Virginia Code defines “domestic violence” as any of the following act against a family or household member: (1) Physical harm, attempted actual or threatened. (2) causing severe emotional distress, psychological trauma, or sexual assault; (3) placing a person in reasonable fear of bodily injury or physical harm; (4) Subjecting another person to false imprisonment; or (5) damaging property so as to intimidate or attempt to control the behavior of another person.

In 2012, there were 20,718 domestic violence arrests in Virginia. Of the charges filed, 5,433, or 26%, resulted in convictions. Felony convictions for assault and battery against family or household members increased by 95% from 2011 to 2012. 21% of all domestic victims reported that the perpetrator used a weapon (including a firearm) against the victim. Sadly 32% reported that they had to relocate or become homeless as a result of the domestic violence.

In light of these statistics, Virginia courts and the law of the Commonwealth take domestic violence charges very seriously. Virginia is a mandatory arrest state. In other words when a police officer responds to a domestic violence call and sees some evidence of an assault he is required by law to make an arrest. This law has dramatic consequences. Very frequently when a couple is embroiled in a heated argument one person will call the police "to get the other person to leave" or resolve a dispute. The police are not referees. If the police show up to a domestic dispute somebody is usually going to jail.

Many people mistakenly believe that after a domestic arrest the complaining witness or victim can simply go to the prosecutor or court and "drop" the charges. This is far from true in Virginia. Often times the Commonwealth's Attorney will force a witness to testify against their will, under the threat of perjury, contempt, or other criminal charges.

Many others think that a defendant can avoid a conviction if the victim simply skips court. This is a bad thought for several reasons. First, a witness exposes herself to prosecution if she ignores a summons to appear in court. Second, in some situations the Commonwealth can obtain a conviction even when the victim does not come to court. If the defendant admitted the crime, or other witnesses see the violence or injuries to the victim, the prosecution only needs "slight corroboration" of the crime to attain a conviction. This corroboration could be ripped clothes, visible injuries to the victim or physical signs of a struggle.

It is also important to realize that domestic cases are heard in special domestic relations courts. Domestic courts have different practices and procedures than other courts. Judges and prosecutors in these courts receive special training in domestic matters and as a result there is a heightened sensitivity to domestic crimes heard in these courts. The maximum punishment for domestic assault is 12 months in jail. Domestic judges frequently impose active jail sentences.

FIRST OFFENDERS PROGRAM: § 18.2-57.3

The Virginia Code explicitly provides for a first offender resolution for domestic violence cases. The code states that a court may defer disposition for persons charged with first offense of assault and battery against a family or household member. An effective defense attorney can convince a prosecutor or a judge to take a first time domestic offender's case under advisement. This means that after a specified period of time, the charge will be dismissed and the defendant will be found not guilty.

The relatively low conviction rate mentioned above illustrates that domestic violence cases can be successfully defended. Strong defenses can expose problems such as reluctant witnesses, conflicting testimony or absent witnesses. Legal practice in domestic courts is a very nuanced process. Accordingly any person charged with domestic assault should consider an attorney with specific experience handling this unique type of criminal charge.

Categories: Domestic Violence
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