Domestic Violence and Domestic Abuse

Posted by Chris Morales on Mon, Mar 03, 2014 @ 11:56 AM

Domestic violence crimes are characterized by physical abuse and threats between two people who are in a close familial or social relationship. This article defines domestic violence, looks at common issues in criminal cases related to domestic violence incidents, and provides tips on stopping domestic violence.

What Is Domestic Violence?

Domestic violence is a catch-all term for violence that occurs between people who are related or who have a social relationship. They may be married, living together, or even just dating. They may be heterosexual, lesbian, or gay. While anyone can become a domestic violence perpetrator or victim, serious injuries resulting from domestic violence typically result from males attacking females. Though  murder and rape can be forms of domestic violence, most often domestic violence consists of lesser forms of physical abuse such as slapping and pushing. Stalking can also be a form of domestic violence.

Is There a Crime Called "Domestic Violence"?

Many states define domestic violence as a distinct crime. As a result, a suspect who strikes a significant other may be charged with domestic violence instead of (or in addition to) other crimes such as assault and battery. Recognizing that domestic abusers take advantage of their victims' trust and confidence, after a conviction for domestic violence prosecutors often push for sentences that are harsher than those that might be sought for assault-type crimes involving two strangers, and those sentences typically include special protections for past (and potential) targets of domestic abuse. For example, conviction of a crime of domestic violence may entail a mandatory jail sentence and some type of restraining order (more on this below). Also, since an abuser's relationship with a victim may be a continuing one, identifying a crime as one of domestic violence allows judges to order abusers to participate in therapeutic counseling.

Here's one example of a state that defines domestic violence as a distinct crime: In Wisconsin, "domestic violence" is defined as an offense committed by an adult against another adult that he or she lives with, has lived with, or shares a child with involving intentional infliction of pain, illness or injury, or intentional impairment of physical ability, or any type of sexual assault, or a physical act that would cause a reasonable person to fear for his or her safety.

Charging and Prosecuting Domestic Violence: Special Challenges

Police and prosecutors face two common problems when it comes to arresting, charging, and prosecuting domestic violence.

First, victims of domestic violence are often reluctant to report the abuse. Abuse victims may hope that the abuse was an isolated act that will not be repeated. Or they may be fearful that reporting the violence will only goad their attacker into further violence. If a woman and her children are dependent on their abuser's income, the mother may fear that reporting the violence will result in loss of financial support. Understandable though such reactions may be, the result is that most crimes of domestic violence go unreported.

The second difficulty with prosecuting domestic violence cases is that even when victims of domestic violence report attacks to the police, victims often refuse to testify against their attackers at trial. As defendants have a constitutional right to confront and cross-examine their accusers, prosecutors usually cannot offer domestic violence victims' statements to the police into evidence in lieu of the victims' actual testimony in court. As a result, prosecutors must sometimes dismiss domestic violence charges. The combination of failing to report and refusing to cooperate with prosecutors makes domestic violence one of the hardest crimes to successfully prosecute.

Rules That Help Prosecutors Convict Domestic Violence Offenders

Some states (including California) have special rules for domestic violence cases that allow prosecutors to offer evidence that defendants charged with domestic violence have committed other acts of domestic violence. These rules are an exception to the general rule that prosecutors can't offer evidence of defendants' criminal history.

Also, if an abuser attacks or threatens a victim for the purpose of frightening the victim into refusing to testify at trial, the abuser waives (gives up) the right to confront and cross-examine the victim at trial, and police officers may testify as to the victim's pretrial description of what happened.

Help for Domestic Violence Victims

Many localities have domestic violence hotlines. People who fear becoming victims of domestic violence should always know how to contact a domestic violence hotline. People who have been subjected to domestic violence may also go to court and secure a protective order or restraining order, which often prohibits the abuser from coming into contact with or even being in close proximity to (i.e. 500 feet) the domestic violence victim. An abuser who violates the terms of a restraining order (for example, by showing up at a victim's home or place of work) may be arrested and charged with a crime. Since many domestic violence victims call 911 for assistance, it may help to know that statements made to 911 operators may be admissible in court to prove that a domestic abuser is guilty. Finally, a federal gun control law makes it a crime for people who have been convicted of crimes involving domestic violence to own guns.

If you need help with a domestic violence situation, the websites for these organizations are a good first step toward getting the assistance you need:

A Convicted Domestic Violence Offender Can't Own a Gun

Since many domestic abusers are recidivists, Congress passed a law making it a federal crime for people convicted of domestic violence to own a gun (18 U.S.C. 922(g)(9)), hoping to reduce the injuries that repeat domestic violence offenders might inflict. The U.S. Supreme Court upheld the law in the case of United States v. Hayes (2009), ruling that the law applied to any conviction based on an act of domestic violence, even if a defendant was not convicted explicitly of the crime of domestic violence.

The Morales Law Firm would like to thank NOLO for sharing this information with us. 

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Tags: California, murder, rape, strikes, assault, domestic violence, crime, violence