Practice Areas

Domestic Violence and Allegations of Abuse

Domestic violence can give rise to both criminal and civil proceedings.   Criminal proceedings are instituted after a family or household member of an alleged abuser files a complaint with law enforcement.  There are also civil remedies, most prominently the protective order, that can be issued by the Courts to address domestic violence and abuse.

In Virginia, domestic violence is considered a separate specific crime.

Ҥ 18.2-57.2. Assault and battery against a family or household member; penalty
A. Any person who commits an assault and battery against a family or household member is guilty of a Class 1 misdemeanor.

B. Upon a conviction for assault and battery against a family or household member, where it is alleged in the warrant, petition, information, or indictment on which a person is convicted, that such person has been previously convicted of two offenses against a family or household member of (i) assault and battery against a family or household member in violation of this section, (ii) malicious wounding in violation of § 18.2-51, (iii) aggravated malicious wounding in violation of § 18.2-51.2, (iv) malicious bodily injury by means of a substance in violation of § 18.2-52, or (v) an offense under the law of any other jurisdiction which has the same elements of any of the above offenses, in any combination, all of which occurred within a period of 20 years, and each of which occurred on a different date, such person is guilty of a Class 6 felony.

C. Whenever a warrant for a violation of this section is issued, the magistrate shall issue an emergency protective order as authorized by § 16.1-253.4, except if the defendant is a minor, an emergency protective order shall not be required.

D. The definition of “family or household member” in § 16.1-228 applies to this section.”

There are specific “elements” that must be proved beyond a reasonable doubt, before a person (presumed to be innocent) may be found guilty of domestic violence or more technically assault and battery on a family or household member. And there are specific final outcomes that are unique to domestic violence case:

Ҥ 18.2-57.3. Persons charged with first offense of assault and battery against a family or household member may be placed on local community-based probation; conditions; education and treatment programs; costs and fees; violations; discharge
A. When a person is charged with a violation of § 18.2-57.2, the court may defer the proceedings against such person, without a finding of guilt, and place him on probation under the terms of this section.

B. For a person to be eligible for such deferral, the court shall find that (i) the person was an adult at the time of the commission of the offense, (ii) the person has not previously been convicted of any offense under this article or under any statute of the United States or of any state or any ordinance of any local government relating to assault and battery against a family or household member, (iii) the person has not previously had a proceeding against him for violation of such an offense dismissed as provided in this section, (iv) the person pleads guilty to, or enters a plea of not guilty or “nolo contendere” and the court finds the evidence is sufficient to find the person guilty of, a violation of § 18.2-57.2, and (v) the person consents to such deferral.

C. The court may (i) where a local community-based probation services agency established pursuant to Article 9 (§ 9.1-173 et seq.) of Chapter 1 of Title 9.1 is available, order that the eligible person be placed with such agency and require, as a condition of local community-based probation, the person to successfully complete all treatment, education programs or services, or any combination thereof indicated by an assessment or evaluation obtained by the local community-based probation services agency if such assessment, treatment or education services are available; or (ii) require successful completion of treatment, education programs or services, or any combination thereof, such as, in the opinion of the court, may be best suited to the needs of the person.

D. The court shall require the person entering such education or treatment program or services under the provisions of this section to pay all or part of the costs of the program or services, including the costs of any assessment, evaluation, testing, education and treatment, based upon the person’s ability to pay. Such programs or services shall offer a sliding-scale fee structure or other mechanism to assist participants who are unable to pay the full costs of the required programs or services.

The court shall order the person to be of good behavior for a total period of not less than two years following the deferral of proceedings, including the period of supervised probation, if available.

The court shall, unless done at arrest, order the person to report to the original arresting law-enforcement agency to submit to fingerprinting.

E. Upon fulfillment of the terms and conditions specified in the court order, the court shall discharge the person and dismiss the proceedings against him. Discharge and dismissal under this section shall be without adjudication of guilt and is a conviction only for the purposes of applying this section in subsequent proceedings. No charges dismissed pursuant to this section shall be eligible for expungement under § 19.2-392.2.

F. Upon violation of a term or condition of supervised probation or of the period of good behavior, the court may enter an adjudication of guilt and proceed as otherwise provided by law.

G. Notwithstanding any other provision of this section, whenever a court places a person on probation upon terms and conditions pursuant to this section, such action shall be treated as a conviction for purposes of § 18.2-308.”

Criminal proceedings are brought by the Commonwealth of Virginia against the Defendant, and those proceedings can include protections for the alleged victim.  However, the victim can also seek civil relief in the form of a protective order.

There are three different types of protective orders. An emergency protective order can be issued by either a magistrate or a judge and is based upon the sworn affidavit of the “victim”. This is a process which the magistrate or judge hears evidence from the party seeking the protective order. The accused is usually unaware of situation until/if the emergency protective order is granted, at which point in time he or she will be served. An emergency protective order expires, on its own, within seventy-two hours from the time that it is issued. However, it can be extended by the victim within that seventy-two hour period if he or she files for a preliminary protective order in the Juvenile and Domestic Relations District Court. The preliminary protective order, if granted, remains in effect until the court can conduct an evidentiary hearing to determine whether or not the protective order should be made into a permanent protective order.

To learn more, see our Articles, Blogs, and Frequently Asked Questions on this site.

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