Domestic Violence and Allegations of Abuse
Everyone knows that it is wrong, morally and legally, for one person to hurt another. When the people doing the hurting are hurting someone they used to love, that have had a child with or lived with, the situation becomes much more complicated.
Social workers, social services agencies, women’s rights advocates and increasingly, society in general refer to such events as “domestic violence”.
The prevalence of domestic violence and its consequences are alarming but also often misunderstood, over-stated by advocates for a particular viewpoint or misrepresented.
According to the United States Department of Justice, Bureau of Justice Statistics:
In 2008, for persons 12 years of age or older, violence committed by spouses or ex-spouses, boyfriends or girlfriends, and ex-boyfriends or ex-girlfriends revealed that:
Females experienced about 552,000 nonfatal violent victimizations (that is: rape/sexual assault, robbery, or aggravated or simple assault) by a current or former spouse, boyfriend or girlfriend;
for the same time period, males experienced 101,000 nonfatal violent victimizations by an intimate partner;
The rate of victimizations for females was 4.3 victimizations per 1,000 females while the equivalent rate for males was 0.8 victimizations per 1,000.
In Virginia, domestic violence is considered a separate specific crime.
“§ 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:
“§ 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.”
Professional law enforcement considers domestic violence one of the most serious problems facing society.
In recent years, courts, prosecutors, legislators and law enforcement have established a system to make it much easier for victims (usually the mother, wife or girlfriend) to charge.
Unfortunately, many people have found that system is subject to abuse by people claiming to be victims. People who claim that they are the victim of abuse often make false allegations knowing that the immediate consequences of an arrest for “domestic violence” often include eviction form home, loss of security clearance, suspension at work, placement on administrative leave, with or without pay, being prevented from any contact with one’s own children, a restriction on the ability to purchase or even possess firearms, guns, or other weapons and a sense that “I have been found guilty without a trial based on lies”.
In order to make sure that “victims” may be protected as easily as possible the current system and procedures allow a person to simply go to the magistrate (open 24 hours a day 7 days a week) and swear that they have been assaulted or battered or threatened with bodily harm.
In the past, such cases were routinely dismissed by the police and the Sheriff’s Department as “he said – she said” a very difficult kind of case to prosecute when the burden of proof (proof beyond a reasonable doubt) and the other legal obstacles associated with overcoming the “presumption of innocence” are taken into consideration.
Another common tool misused by many people with family, custody and divorce concerns is a protective order.
Issued (basically) upon the sworn statement of anyone that feels that they are in fear from someone that they live with, a protective order has sweeping immediate consequences including presumption of no bond for any subsequent allegation of a violation of that 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 one-sided affair in which the magistrate or judge only 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. Should this occur, the protective becomes a preliminary protective order. The preliminary protective order 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.
Consequences following a protective order can be devastating. Not only can they affect a person’s civil liberties (a protective order prohibits the possession of a firearm), but they can also affect legal proceedings concerning custody and visitation. A protective order can grant the “victim” custody of a child. In some cases, custody may seem to be the driving factor for the “victim” in seeking a protective order. Because a protective order has the authority to determine child custody and because the process to obtain a protective order is often times quicker than the process involving a custody case, someone may attempt to secure a protective order in order to secure custody in a more speedy fashion. This is certainly not the purpose behind protective orders. Unfortunately, more often than not, a protective order is used as a sword, rather than a shield.
Even if you are able to “beat the wrap” as the street often refers to it, it is difficult to “beat the ride”. Most people incorrectly assume that a finding of Not Guilty or a dismissal pursuant to a successful completion of a “first offender” disposition automatically results in an expungement of their criminal records. That is not the case; quite the opposite, expungement is an entirely separate procedure and has its own legal obstacles and burdens to overcome.