A Primer On Domestic Assault Cases

     In my practice, I represent a large number of court-appointed criminal defendants.  A large percentage of these clients either are charged with, or have been charged in the past with assault on a family member.  Virginia Code Section 18.2-57.2 makes it a Class I misdemeanor for a person, including juveniles, to commit assault and battery against a family or household member.  Consequently, the maximum punishment for a first or second conviction of this offense includes 12 months in jail and a $2500 fine.  A third conviction within 20 years is punishable as a Class 6 felony, meaning 12 months in jail or 1 to 5 years in prison, as well as a maximum $2500 fine.

    Who is considered a family or household member?  Obviously one's spouse, children, parents and siblings are for the purposes of this statute.  Grandparents, grandchildren, stepparents, and stepchildren also are covered by this statute.  Additionally, an ex-husband or ex-wife are included within this definition even if you don't live with them.  In-laws are considered family under this law only if they live in the same house as the defendant.  If you have a child but are not married, the child's other parent is protected under this statute.  Finally, if you live together with someone or have in the past 12 months cohabited with someone, that person and any of their children living with you are considered family or household members.

     A question I receive quite often is "why can't my spouse/girlfriend/parent/etc. drop the charge?"  The answer is that once an arrest is made, the alleged victim merely becomes a witness for the Commonwealth.  The only way the charge can be dismissed is if the prosecutor decides to dismiss it.  There is a compelling reason to prosecute these types of cases, as domestic assault has been shown to be a repetitive offense, and in particular one that victims quite often will not pursue out of fear or intimidation of the alleged assaulter.  Consequently, the Commonwealth will only on rare occasions nolle pros, or dismiss, a charge without it going to trial.

     If you are a first time offender, the Virginia Code allows you the opportunity to keep your record clear of a conviction for family assault.  Virginia Code Section 18.2-57.3 permits a court to make a finding of facts sufficient to find a person guilty without entering a judgment of guilt.  The defendant is typically required to remain on probation for a period of two years and participate in a community based anger management class.  If the class is successfully completed and the defendant remains out of trouble during the probation period, the court will dismiss the case against him. 

    If you are convicted of a domestic assault under this section, not only could you receive jail time and a fine, but you will likely also be served with a protective order prohibiting contact with the victim for up to two years.  An additional, yet little known impact that a conviction for domestic assault has is that you lose your right to purchase or possess a firearm.  If you are subsequently caught trying to purchase or in possession of a firearm, you will be charged with a felony, creating even more problems for yourself.

Comments

[Laura C.]

I have a similar dilemma to those mentioned in this blog. In 2002 I entered into an Alfred Plea (although I am not sure I still quite understand what I did), was given 3 years probation and completed a parenting class. My then 11 year old daughter accused me of punching and kicking her. My Ex-husband of course was the one who got the ball rolling on my criminal charges and I chose the plea because of my other kids and them being young. My question is, my daughter later went to my ex husband and told him she lied and she wrote me note stating such fact and they both signed it. Is there anything I can do? Also, I have no idea if this is a conviction that has stuck or was dismissed. It embarrasses me tremendously when I know I did nothing wrong. I don't have a lot of money and had even less at the time and had a public defender who absolutely did not help. So, as I asked before, is there anything I can do, or am I forced to live with this issue?

Thank you