Domestic Assault - Deferred Disposition No Guarantee

As I have previously discussed, Virginia Code Section 18.2-57.2, the so-called domestic assault statute, criminalizes the assault and battery of a family or household member.  My emphasis of "and" will become apparent later in this article.  You may recall that on a first offense family assault, the judge has the option of deferring a judgment of guilt while placing the defendant on local probation, including the completion of an anger management class.  If after two years the defendant has complied with all terms of probation, the case will be dismissed.  This outcome is only available on violations of 18.2-57.2.

Virginia Code Section 18.2-57 is the simple assault statute.  As written, it merely criminalizes the assault of another person, not the assault and battery of an individual.  What is the difference bewteen assault and battery you may ask.  A battery is defined as an illegal or offensive touching of another person.  An assault is an act that puts some in fear or apprehension of suffering a battery.  If I raise my fist in anger at you, that could be an assault, but not a battery.  If I swing and hit you, that would be both and assault and a battery.

Now to my point.  In juvenile and domestic relations court this morning, I had a female client charged with an 18.2-57.2 assault and battery against her boyfriend, who is also the father of her child.  My client was convinced that she was innocent.  I could not convince her otherwise.  According to her, her boyfriend had been picking on her all day while they sat around the house drinking.  After about 8 hours of this conduct, my client walked over to her boyfriend, swung at him, but missed.  She then walked to another room, where her boyfriend followed her.  As he came towards her with his hands out to grab her, my client popped him twice in the mouth and kicked him in the leg. 

Despite my advice, my client insisted on telling her story to the judge, as she was sure she was innocent.  After listening to her testimony, the judge asked for argument on the facts.  The only argument I could make was that the battery was justified as self-defense since the boyfriend came at her after she retired to another room.  The judge agreed there was no battery, and thus she was not guilty of a 57.2 violation.  However, the judge also determined that her initial swing and miss constituted an assault under 18.2-57, as there was no actual battery.  He then convicted her of a simple assault, as it was a lesser included offense of the original charge.

The problem with this decision is that the Virginia Code does not allow for a deferred disposition on simple assaults like it does for domestic assaults.  Consequently, my client now has a conviction on her record and a suspended sentence hanging over her head, whereas if she had not testified, she would have been placed on probation with the possiblity of having the charge dismissed in two years.

Now, this outcome was my client's own doing.  I advised her not to testify, and I advised her to take the deferred disposition, but she chose not to do so.  However, it seems peculiar to me that the legislature would allow for a deferred dispostion on a first offense domestic assault and battery, but not offer a similar alternative for the lesser included offense of simple assault.  There seems to be a fundamental disconnect in drafting these laws to allow someone who is for all intents and purposes guilty of a more serious crime the opportunity to have it dismissed, but not provide the same opportunity to someone guilty of a less serious offense.