According to Psychology Today, over 3 million incidents of domestic violence are reported each year. In fact, they also claim that in the United States nearly 20 people every minute are physically abused by an intimate partner. But remember, abuse isn’t always a physical injury. This article will explore the following:
- What is Domestic Violence?
- Legal Categories of Domestic Violence
- First-Degree Domestic Violence
- Second-Degree Domestic Violence
- Third-Degree Domestic Violence
- What is Mandatory Arrest?
- What is Trial Without Victim?
- Can Domestic Violence Charges be Dropped or Dismissed?
- Domestic Violence Related Restraining Orders
- Receiving a Restraining Order
- Violating a Restraining Order
- Can a Restraining Order be Lifted or Modified?
- Need Help From a Domestic Violence Defense Lawyer
Domestic Violence: Defined
Any violent behavior, manipulation, or abuse from one person to another person in a “domestic relationship” such as a marriage or cohabitation in which the violator or the abuser is seeking control or power in the relationship can be considered domestic violence. Even just the threat of violence upon a person whom has been in an intimate relationship can be categorized as domestic violence.
Domestic violence is not limited just to person to person crimes. Criminal actions such as destruction of property or violence toward animals as a means to control, coerce, punish, or intimidate the victim are also classified as acts of domestic violence.
While most perpetrators more than likely suffered from abuse themselves, anyone can be an abuser. No matter one’s economic status, culture, gender, or religion; domestic violence is prevalent everywhere. Domestic violence may present itself in many different forms such as psychological trauma, emotional and verbal abuse as well as physical violence, and sexual assault. The occurrence, severity, and type of abuse may drastically vary; but overall, the violator is seeking control and uses force to maintain power in the situation.
Legal Categories of Domestic Violence
Technically, domestic violence is not a criminal charge; it is, however, a sentencing enhancement. Other charges, such as disturbance of the peace, harassment, assault and battery, must first be made, then the sentencing enhancement of domestic violence can be added.
Legally, there are three different categories of domestic abuse: first-degree, second-degree and third-degree domestic violence. First-degree is the most damaging level of domestic violence and comes with more severe punishment all the way down to third degree domestic violence which is still serious and has consequences.
Third-Degree Domestic Violence
Domestic violence in the third degree is the lowest form of domestic abuse. Third degree domestic violence can involve anything from pushing, kicking, biting, hitting and throwing objects at the victim. The act of injury or infliction of pain could be as simple as a pinch that bruised.
Any knowingly or intentional physical harm or even threat of harm can be considered as domestic violence. Almost any form of assault or harassment can be labeled or “enhanced” as domestic violence. The enhancement of a crime to domestic violence can extend jail time and fees associated with said actions.
Third-degree domestic violence, in most states, is considered misdemeanor. Class A misdemeanors can be punished with jail time for up to one year and three years probation. The details of the case are taken into consideration and if the crime is minimal, the defendant may only have to pay a fine. If multiple reports of violence continue to occur, jail time is more likely.
Second-Degree Domestic Violence
Second-degree domestic violence, also known as second-degree domestic assault or battery is automatically considered a felony. The harm of second-degree assault is more damaging than third-degree assault. Physical injury such as hitting, strangulation, suffocation, and kicking are more severe but not necessarily life-threatening.
Again, like third-degree domestic assault, second-degree domestic violence involves a perpetrator knowingly causing or attempting to cause physical harm to a person in which the violator has or has had a relationship with, such a family member, spouse, or individuals in a shared living situation.
Domestic violence must always be taken seriously. Second-degree domestic assault charges correlate to physical harm, though sometimes minimal such as shoving, a slap on the arm or grabbing of the wrists. Even though the threat or harm was not as seriously damaging or life-threatening as in first-degree domestic violence, the judicial system will sustain (support) a charge of second-degree domestic violence if there is evidence to back such claims.
Reckless behavior resulting in injury is also considered domestic violence. If the abuser is enraged and throws a chair not necessarily intending to injure the victim but ultimately does, a judge or jury (if the incident goes to trial), can assess the damages and interpret the intent.
Most perpetrators are not one-time offenders and have a repeat history of violence, crime, or substance abuse. Although this is not always the case, numerous experts have documented second-degree domestic abuse to be cyclical. If the victim suffered injuries that required medical care, the perpetrator may be responsible for covering the cost of medical bills as part of restitution.
Any level of domestic violence charges will automatically result in the loss of the right to use or own a firearm. If convicted, consequences could include jail or prison time as well as mandatory counseling, anger management and possibly a substance-abuse program. If a person is being charged with a crime, such as harassment or disturbance of the peace, with domestic violence enhancement for the first time and has no prior criminal record they are still mandated to complete therapeutic recourse but may not have to be incarcerated. Counseling programs for perpetrators are usually 36 weeks. Each case is unique and the details of the crime contribute to the severity of the punishment.
First-Degree Domestic Violence
The most severe level of domestic abuse is first-degree domestic violence. This level of abuse can involve the intent to cause “great bodily injury” to the other person. Any use of a deadly weapon can bring assault charges to the first-degree level. In Colorado, assault in the first-degree is constituted as a Crime of Violence (COV) and has a mandatory sentencing.
First-degree assault can bring up to twice the maximum amount of jail time than second-degree assault. Bail for a first-degree assault with domestic violence enhancements can exceed $100,000. In Denver, the mandatory sentencing for first-degree assault is a minimum of 10 years in a state prison. In more extreme cases of violence in Colorado, the sentence can be extended to 32 years of jail time. Following the determined amount of prison time, first-degree assault carries a guarantee of five years parole.
Domestic Violence: Mandatory Arrest
The state of Colorado has a mandatory arrest policy concerning domestic violence. If the police have been called and probable cause indicates domestic abuse has occurred, the police are obligated by law to arrest the perpetrator no matter what the alleged victim claims and no matter how minor the evidence. The violator will then be taken into custody.
Even if the victim or person reporting the crime does not want to proceed, the police can arrest the perpetrator and a warrant will be issued. The court will then declare “reasonable terms” for bond and schedule an evaluation by a judge.
Depending on the severity of the crime and additional details associated with the domestic violence, “reasonable terms” for bond or probation will be defined. Until the case is complete, the court can impose conditions such as:
- Wearing a GPS ankle bracelet
- No possession of any weapons
- Random drug and alcohol tests (at perpetrators expense)
- Unannounced search of home or personal property by a probation officer
- Resign from place of employment
- Unable to return to residence of the victim
- Unable to see children
The mandatory arrest law was designed to protect victims that did not want to press charges because they were afraid the violator might further harm them. While this policy is effective in many ways, it has its flaws. If there are claims of domestic violence against you, immediately contact an experienced domestic violence lawyer for a consultation.
Trial Without A Victim
In some cases of domestic violence allegations, the victim may refuse to testify. It is not uncommon in sexual assault cases, gang-related violence, and even elder care abuse for the victim to want to remain silent and not press charges to protect themselves from further harm and avoid public humiliation.
If someone such as a neighbor or bystander witnesses and reports the crime, the presence of the victim in court may not be necessary to proceed with charges. Also, if a victim calls 911 or confesses to a mandated reporter the recording of the phone call or written documentation of the victim’s testimony are more than likely going to be admissible in court, even if he or she refuses to testify in court.
Claims of domestic violence are not taken lightly and laws have been developed to prevent dropping of a case if there is reason to pursue justice and protect someone from being harmed. If the claims do not seem serious and the perpetrator does not have any history of violent crimes, in addition to the fact that the victim does not wish to testify or press charges, the judge can rule to drop the case.
Can Domestic Violence Charges Be Dropped or Dismissed?
Overall, in any state, once charges associated with domestic violence are set it would be extremely difficult to have them dropped. In the state of Colorado, while the Victim’s Rights Amendment requires that the prosecutor work with said victim on how to handle the case, other laws have also been established to prevent prosecutors from terminating or dismissing most cases of domestic violence even when the alleged victim does not want to pursue criminal charges and/or the actions were a minor offense.
In a few cases, domestic violence charges were dismissed when the alleged victim insists on dropping the case and the defense attorney can clearly argue weaknesses in the story. Under certain circumstances, “this was all just a misunderstanding” is a viable answer. Domestic violence is serious and although not completely impossible to dismiss; essentially once a domestic violence associated charge is in place it cannot be removed and must go to court.
Domestic Violence Related Restraining Orders
In some cases, for a victim to be protected against further domestic violence from a perpetrator, a restraining order is established. Restraining orders usually prohibit the violator from being in proximity to the victim, within a certain number of feet. A restraining order can order the defendant to stay a specific distance from one’s place of work, children’s schools or daycare, and even public places that the victim frequents. Furthermore, depending on the specifics of the restraining order, the abuser is legally not allowed to call, mail, social message, or make any type of contact with the victim while the restraining order is active unless otherwise declared by the court.
If the domestic violence occurs between cohabitors, once a restraining order is issued, the violator or defendant must move from the premises. In the event both parties have children together, the restraining order may or may not include the children. If the restraining order does not include dependents, then arrangements for the children to be picked up and/or dropped off must be accommodated. If the restraining does include protecting the children from said perpetrator, then the defendant must obey the same restrictions or specified restrictions concerning the children.
Receiving A Restraining Order
A police officer or deputy sheriff may deliver the restraining order. Copies of the restraining order may be filed at the victim’s place of work, at the children’s school (if children are involved) as well as any other location that the victim frequents. If you have ever had or have a current restraining order, they are public record and can be viewed for employment, immigration, or other purposes.
If A Domestic Violence Restraining Order is Violated
One could expect serious consequences if a perpetrator of a domestic abuse case violates a restraining order. Penalties can include payment of fines, probation, and even jail time. If a defendant violates a restraining order and has charges already against them pertaining to why the restraining order was set in the first place, the defendant could lose the bond on which he or she was released from jail ultimately sending them back to jail until the matter is resolved in court.
Can A Restraining Order Be Lifted or Modified?
Restraining orders are often necessary in domestic abuse situations to protect a victim from a perpetrator. Although there have been documented circumstances in which restraining orders were put in place to manipulate a condition against one person. In such incidents as divorce settlements and child custody battles, restraining orders may have been wrongfully placed to tarnish one’s credibility as leverage for a case. If this can be proven, the defendant can request the court to lift the restraining order by filing a Motion to Lift the Restraining Order or a Motion to Modify Conditions of Pretrial Release.
Furthermore, a restraining order can be lifted if circumstances change and a restraining order is no longer necessary or the victim voluntarily makes the request to remove the restraining order. Usually, a hearing must take place before a judge decides whether or not the Motion to Lift the Restraining order is granted; generally, both the victim and the defendant must be present.
A restraining order can be permanently dropped or modified. If the plaintiff does not choose to have the restraining order permanently dropped, the victim may choose to have certain contact information such as phone calls or emails reinstated while choosing to have all physical contact remain restricted. Requesting to have a restraining order modified may be necessary to keep some lines of communication open, if children are involved or until a divorce is settled.
Seek A Domestic Violence Lawyer
Being accused domestic violence can be socially devastating. The stigma associated with possible abuse can affect your life in many ways. While domestic violence is never acceptable, there are therapeutic treatments available for individuals that suffer from anger issues as well as substance abuse that may contribute to domestic abuse.
Having an experienced attorney that is knowledgeable and skilled specifically in domestic violence defense is critical when facing charges of such criminal assault. If you need help defending your case or need to seek legal advice from a professional regarding domestic abuse, assault, or other related criminal actions reach out immediately.