What Is Domestic Violence?
Domestic violence is abuse or threats of abuse between people in an intimate relationship (married or domestic partners, are dating or used to date, live or lived together, or have a child together). It is also when the abused person and the abusive person are closely related by blood or by marriage.
What is “Abuse”?
Abuse is not just hitting. Abuse also includes:
- Physically hurting or trying to hurt someone, intentionally or recklessly;
- Sexual assault;
- Making someone reasonably afraid that they or someone else are about to be seriously hurt (like threats or promises to harm someone); OR
- Behavior like harassing, stalking, threatening, or hitting someone; disturbing someone’s peace; or destroying someone’s personal property.
Domestic Violence Charges
Domestic Violence is punishable under Penal Code Section 243(e)(1). If the abuse causes a traumatic injury, it is punishable as a felony under Penal Code Section 273.5. It is also illegal to threaten harm, or follow or harass. Lesser offenses include battery and disturbing the peace.
Domestic Violence Penalties
A misdemeanor domestic violence conviction is punishable by up to one year in jail and/or a maximum $2,000 fine. A felony domestic violence conviction, on the other hand, is punishable by two, three, or four years in state prison or no more than one year in jail, and/or a maximum $6,000 fine.
Probation Instead of Custody Time
If the court grants probation, the terms of probation include a minimum 3 year probation, an order protecting the victim from further harassment or violence, payments to domestic violence programs, and community service.
In addition, the court will order successful completion of a batterer’s program or other appropriate counseling.
Community Service and Payments Instead of Fine
If the court does not impose a fine, the court can order restitution to the victim and payments to a battered women’s shelter.
Additional Penalties
Like most violent crimes, a domestic violence conviction results in loss of gun rights and can result in deportation, denial of citizenship, and exclusion from the United States.
Emergency Protective Orders
If a person is in immediate and present danger of domestic violence, the court will immediately issue an emergency order. Typically, the victim requests an emergency protective order from law enforcement. The protective order can be contested and modified or removed at the first court date. However, the court usually doesn’t change an order without speaking to the victim.
What Can the Court Order?
The court can order:
- No further violence and harassment against the victim and other persons in the residence;
- No contact with the victim and other persons;
- That the defendant move out of the residence and stay away from work, home, or school;
- Temporary custody of minor children.
Violating a Protective Order
The first violation of a protective order is a misdemeanor punishable by up to one year in jail and/or a $1,000 fine. Subsequent violations can be charged as a misdemeanor or a felony.
Defenses
If the alleged contact was accidental, was caused by another person, occurred during self-defense, or never occurred, it is a defense to domestic violence charges.
However, cases with allegations of domestic violence are not usually dismissed by the judge or district attorney. More often, defendants must take a case to trial to prove their defense.
*The fact that the victim does not want to press charges is not a defense.
Protective Orders
Only intentional violations of protective orders are unlawful. However, once law enforcement serves the protective order on the defendant, it is presumed that the defendant has read and understood the order.
Constitutional Defenses
The United States Constitution guarantees to all persons the freedom of speech and movement. Orders restricting speech or movement must balance these freedoms against the government’s interest in maintaining public safety.