When you are charged with domestic violence in the Commonwealth of Virginia, it can seem as though your whole world is suddenly crashing down. As if the domestic violence incident and the circumstances surrounding it aren’t dire enough, the penalties associated with a domestic violence conviction could result in a misdemeanor or felony conviction on your permanent record, along with fines, jail time, probation, restraining orders or all of the above. Such a conviction, particularly if it’s classified as a felony, could make current and future employment, as well as obtaining a loan or housing, extremely difficult.
The reality is that domestic violence charges can often be overcharged or even completely fabricated. Even if the case is valid and warranted, hiring a Virginia domestic violence lawyer can assist you in reducing the associated penalties that come with conviction. An experienced Virginia domestic violence criminal attorney will look at each individual aspect of your case and rely on all allowable legal resources in order to create a case that protects your rights and fights for the maintenance of your innocence.
- Defining Domestic Violence in Virginia
- Penalties for Domestic Violence in Virginia
- Protective Orders
- Spousal Abuse
- Child Abuse
- Building a Defense
Defining Domestic Violence in Virginia
In Virginia, domestic violence charges are governed by similar laws to those that govern assault and battery charges. The state code covering domestic violence cases in particular is § 18.2-57.2. Assault and battery are defined by Virginia common law, with assault being defined as the attempt to make offensive or harmful contact, and battery being defined as the actual contact itself. In Virginia, you can be charged with assault even if that assault does not result in battery. This forms something of a legal gray area for courts, and serves as the perfect opportunity for a skilled Virginia domestic assault lawyer to defend your case.
Domestic violence is defined as assault and battery against a member of your family or household. The definition of a “family or household member” is covered by state code § 16.1-228, and can refer to:
- An individual’s spouse, regardless of whether the two individuals live in the same residence
- An individual’s former spouse, also regardless of living arrangements
- An individual’s parents, stepparents, children, stepchildren, sisters, half-sisters, brothers, half-brothers, grandchildren and grandparents, also regardless of living arrangements
- An individual’s father-in-law, mother-in-law, daughter-in-law, sons-in-law, sister-in-law or brother-in-law, so long as the individuals live in the same residency
- The mother or father of the individual’s child, regardless of living arrangements
- Any person who is living with the individual or has lived with the individual within the past 12 months
- Any child of the individual, the individual’s partner or former partner who lives in the same residency
Clearly, these laws can become confusing very quickly. A knowledgeable Virginia domestic violence lawyer will look at the details of your case to determine whether it can be classified as domestic violence, simple assault, and battery or neither.
Penalties for Domestic Violence
Much like with simple assault and battery, the penalty for domestic violence in Virginia upon conviction is a Class 1 misdemeanor, which includes up to one year in jail as well as a fine not to exceed $2,500.
However, domestic violence can be charged as a Class 6 felony if it is found to be a repeat offense. If you are charged with domestic assault and you already have two similar offenses on your record, which can be proven through indictments, petitions, warrants or other law enforcement information, and all of these offenses occurred within the same 20-year time span, the Class 6 felony charge applies. In addition to domestic violence, the charges that count against this “three-strikes” law according to state code § 18.2-57.2(B) include:
- Malicious wounding
- Aggravated malicious wounding
- Malicious bodily injury by means of a substance
- Any offense with similar elements to the ones listed above
The penalties associated with a Class 6 felony are defined by state code § 18.2-10, and can include a prison term ranging from one year to up to 10 years, as well as a fine not to exceed $2,500. At the discretion of the judge and/or jury, the incarceration penalty can be a jail sentence lasting up to 12 months.
As you can see, the penalties associated with domestic violence in Virginia can be extremely severe, even life-altering in the case of Class 6 felonies stemming from repeat offenses. By hiring a skilled and experienced Virginia domestic violence lawyer, you’ll have the best possible chance of receiving a lesser charge, reduced penalties or even having your case dismissed in court.
Civil domestic violence actions involve the issuance of a protective order. A protective order is the document that precludes contact between the respondent, who is usually the accused person in a domestic violence, and the petitioner, who is usually the victim in a domestic violence criminal case. A civil action requires only proof of clear and convincing evidence that an assault has taken place and, therefore, a no-contact protection order should be issued.
The criminal domestic violence action is an actual trial where a person’s been charged with some form of domestic violence, whether it be assault and battery, abduction, strangulation or any of the other things that appear under the domestic violence umbrella under Virginia law.
Limited Contact Before Trial
It is important to limit contact because an individual does not want to be seen as trying to influence the accuser during court proceedings.
One thing that prosecutors are always very keen to is looking at an accuser who is trying to recant their testimony or tried to have the charges dropped, whether or not that person was unduly influenced by the person they have accused.
Sometimes, prosecutors believe that an accuser comes into court under duress because they have been threatened by the person they have accused to prevent them from going forward with the case. Prosecutors are always going to look with great skepticism when an accuser comes in and says they do not want to go forward. They are going to wonder whether or not that person has been unduly influenced.
If the accused has excessive contact with the accuser during the pendency of these cases, then prosecutors are going to be even more suspicious that the accuser is asking for the case to be dropped under some form of duress.
Dropping Domestic Violence Charges
It is a common misconception that the accuser is asking for anything. When the police become aware that a domestic assault or some other domestic violence has taken place, it becomes the police and the State of Virginia who are accusing that person of a crime. And so, when we get to court, it is the Commonwealth of Virginia versus that person. And under those circumstances, it’s up to the government how to proceed or what to ask for.
An accuser cannot drop charges in criminal domestic violence actions in Virginia by themselves. An accuser can rise in court when they are subpoenaed to be there and ask the prosecution to drop the charges but that is the only thing that they can do. They lack the authority under Virginia law to walk into court and drop the charges themselves.
It is important to remember that the criminal case is the Commonwealth of Virginia versus the person; it is not the accuser versus the person. And so, it is ultimately up to the Commonwealth of Virginia through the prosecuting attorney in that jurisdiction to determine whether or not to go forward with criminal domestic violence actions.