Ask the Arlington-Fairfax Lawyer: What is Domestic Assault in Virginia? What are the Penalties? How is this Different from Simple Assault & Battery?
In many ways, Domestic Assault is really an Assault & Battery case where the victim is a family or household member. However, the cases are treated very differently — both substantively and procedurally.
Police in Arlington, Fairfax, and other Virginia counties, when called to the scene of a domestic dispute, will usually make an arrest of someone when there is some evidence of a physical injury or an admission of assault. The policy rationale is simply to give the parties time to cool down. As is often the case with any Assault case, the “winner” of a fight is more likely to be arrested than the “loser.” Thus, if one is being pushed and pushes back in self-defense, but the initial aggressor falls and hurts herself, the one acting in self-defense is likely to be the one arrested. These cases are often ones involving misunderstandings.
Here are some frequently asked questions concerning Domestic Assault in Virginia. For the answer, just click on the relevant tab, below.
Any person who commits Assault and Battery against a family or household member is guilty of Domestic Assault. This law is found at Virginia Code sec. 18.2-57.2.
According to Virginia code sec. 16.1-228, a “family or household member” is (i) the person’s spouse, whether or not he or she resides in the same home with the person, (ii) the person’s former spouse, whether or not he or she resides in the same home with the person, (iii) the person’s parents, stepparents, children, stepchildren, brothers, sisters, half-brothers, half-sisters, grandparents and grandchildren, regardless of whether such persons reside in the same home with the person, (iv) the person’s mother-in-law, father-in-law, sons-in-law, daughters-in-law, brothers-in-law and sisters-in-law who reside in the same home with the person, (v) any individual who has a child in common with the person, whether or not the person and that individual have been married or have resided together at any time, or (vi) any individual who cohabits or who, within the previous 12 months, cohabited with the person, and any children of either of them then residing in the same home with the person.
This is a Class 1 misdemeanor, punished by a jail sentence of up to one year and/or a fine of up to $2,500.
However, if the defendant has previously been convicted of two or more prior offenses against a family or household member within 20 years, the crime is a Class 6 felony, punishable by 1 to 5 years in prison or up to 12 months in jail and/or a fine of up to $2,500.
Realistically, what am I looking at for a first offense conviction of Domestic Assault if convicted?
Like most assault cases, the punishment is often reflected in how badly injured the victim was. For most first-offense cases, where the injury is not so bad, there is no jail. Instead, the court will order the defendant to complete social programs, such as anger management or alcohol treatment. The court has the ability to dismiss the case after a probationary period with terms (which often include social programs) under Virginia Code sec. 18.2-57.3. This has the practical effect of keeping a person free from a criminal conviction record.
Naturally, there are defenses to Domestic Assault. When one is acquitted there is no punishment. An innocent person should think long and hard about considering a continuance for dismissal with terms. There are some significant disadvantages to a dismissal under this program. Even in cases where the government can prove the case, mitigating circumstances are often considered to reduce the charges and penalties. However, these are very serious cases. A good criminal defense attorney is needed to defend them whether in Arlington, Fairfax, or any other county in Virginia.
I was given a Preliminary Protective Order and told that I can’t have contact with my spouse? Is this for real? Where do I live? How do I care for my kids?
Usually, one charged with Domestic Assault is also served with a Protective Order. This is a court order forbidding the person served with having contact with the “victim” for 72 hours. It is a serious crime to contact one’s spouse in violation of this order. “Contact” usually includes phone calls, e-mails, and texts and is not limited to in-person contact. The person serviced with the order cannot live in the same house as the “victim” and contact with the kids must occur away from the “victim.” This is, indeed, a tough rule. Most people stay with family, friends, or at a hotel. Fortunately, the order is often short lived. Parties can always ask the court to have the order dissolved.
My spouse overreacted by calling the police and wants this to go away. How does she drop the Domestic Assault charges?
Domestic Assault is a criminal charge, not a civil charge. The “victim” spouse is not in control of the case; the prosecutor is. It is very common for a “victim” spouse to reconcile, change his or her mind, and want the case dropped. However, it is also common for the prosecutor to insist that the case go forward. The policy reason for this is that some “victim” spouses are intimidated by the accused spouse into asking that the case be dropped. A “victim” does not have the power to drop the charges in Virginia.
Here are some differences between Domestic Assault and Simple Assault:
- Domestic Assault is tried in the Juvenile and Domestic Relations District Court; Simply Assault & Battery is tried in the General District Court.
- Those guilty of Domestic Assault are eligible of having the case ultimately dismissed under a special first-offender program; There is no similar program for Simple Assault cases.
- Those charged with Simple Assault & Battery can avail themselves with Virginia’s “Accord and Satisfaction” law, whereupon the accused and victim can make a private settlement of the case which, if the court approves, can result in an unconditional dismissal of the case. There is no similar procedure in Domestic Assault cases.
- Those charged with Domestic Assault and subject to Protective Orders cannot own or possess a firearm and must surrender any concealed carry permit. Those convicted of Domestic Assault are limited on their possession a firearm under federal law under 18 USCA sec. 922 (g) (9)). There are no such limitations for Simple Assault & Battery.