Has a 911 call spun out of control?
Assault is defined under Washington State law as a "harmful or offensive touching" of another person. The legal definition of assault is not very helpful to defendants or police. Almost anything can be defined by police as an assault if they choose. In Washington State Assault in the fourth degree (Assault 4) is a gross misdemeanor and punishable by up to one year in jail and a $5000 fine. Although assault in the 4th degree is the most common domestic violence charge you can be charged with Assault in the 1st or 2nd degree. Assault in the 1st and 2nd are felonies and require that "substantial bodily harm" be inflicted.
Assault includes such things as slapping, pushing, punching, biting, shoving, pinching, throwing someone down, pulling hair, and other violent actions that are unwanted.
Definition of "Domestic"
The term "family or household member" under the domestic violence law includes "spouses, former spouses, persons who have a child in common regardless of whether they have been married or have lived together at any time, adult persons related by blood or marriage, adult persons who are presently residing together or who have resided together in the past, persons sixteen years of age or older with whom a respondent sixteen years of age or older has or has had a dating relationship, and persons who have a biological or legal parent-child relationship, including stepparents and stepchildren and grandparents and grandchildren."
The 4-hour rule
When police respond to a domestic violence call in Washington State they are required to make a written report and make an arrest if they believe that an assault occurred within the previous four hours. They can make an arrest even after the four-hour period, depending on the circumstances. They may also issue a citation.
The State of Washington and those who enforce the law give maximum protection to the "victim" and can spend very little time hearing both sides of the story.
Domestic Violence Assault 4th degree
Domestic Violence Assault-4th degree is a gross-misdemeanor in Washington state, punishable by up to 364 days in jail, loss of gun rights, a No-contact order with the alleged victim and a $5,000 fine. Assault in the fourth degree is generally defined as an assault with no or minor injuries. The victim in this type of gross misdemeanor assault may have no injuries at all and may have been slapped with an open hand. Unfortunately, mandatory arrest laws in Washington state often lead to a night in jail followed by aggressive prosecution.
Domestic Violence Assault 2nd degree
Domestic Violence Assault-4th degree is a Class-C Felony in Washington state, punishable by up to 5 years in jail, loss of gun rights, a No-contact order with the alleged victim and a $10,000 fine. Assault in the second degree is generally defined as an assault with injuries or a trip to the doctor or hospital. The victim in this type of felony assault may have serious injuries. Even if you do not have a criminal record, the standard sentencing range for a Assault in the 2nd degree is 3-9 months of jail.
Generally, the only way to avoid this jail time is a not guilty verdict at trial or a reduction in the charges.
Interfering with the reporting of Domestic Violence
Interfering with the reporting of domestic violence is a secondary charge that police can add on to the underlying and generally more serious charge of domestic violence assault. If you are accused of:
1. Preventing or attempting to prevent the victim or witness to an act of domestic violence from 1) calling a 911; 2) obtaining medical assistance; or 3) reporting the incident to law enforcement.
2. In order to be charged with "Interfering with the reporting of Domestic Violence" you must also be charged with an underlying charge of Domestic Violence Assault in the 4th, 2nd or 1st degree.
3. Under Washington State law this is a separate crime which can carry additional jail time and consequences.
If you have been arrested for domestic violence assault then the first court date you will attend is called "arraignment." This is mandatory. A corrections officer may bring you from the jail directly to the court for this hearing. This hearing will be the first opportunity you have to be released from jail. At arraignment the court will generally impose "conditions of release."
These conditions will be the rules that the defendant must agree to follow in order to be released from jail. There are two common conditions of release that prosecutors generally ask for:
1. Bail - This is the amount of money that you may need to post on order to be released from jail. Prosecutors generally ask for between 0 - $5,000 in bail for a first time offense of Domestic Violence Assault in the 4th degree.
2. Domestic Violence Protection Order - Otherwise known as a restraining order. This is a court order that is entered to "protect" the victim. It does not necessarily matter if the "victim" wants this or not. The judge will determine if the protection order is needed or not. The prosecutor will generally ask the judge to impose this order as a condition of release. In cases where there are physical injuries judges generally exercise caution and are likely to impose these orders.
3. Lifting a Domestic Violence Protection Order (DVPO) - Otherwise known as a restraining order. This is a court order that is entered to "protect" the victim. Remember, only the "victim" or "protected party" can move for the court to lift the domestic violence protection order. This means that if a DVPO has been entered against you then the victim is the person that must petition the court to lift the order of protection, not you. Your attorney must assist he victim is asking the court for a hearing to lift the order.
Having an Attorney at Arraignment - You have a constitutional right to have an attorney at your arraignment hearing. If you had not had time to hire a private attorney before arraignment then you will have a public defender who may assist you during arraignment. Remember, the arraignment hearing is the first time that the judge gets his or her first impression of the case, the facts, the parties involved and his opinion of the defendant. It is important to make a good first impression and important to have an attorney protect you for high bail and unnecessary protection orders.
Calling 911 first does NOT make one a victim!
Calling the police first does NOT make someone a victim! Police officers are generally not well positioned to determine who is a "victim" of domestic violence. Police officers respond to 911 calls and are almost never witnesses to the alleged crime. They try to deduce what occurred based on verbal reports, witness reports and injuries, but do not have detailed information about the relationship between you and the alleged victim.
Women are Victims and Men are Guilty
What started as an emotional call to 911 can tear a family apart. Breaking apart a family is not the proper role of government, but once the police and prosecution are involved the government's prosecution machine is difficult to stop. Remember that police sometimes have gender bias and have a predisposition to assume that women are victims and men are guilty. There are many cases where traditional gender roles are not an accurate portrait of the situation.
Police and prosecutors do not generally know your relationship history or understand what led up to the point where police involvement occurred. These are facts that a skilled attorney can bring to light to combat stereo-types.
What if the "victim" does not want to testify against me?
In many cases one partner is charged with domestic violence assault and the complaining party no longer wants to participate in the prosecution. In most cases it doesn't matter. The federal rules of evidence do not require one spouse to testify against another spouse. This is called the rule of "Marital Privilege." Unfortunately, this rule does not apply if the other spouse is the victim of an assault.
If one spouse does not want to testify against the other in a DV-Assault 4th degree case then the best option is generally to work through your attorney to communicate this to the prosecution. Additionally, the victim spouse can write a letter to the prosecution that expresses their feelings on the issue. A letter to the prosecutor may result in the possibility of the charges being dropped or reduced. If the prosecution is not responsive to your requests then communication to the judge may be another strategy.
What is a Domestic Violence "Victims Advocate?"
A domestic violence "Victims Advocate" is a employee of the prosecutors office and generally highly trained in issues of domestic violence. These employees are generally women and generally adept at talking with women and children about highly personal situations and problems. Domestic violence victims advocates generally coach "victims" and children through the process of pressing charges, testifying as witnesses, obtaining domestic violence protection orders, filing for divorce and moving out of the shared or marital home.
However, a problem arises when the interest of the prosecutors office is not parallel with that of the "victim." In many cases a prosecutors office wants to pursue charges and the "victim" desires to repair their relationship with the defendant and put the incident behind them. Here is the problem! The domestic violence victims advocate does NOT work for the victim, they work for the prosecution. In many cases the "victims advocate" may pressure the "victim" to pursue charges even when they do not want to. And if they refuse may even force them to do so with the use of a Material Witness Warrant (At court order to force testimony).
Domestic Violence Defenses
1. False Accusation
The defense of "false accusation" is likely the most common defense to a charge of domestic violence assault in the fourth degree. These are cases where injuries to the victim are minimal or non-existent. In many cases a false accusation may be a strategy by the complaining party to get the upper hand in divorce litigation or a child custody dispute.
2. Justified Self Defense
In Washington State there is a self-defense argument (RCW 9A.16.020), which states when it is lawful to use force. This affirmative defense may be used when the defendant was preventing themselves or another from being injured by an assailant often referred to as “defense of others.”
In many cases of domestic assault the defendant may have been defending themselves against the other party and may have used minimal force to defend themselves. The law allows for using "not more force than necessary." In other words, your use of force must be proportional. Additionally, when asserting a defense of "self-defense" you may be required by law to take the stand and testify as to the circumstances surrounding your use of force. The defense of self-defense can be difficult to prove if you are accused of assaulting someone of much smaller size and strength. Judges and Juries often make decisions based on the size and strength of the defendant and alleged victim and an experienced attorney can help you rebut the presumption that the smaller party is the victim.
3. Accidental Injury
In order to prove that an assault has occurred the prosecution must prove every element of the crime. One of those elements is the element of "intent." This means that the injury or harmful and offensive touching must have been intentional. If they touching or injury was accidental and you did not intend for an assault to occur then you may use this as a defense.
In some cases the prosecution may be willing to accept alternative sentencing as an alternative to a conviction or jail time. John T Law, PLLC works directly with a state certified agency offering domestic violence perpetrator treatment programs. These agencies can also provide Domestic Violence evaluations can present their findings to the court.
These programs are cognitive/behavioral based and designed for low to medium risk offenders and are generally a good opportunity for many first time offenders to avoid a conviction or jail time.
Consequences of a domestic violence assault conviction.
1. Jail time;
2. Loss of employment opportunities;
3. DNA testing and being entered into a DV and Sex Offender Perpetrator database. (Beginning July 2017)
4. Supervised probation;
5. Twelve (12) months domestic violence treatment. Up to 1 class per week;
6. Alcohol evaluation and treatment follow-up as recommended by a treatment. counselor;
7. Mental health evaluation and treatment as recommended;
8. Parenting classes;
9. Payment of probation fees;
10. Prohibitions against the consumption of alcohol;
11. Prohibitions against firearm ownership and loss of 2nd amendment rights;
12. Community service/non-profit work;
13. No contact order with the alleged victim;
14. Paying monetary restitution to the alleged victim.