Domestic Violence Overview
While violence directed at another person is always unlawful, when it is directed at those closest to us, distinct laws apply, falling under the category of “domestic violence” offenses. California’s domestic violence statutes provide for the protection of victims of domestic abuse and govern the prosecution and punishment of those convicted of domestic violence criminal offenses.
The Domestic Violence Prevention Act (the “Act”) is codified under California’s Family Code beginning with Section 6200. Under the Act, domestic violence is an act of violence directed at persons with a statutorily defined relationship to the offender. The law defines the following as those protected under the Domestic Violence Prevention Act: a spouse or former spouse, a person with whom the abuser is or was a cohabitant, a person with whom the abuser is (or was) dating or to whom the abuser is (or was) engaged, a family member to the second degree, and/or a person with whom the abuser has had a child. While we typically think of domestic violence as physical or sexual abuse, it can also include certain types of psychological abuse. Psychological abuse occurs when the abuser causes the other person to fear that he or she is in immediate danger. Such acts include stalking, harassing by any means, or destroying the victim’s property.
The Family Code is concerned with the conditions and procedures under which protective orders may be issued when domestic violence is alleged to have occurred while the Penal Code is concerned with the criminal prosecution of domestic violence. A protective order is generally issued upon any substantiated allegation of abuse and often a criminal prosecution will follow.
Certainly domestic violence is a very serious crime, but as an Orange County domestic violence defense attorney for many years, William Weinberg has seen these laws misused by persons who want to punish or take revenge on the alleged abuser, or who misuse the law to his or her advantage. For example, it is not uncommon during a divorce for one spouse to allege that his or her spouse has committed domestic violence in order to obtain a protective order that forces the alleged abuser to leave the family home or to manipulate a more favorable settlement at the divorce. Because domestic violence is such a sensitive area of the law and establishing the veracity of abuse claims can be ambiguous, anyone charged with domestic violence needs an attorney experienced in this area of the law to guard against the potential pitfalls.THE PROTECTIVE ORDER
Domestic violence protective orders are governed by the California Family Code from sections 6200 through 6460. Usually a domestic violence protective order is issued either when the police have been called out on an alleged incident of domestic violence or when an alleged victim files for a protective order. When the police respond to a call of domestic violence, whether that call was made by the victim or someone else, they will assess the situation, and make an evaluation of the allegation on the spot.
If the police see physical evidence of abuse, which may be severe or as minor as a red mark or a scratch, the police will issue what’s called an emergency protective order, which protects the victim. When this occurs, the police will almost always also arrest the alleged abuser. When the abuse is not physically apparent, the police must make a subjective evaluation but often the police will err on the side of caution and assume the allegations are true. Family Code section 6250 requires that the police have reasonable grounds to believe the alleged victim is “in immediate and present danger.”
Sometimes, both parties have inflicted physical violence on each other. When this happens, the police will arrest one or possibly both parties. Often, the police will arrest the person who inflicted the more serious injury and/or the person the police determine instigated the incident. For example, if a wife alleges that her husband tried to strangle her and she has red marks around her neck but the husband alleges his wife was punching and scratching him and he has many red marks and scratches on his body, the police will probably arrest the husband. Why? Well, attempted strangulation is a serious act of violence while the violence inflicted on the husband may be interpreted as acts of self-defense.
After an emergency protective order is issued, which usually retrains the alleged abuser from any contact with the protected person, the protected person must file for a Domestic Violence Restraining Order with the court. The court will ultimately decide whether to issue the restraining order.
A protective order does not always require police involvement. A person can allege that he or she is a victim of domestic violence and ask the court for Domestic Violence Restraining Order protecting him or her from the alleged abuser. The court will then make a determination regarding the request and issue orders as appropriate. Under this scenario, the alleged abuser usually is not arrested.CRIMINAL CHARGES
Domestic violence is prosecuted criminally under various sections found in the Penal Code. Generally speaking, any act of physical or sexual force or threats against a person covered under the Domestic Violence Prevention Act can be charged as an act of domestic violence.
An act of domestic violence must be intentional. In other words, a person can’t be charged with domestic violence if he or she accidentally caused an injury or harm to the victim. This can get tricky and could result in a charge of domestic violence even though the alleged perpetrator did not mean to cause the harm. Here’s such an example: a husband, in his attempt to defend himself from his wife who is angrily threatening him with a kitchen knife, grabs the arm of his wife causing her to accidentally cut herself with the knife. She calls the police and claims that he cut her with the knife. Unfortunately, in distressed relationships, this type of incident is not uncommon. Without an attorney experienced in the defense of fabricated allegations of domestic violence, the prospects are not good for the hapless husband and he may face a serious felony charge. As a domestic violence defense attorney in Orange County for 25 years, William Weinberg is well-versed in the ways domestic violence laws can be exploited and he is diligent in discovering such abuses and will aggressively challenge the charges when there is evidence that alleged victim is using the law to his or her own advantage.
Child abuse and elder abuse may also be domestic violence crimes; those crimes are discussed under separate headings. Below are links to the most common domestic violence crimes when the crime is committed against a person with whom the perpetrator has or had an intimate relationship as defined by the statute.
- INFLICTING BODILY INJURY ON A SPOUSE OR INTIMATE OTHER (PENAL CODE §273.5(a))
- DOMESTIC BATTERY (PENAL CODE § 243)
- SPOUSAL RAPE (PENAL CODE §262)