A charge of assault and battery against a family or household member, commonly referred to as domestic assault, is a criminal charge with serious consequences. If convicted, you face time in jail, high fines, and even the loss of your right to carry a firearm. You will also be subject to an automatic emergency protective order, prohibiting you from having any contact with the alleged victim and possibly any of the victim's family members
If you or someone you care about has been charged with assault and battery against a family or household member in Virginia, Bryan J. Jones can provide you with the advice you need to protect your rights. You do not have to plead guilty just because you are charged with a crime.
Different from Simple Assault or Assault and Battery
While domestic assault is a form of assault, it has specific additional requirements. A charge of assault and battery occurs as the result of any unwanted or offensive touching done in a rude or angry manner. A simple assault occurs when a person threatens a battery against the victim, with the apparent present ability to do so. It may also occur as a form of attempted assault and battery.
What is Domestic Assault?
To convict a person of a domestic assault in Virginia requires the prosecutor to prove all of the elements of Va. Code § 18.2-57.2. The prosecutor must prove an assault and battery occurred and that the assault and battery occurred against a family or household member as defined in Va. Code § 16.1-228.
Family or household member includes:
- A spouse, whether or not he or she resides in the same home as the alleged offender;
- A former spouse, whether or not he or she resides in the same home as the alleged offender;
- Parents, stepparents, children, stepchildren, brothers, sisters, half-brothers and half-sisters, grandparents and grandchildren, regardless of whether they reside in the same home as the alleged offender;
- 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;
- 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; or
- 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.
If the person who is the alleged "victim" of the assault does not meet the definition of a family or household member, you can not be charged with domestic assault. The determination of whether someone is a family or household member can often be more complicated than you think, but with the help of an experienced Virginia attorney your rights can be protected.
Penalties for Assault Against a Family or Household Member
A charge of domestic assault is a Class 1 misdemeanor. If convicted, you will face the following penalties:
- A jail sentence of up to 12 months;
- A maximum fine of up to $2,500.
A first offense is serious enough, but if you are convicted for your third offense of domestic assault within 20 years you now face a Class 6 felony. As a result, you will face the following penalties:
- Mandatory minimum of six months in jail;
- A maximum of five years in prison.
The prior two convictions can be for domestic assault or for any combination of crimes committed against a family or household member such as:
- Malicious wounding,
- Malicious bodily injury by caustic substance,
- Strangulation, or
- Similar out of state offenses.
Deferred Disposition Program - Possible Dismissal for First Time Offender
Va. Code §18.2-57.3 provides a unique opportunity to those charged with domestic assault for the first time. If it is your first charge for assault against a family or household member, your charge can be dismissed if you successfully complete a deferred disposition program. A court will defer, or delay, any finding of guilt for an agreed upon period of time and place you on probation, with certain requirements.
A person charged with domestic assault is eligible for the program if:
- He or she was an adult at the time of the alleged offense;
- He or she had no prior convictions of assault or assault and battery against a family or household member;
- He or she has not previously participated in the deferred disposition program;
- He or she agrees to participate in the program and follow all of the requirements.
In addition, the alleged offender is required to plead guilty or no contest to the charges, or the court must find that sufficient facts exist in the record to find the alleged offender guilty of the charge prior to placing him or her in the deferred disposition program.
The requirements of the program include:
- Alleged offender must remain on good behavior at all times during the program, and can not pick up any new criminal charges for at least 2 years;
- Must go through a domestic violence evaluation and comply with any recommended treatment;
- Pay the costs of participation in the program and the costs of any required treatment;
- No abusive contact with the alleged victim;
- No possession of a firearm.
If you qualify and successfully complete the program, the domestic assault charge will be dismissed and you will not have a conviction on your record. If you are ever charged with domestic assault again, you will be ineligible for participation in the deferred disposition program.
While this program offers a unique way to protect your rights, you should carefully discuss whether the program is right for you with your attorney. A plea to the charge limits your defense, and the program requirements are strict. If you fail to meet those requirements, you face the penalties described above.
Consult Your Virginia Criminal Defense Attorney
A conviction for assault and battery against a family or household member has serious consequences which can greatly affect your life. Even if the police and prosecutor treat you like you are guilty, you still have legal rights and defenses.
Contact Virginia criminal defense attorney Bryan J. Jones to help you fight domestic assault charges in Virginia. Contact us today.