Domestic Violence Laws

Law enforcement takes reports of domestic violence very seriously, and rightfully so. However, these situations sometimes turn out to be more complex than they seem at first glance. Someone who has been arrested for domestic violence should not try to explain their side of the story to the police directly. Instead, they should contact a lawyer who can navigate the process for them.

What Is Domestic Violence?

Domestic violence occurs when a person harms someone who has or had a certain type of relationship with them, such as a family or romantic relationship.

Elements of Domestic Violence

A prosecutor seeking a conviction involving domestic violence must prove that the defendant committed an act within the scope of an applicable statute. People generally think of physical incidents like assault and battery when they think of domestic violence, but it does not necessarily involve bodily harm. For example, a defendant might face a charge for stalking or threatening someone else or trespassing on their property.

When a charge has a domestic violence component, the prosecutor will need to show a particular relationship between the defendant and the affected person. Definitions of covered relationships vary by state, but often these include spouses, boyfriends or girlfriends, family members, and people who share a child. Some definitions of protected groups may cover roommates and other people who live with the defendant but do not have a family or romantic relationship with them.

Examples of Domestic Violence

Some readers may find these hypothetical narratives disturbing.

Phil gets upset when his girlfriend tells him that she is pregnant. When he cannot convince her to get an abortion, Phil pushes her against a wall and puts his hands around her neck.

Patrick suspects that his ex-wife was cheating on him and follows her constantly in an effort to confirm his suspicions. When she asks him to stop, Patrick shows her a gun and says that he plans to shoot her if he ever finds her with another man.

Offenses Related to Domestic Violence

Various offenses that might be charged in situations that could result in a domestic violence charge include:

• Assault and battery: intentionally putting someone in reasonable fear of imminent harm, or actually harming them
• Kidnapping: often seizing someone and taking them to a different place by force
• Arson: could be charged if someone sets fire to the property of their ex as revenge
• Sexual assault: a variety of non-consensual sexual acts, ranging from intercourse to touching
• Stalking: relentless and unwanted attention, harassment, or other conduct targeting a particular person, which would cause a reasonable person to feel afraid
• Child abuse: perhaps the defendant harmed someone else’s child in an effort to intimidate them

In some states, domestic violence may be charged as a sentencing enhancement of an underlying crime such as these, rather than a separate offense.

Defenses to Domestic Violence

If a domestic violence charge involves physical force, the defendant might argue that they acted in self-defense. This means that they were justified in using force because they reasonably feared a threat of imminent harm by the other person. The force that they used must have been proportionate to the threat. For example, someone might be entitled to punch their significant other if that person was trying to strangle them. However, they could not respond to a hand raised for a slap by shooting the other person.

Consent also may provide a defense in some cases involving intimate relationships. Perhaps someone agreed to be handcuffed or tied up while roleplaying a sexual fantasy. A defendant may have a stronger consent argument if they can show that the incident fits into a pattern of similar consensual interactions with the accuser. (However, past consent does not equate to present consent.)

More generally, a defendant might question the credibility of the accuser and any other prosecution witnesses. While domestic violence occurs far too often, false accusations sometimes happen. The accuser might be trying to get revenge against the defendant, deflect attention from their own wrongdoing, or gain an advantage in an ongoing family law proceeding. For example, they might think that a judge will give them sole custody of a child if the other parent is seen as an abuser. A third-party witness like a neighbor also might have misinterpreted something that they saw or heard, lacking the context of the relationship.

Penalties for Domestic Violence

Potential jail time for a domestic violence conviction varies by state and the type of conduct involved. Here are some examples of sentences for certain crimes:

• Florida: up to 5 years for domestic battery by strangulation
• Georgia: up to 12 months for family violence battery
• Illinois: less than 1 year for domestic battery
• Michigan: up to 93 days for domestic assault or assault and battery
• Nebraska: generally up to 1 year for domestic assault
• Pennsylvania: up to 10 years for strangulation of a family or household member
• Texas: 2-10 years for domestic violence strangulation
• Virginia: up to 12 months for assault and battery against a family or household member

Someone who has committed domestic violence also might face a restraining order (often known as a protection order) that requires them to stay away from the affected person and places such as their home or workplace. A judge may issue this order as part of a criminal case, or a person who has experienced domestic violence might pursue an order in a separate civil proceeding. Violating the order is usually a distinct crime that carries additional penalties.

Last reviewed August 2024