What is Domestic Violence

Domestic violence is a term used to describe violent behavior that occurs within a domestic relationship. The term normally applies to a spouse or domestic partner, or to a child living in the household, but may extend to dating relationships and other shared living arrangements.

Domestic violence may involve more than physical abuse or sexual violence. It may also involve emotional and psychological abuse, and economic coercion. However, for purposes of criminal law the focus is on actions by a domestic abuser that create fear of imminent injury, result in unwanted physical contact, or cause physical injury to the victim.

Domestic Relationships

When a qualifying relationship exists, a person who commits a battery against another person within the domestic relationship can be charged with domestic violence. A domestic violence or domestic battery charge may allow a defendant to avoid a criminal conviction, particularly for a first offense, by providing for a deferred sentence.

Domestic violence may be committed against a spouse or romantic partner against the other partner. Although a parent's act of battery toward a minor child is more likely to be charged as child abuse, domestic violence can be committed by a parent against a child, a child against a parent, or between siblings.

Where an act of violence is committed against a former spouse or romantic partner, or a person who has had a child with the offender, it is possible for the offender to be classified as domestic violence even after the relationship with the victim has ended and they have moved to separate households.

Consequences of a Domestic Violence Charge

As with any crime, a domestic violence charge may result in a criminal conviction. With conviction comes the possibility of incarceration, probation, as well as financial consequences such as fines, court assessments and restitution to the victim.

However, in order to reduce the incidence of domestic violence and to prevent recurrence, domestic violence are treated differently than ordinary battery cases:

  • Mandatory Arrest: In most U.S. jurisdictions, if the police respond to a domestic violence call and find probable cause that an incident of domestic violence occurred, the police must arrest the person who they found to have committed an act of domestic violence and remove that person from the household.
  • Domestic Violence Injunctions: When a person is charged with domestic violence, it is common for the court to order the person to have no contact with the alleged victim of the crime while the charge is pending, and those restrictions may be continued following conviction. The victim of domestic violence may also seek an order of personal protection or anti-stalking order to restrict further contact.
  • Firearms Rights: A domestic violence conviction can result in the loss of the right to own or possess a firearm, and thus may carry significant career consequences for people in law enforcement, or who work in or plan to enter careers where it is necessary to possess or carry a firearm.
  • Immigration Law: Victims of domestic violence who are immigrants to the United States may be able to maintain their presence in the U.S. or qualify for legal permanent residency, even after ending the relationship with an abusive spouse or partner who helped them gain entry into the United States.
  • Child Custody: In most states, a court must consider a parent's history of domestic violence when making a child custody determination, even if the act of domestic violence was directed at somebody other than the child's other parent, such as a prior spouse or new romantic partner. Courts will also consider whether any act of domestic violence occurred in the presence of the minor child and, if so, may give great weight to that history.

Battered Woman Syndrome

In many states, a woman who is charged with killing or severely injuring a domestic partner may raise a history of domestic violence, inflicted by that partner, as a defense to a criminal charge. This defense falls under the conception of battered woman syndrome (BWS), a pattern of psychological symptoms and behaviors that may result from long-term abuse.

The theory of BWS is that a woman in long-term abusive relationship may come to blame herself for the abuse and, despite having significant fear for her safety, may believe that the abuser will escalate the abuse or even kill her if she attempts to leave or report the abuse to the police. Fear of retaliation is not without cause, as there are many documented incidents of a perpetrator of domestic violence killing or attempting to kill a partner who is leaving or has abandoned the relationship.

If the defense is accepted, a finding that the woman suffered from battered woman syndrome can be used to mitigate the consequences of a violent offense committed against the abuser. An act of violence that appears to be unprovoked or that occurs when the victim is helpless may be regarded as having been provoked by the past abuse, or to have created a state of mind in which the woman remained in genuine fear for her life and safety. If a claim of BWS is believed, as an example, a charge of premeditated murder could thus potentially be reduced to manslaughter, or in some cases might even be found to be justifiable homicide.

The concept of battered woman syndrome has at times been controversial, and in many jurisdictions the law may now speak of the effects of domestic abuse or battery instead of referring to BWS, eliminating the reference to gender. A broader conception of the consequences of violence may also allow other victims of long-term domestic violence to seek mitigation based upon that history.

Domestic Violence and Firearms Rights

Under a federal law commonly referred to as the Lautenberg Amendment, a person who is convicted of misdemeanor domestic violence or who is under a domestic violence protective order is prohibited from the possession of firearms. This prohibition arises based upon the nature of the relationship between the offender and victim, and thus may result even if the defendant is convicted of an ordinary battery or similar offense that does not rely upon a domestic relationship.

Similar prohibitions may arise under state law, or may be imposed by a court as a condition of the defendant's pretrial release or sentence.

The Lautenberg amendment applies only following conviction. Thus, a person charged with domestic violence may avoid the federal firearms ban, and possibly also avoid restrictions under state law, by entering into a pretrial intervention program or deferred disposition that results in the eventual dismissal of the charge without conviction.

The prohibition on firearms possession does not provide an exception for defendants who are employed in law enforcement, or who are members of the armed services. A domestic violence conviction may thus have serious and potentially career-ending consequences for a person whose employment requires their possession of a firearm.

Three exceptions exist to the application of the Lautenberg Amendment to a person convicted of domestic violence:

  1. For the Amendment to apply, the person must have been represented by counsel, or be found to have intelligently waived the right to counsel for the case;
  2. If the defendant had the right to a jury trial for the charge, the defendant must have either been convicted by a jury to be found to have knowingly and intelligently waived the right to a jury trial; and
  3. The conviction has since been expunged, set aside, or pardoned, with restoration of the person's civil rights including firearms rights.

Few defendants will be able to avoid a firearms ban by raising objections to the court proceedings that preceded their conviction. Thus, for most defendants, relief can only come if they qualify for a pardon, expungement, or dismissal of their conviction, and even then only if that relief from the conviction restores their firearms privileges under state law.

Copyright © 2018 Aaron Larson, All rights reserved. No portion of this article may be reproduced without the express written permission of the copyright holder. If you use a quotation, excerpt or paraphrase of this article, except as otherwise authorized in writing by the author of the article you must cite this article as a source for your work and include a link back to the original article from any online materials that incorporate or are derived from the content of this article.

This article was last reviewed or amended on May 8, 2018.