Domestic violence is a serious criminal charge in Virginia. A conviction for domestic violence can result in jail time, fines, and restrictions on contacting the other person even after being released. Even an arrest for domestic violence can harm someone's reputation despite the fact that they were never convicted.

Innocent people can be arrested for domestic violence for something that was an accident, the other person started, or even for a made-up story. Facing a criminal prosecutor, the defendant may just accept the plea deal to avoid the most serious penalties. Before pleading guilty to domestic abuse charges, make sure you understand your rights. If you are facing criminal assault in Virginia, contact me today.

Assault and Battery Against a Family or Household Member Law in Virginia

One of the crimes of “domestic violence” in Virginia is called “assault and battery against a family or household member.” Under Virginia Code § 18.2-57.2, any person who commits an assault and battery against a family or household member is guilty of at least a Class 1 misdemeanor.

An assault in Virginia is where the defendant:

1. Engages in an overt act,
2. With the intent to inflict bodily harm, and
3. Has the present ability to inflict such harm.

Alternatively, an assault can occur where the defendant engages in an overt act intended to place the victim in fear or apprehension of bodily harm and creates such reasonable fear or apprehension in the victim.

Battery is the willful or unlawful touching of another. The touching does not need to result in any injury and can include touching done in the spirit or rudeness or insult. Accidental touching is not a battery, as long as it was not done recklessly.

Who is a household or family member under Virginia's domestic violence laws?

The primary difference between assault or battery and assault or battery against a family or household member is that with the latter, the assault is against someone the defendant is related to, and/or lives with. A “family or household” member includes the person's

• (i) the person's spouse, whether or not he or she resides in the same home with the person,
• (ii) the person's former spouse, whether or not he or she resides in the same home with the person,
• (iii) the person's parents, stepparents, children, stepchildren, brothers, sisters, half-brothers, half-sisters, grandparents, and grandchildren, regardless of whether such persons reside in the same home with the person,
• (iv) the person's 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,
• (v) 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 at any time, or
• (vi) 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.

Discretionary Arrest of the Predominant Physical Aggressor

Generally, when the police show up to a domestic disturbance call, they will make an arrest. Law enforcement has discretionary power to make an arrest without a warrant for domestic violence or violation of a protective order even if the officers didn't witness the violation. Police can make an arrest based on “the reasonable complaint of a person who observed the alleged offense.”

The police will arrest and take into custody the person believed to be the “predominant physical aggressor,” based on the circumstances. Even if the other person started a fight, the police will arrest the individual who they believe to be the predominant physical aggressor.

Penalties for Domestic Violence

The penalties for a domestic violence conviction may depend on a number of factors, including the individual's prior criminal history. Assault and battery against a household or family member is generally a Class 1 misdemeanor. The maximum penalties include:

• Up to 12 months in jail, and
• A fine of up to $2,500.

A second offense within 20 years of domestic assault, strangulation, or certain other violent crimes, is classified as a Class 6 felony. The maximum penalties for a Class 6 felony conviction include:

• From 1 year to 5 years imprisonment, or
• In the discretion of the jury or court, confinement in jail for not more than 12 months and a fine of up to $2,500.

Whenever a warrant is issued for domestic violence, an emergency protective order is authorized against the defendant.

Protective Orders in Domestic Violence Cases

A protective order is an order issued by the court to “protect” the alleged victim from harm or contact. The details of the protective order may depend on the situation, but they generally prohibit any contact between the parties, including electronic contact.

Protective orders in domestic violence cases are usually classified as a:

• Preliminary Protective Order,
• Emergency Protective Order,
• Permanent Protective Order

A preliminary protective order can be issued based on a court order. An emergency protective order may be issued based on a law-enforcement officer or allegedly abused person's oath that there is a probable danger of further acts of family abuse. A protective order can impose certain conditions on the alleged abuser, including:

• Prohibit acts of abuse or criminal offenses,
• Prohibit physical contact with the allegedly abused person, family or household members, and children,
• Prohibit other contact, including phone, email, text, or social media messages,
• Grant the family or household member possession of the premises and prohibiting the alleged abuser from occupying the premises, and
• Granting possession of a companion animal.

In Virginia, individuals subject to a domestic violence protective order can also be prohibited from possessing a firearm.

Violation of a Protective Order in Virginia

Under Virginia Code § 18.2-60.4, any person who violates any provision of a protective order is guilty of a Class 1 misdemeanor. The maximum penalties for a Class 1 misdemeanor conviction include:

• Up to 12 months in jail, and
• A fine of up to $2,500.

A second offense for violating a protective order within 5 years (where there was an act or threat of violence) carries a mandatory minimum sentence of 60 days confinement.

A third or subsequent offense for violating a protective order within 20 years (where there was an act or threat of violence) is a Class 6 felony. The penalties for a Class 6 felony include:

• From 1 year to 5 years imprisonment, or
• In the discretion of the jury or court, confinement in jail for not more than 12 months, with a minimum of 6 months confinement, and
• A fine of up to $2,500.

Charlottesville Domestic Violence Defense Lawyer

Anyone facing domestic violence charges in Virginia should contact an experienced criminal defense lawyer. The penalties for a domestic violence conviction can include jail time and can impact your family, job, and reputation in the community. If you have been charged with domestic violence in Charlottesville, contact me today for a free consultation.