Introduction to Domestic Violence Criminal Defense in Arizona
Because domestic violence implies aggression against loved ones, it is one of the most stigmatized crimes, and thus, one of the easiest to prosecute. Yet, because problems between family members arise with such regularity, it is also a very common charge, and one that is defensible. This article will discuss the criteria required to make a violence charge “domestic,” along with possible defenses if you are charged and penalties if you are convicted.
What makes it domestic?
The factor that makes a violence charge domestic is not location or context, but the relationship of the people disputing. The following list details the relationships that could constitute a domestic violence charge:
-Formerly married couples
-Persons residing or having resided in the same household
-Couples who have a child in common
-A victim/defendant who is pregnant by the other party
-A child victim who resides or has resided in the same household as the defendant and is blood related to someone residing in the house.
Persons related by blood or court order who are:
Additionally, domestic violence only encompasses a certain group of violent crimes, including but not limited to:
How does the police officer make a determination?
Domestic violence disputes almost always occur in the home, for obvious reasons, but do not have to. For instance, if a husband and wife have a fight in the mall this would still be considered a domestic dispute. If the domestic dispute does occur in public, this makes the determination of who was the most blameworthy fairly simple, since there are likely to be several witnesses. Yet, if the domestic dispute occurs privately in the home as it usually does, the officer’s determination has to come entirely from his or her own judgment of the situation.
Often, a neighbor will call the police after hearing yelling and screaming. Although a neighbor’s testimony could provide the officer with useful information, they could just as often skew the perception of the officer and limit their objective judgment. For instance, a neighbor may call the police with the information that a man is yelling harshly at a woman. Already, based on this information and our cultural understanding of gender roles, the officer assumes the man is the abuser. Yet, what if the yelling was provoked because the woman cheated on him? What if the man is trying to defend himself from the woman? Because we assume men are aggressive and women are docile, officers may pre-judge situations in favor of the woman before they even knock on the door. If you believe you were unfairly charged with a domestic violence charge, be sure to hire an experienced criminal defense attorney who is capable of exposing the holes in the prosecution’s case.
Yet, it is not debatable that men are on average much bigger and stronger than women, and thus, can do more damage. A police officer who did not witness the actual events is looking for any probable cause evidence they can find, and physical injury is just about the clearest evidence they can obtain outside of a video tape of the event. Even if the fight was mutual, an injured woman and an uninjured man will almost always result in the arrest of the man. The same is probably true with the situation gender reversed- an injured man and uninjured woman- but because of the gender stereotypes mentioned above, our confidence in the officer’s determination is a bit less assured. For more information on domestic violence see the AZ Court’s website.
If you are convicted of a domestic violence charge, the punishments will differ drastically based upon the nature of the charge. However, most first-time domestic violence offenders are only charged with a misdemeanor and little to no jail time, although the law does not preclude it. All domestic violence charges also require 26 sessions of domestic violence classes, along with possible anger management classes. Additionally, most offenders are put on probation for a year.
If you are found guilty of a misdemeanor domestic violence charge three times in an 84 month period, you will be charged with aggravated domestic violence, which is a Class 5 felony charge. This carries with it a prison sentencing term of up to two and a half years, along with several other penalties including fines and probation.
If you caused serious bodily harm to the victim or used a weapon, the charge can be raised to a Class 3 felony, even for a first-time offender. A Class 3 felony carries with it a sentencing range of five to fifteen years, along with other hefty penalties.
Even though domestic abuse carries an added layer of negative connotation to regular abuse charges, the courts are designed to give an equal opportunity to both the prosecution and the defense. Thus, if you and your defense attorney have swaying evidence or can weaken the prosecution’s evidence, there is good chance for exoneration from a domestic abuse charge.
The first possible defense is for the defendant to outright claim that the prosecution has the wrong suspect. For this defense to work, the defendant must be able to prove their whereabouts through a reliable alibi, and the prosecution must have very limited evidence.
This defense strategy almost invariably bleeds into the next defense strategy, which is to claim that the victim’s allegations are deliberately false. This defense is more common than many would think; family members, especially those undergoing child custody or divorce issues, will claim abuse out of spite or to give them an advantage in future custody or divorce proceedings. If the accuser outright lies about the abuse, or illicitly blames outside abuse on the defendant, the prosecution will likely have a debilitating lack of evidence which the defense could exploit through inconsistencies between the prosecution’s story and police reports.
Another common defense strategy is to claim self-defense. In this legal sense, self-defense applies to both defense of oneself and one’s children. In order for this defense to be successful, you must prove that you were responding to a direct, immediate threat, that you responded in a proportional manner, and that you were not the aggressor. For instance, let us say a mother is angry with her child and is striking the child repeatedly on the face. The husband interjects and pushes his wife into a door, injuring her, and she calls the police. This case is defensible for the husband if he can prove the prior abuse of the child. Yet, let us say the wife is hitting the husband with an open hand on the arm and he reacts with the same shove into a door. Although it is still technically “self-defense,” it violates the proportional manner clause, and will likely still be prosecuted by an Arizona court. Because self-defense is so subjective and relies so heavily on hearsay, hiring an experienced defense attorney is crucial. This is especially true if you are a man dealing with a woman’s accusation, since the very concept of self-defense is taken less seriously in a case of female aggression against a man.
Although it is rare, another defense strategy is to prove mutual consent of both parties. This defense will be most prevalent with romantic pairs, who perhaps become a bit too aggressive in the bedroom, or roommates who have a history of fighting or wrestling. To use this defense, you must have evidence of either a precedent of this aggressive behavior or of explicit consent. For instance, let us say a guy and his roommate have a history of consensual wrestling in their apartment, but one day, one roommate injures the other, leading to the accusation of domestic abuse. If the accused can find people who understand the roommates’ relationship and can testify that wrestling was a normal and consensual activity, the charges may be dropped.
It must be noted, though, that this defense does not justify any aggression based on the presence of past aggression. In that same instance of roommate wrestling, if the abuse involved a punch in the face (clearly not a wrestling move), the accused will be charged all the same. The same can be stated for the romantic side of this defense, though the line drawn between consent and abuse may be much harder to gauge for two reasons. The first is that sexual fetishes are completely unpredictable between couples, with no marker distinguishing what is possible from impossible. Where a court could rule that a swift punch to the face is not a wrestling move, they could not similarly state that a swift punch to the face is not a sexual fetish, because it very well could be. The second is that couples tend to not discuss their sex lives with others, meaning that friend or relative testimony is a near impossibility. If you have been accused of sexual domestic violence, it is incredibly important to hire an experienced defense attorney who can reveal the truth of the situation where hard evidence is not available.
A final recommended defense is one that applies to every criminal charge- constitutional rights defense. If the presiding police officer made any number of mistakes, including not reading Miranda rights, unfairly interrogating, conducting an illegal search or seizure etc., you can get your case removed. With the high pressure and emotional volatility of domestic abuse cases, it is very possible a police officer made a mistake that could grant you your freedom. It must also be noted that if the domestic abuse charge involves drug or alcohol intoxication, you can appeal the courts for rehabilitation instead of possible jail time.
Although domestic abuse is a serious and heavily stigmatized charge, it is also highly defensible. While millions have been victims of domestic abuse, there have also been many falsely accused. Extenuating circumstances are rife in domestic abuse cases, and exposing these is crucial to a successful defense. However, this article should NEVER dissuade a victim of domestic abuse to not speak out just because of the defensibility of these charges. If you or anybody you know is a victim of domestic abuse, call 9-1-1 immediately.
Interested in learning more about domestic abuse defense in the state of Arizona? We’d love to hear from you! Comment below or reach out to us on our social media channels. If you need criminal defense assistance for a domestic abuse charge in the state of Arizona, contact an experienced defense attorney today.