Domestic Violence laws can be used to address relationship violence through criminal charges, Domestic Violence Restraining Orders (DVROs) in Family Court, and when a student accuses another member of a school community in a Title IX investigation at a university or school. While many considerations are the same in all three contexts, there are some distinctions between the three situations.
I have been a lawyer and advisor since 1993. In that time, I have successfully represented hundreds of clients in criminal, family law, and Title IX domestic violence cases. I have represented both accused persons and accusers. My approach to each case is to learn what happened from my client and when possible, from the investigation of the case.
I help my clients develop an effective narrative of the case, prepare them to testify convincingly, and answer questions effectively in court cases, interviews, and hearings. I work with my clients to gather evidence and identify witnesses who can help support their side of the case. My goal is to make sure that my client presents his or her case as convincingly and effectively as possible.
What Acts Are Considered Domestic Violence?
Domestic violence exists when two people are in a domestic relationship and there is an act of physical violence, threat of violence, stalking, or certain other conduct, violation of a court order against domestic violence, and some other conduct, such as taking away a phone from a person who is trying to report domestic violence or even emotional abuse. Domestic violence does not require any physical injury. Domestic violence can be committed at any age, by a person of any gender, and against a person of any gender. Domestic violence can have serious legal consequences, even if the alleged victim does not contact the police or seek medical treatment.
What Relationships Are Subject to Laws Against Domestic Violence?
Domestic violence laws apply to violent or abusive actions and threats between people who are related or in a “close relationship.” California defines the relevant relationships for domestic violence in Family Code Sec. 6211. Generally speaking, laws against domestic violence apply to:
Married or registered domestic partners,
Divorced or separated partners,
Partners who are dating or used to date,
Partners who are living together or used to live together as defined in Family Code Sec. 6209,
Parents together of a child, or
Any people who are closely related (parent, child, brother, sister, grandmother, grandfather, in-law).
Domestic Violence Laws Generally Do Not Apply To:
Roommates and housemates who have never had a “dating relationship,” are not related, or do not have a child together,
Close friends who have never had a dating relationship, or
People who have only had casual sex with one another but have never been in a “dating relationship.”
How Does the Law Define a “Dating Relationship”?
In modern times, people have many kinds of intimate relationships. Sexual hookups, “Friends with Benefits,” Polyamory, and other types of relationships are more common and openly practiced than in the past. Courts and legislatures have considered what kinds of relationships amount to a “dating relationship” for purposes as domestic violence laws. California courts have ruled that Domestic Violence Law “reflects no legislative intent to extend its protection to all categories of people who have social relationships with one another.” Instead, the courts have stated that a “dating relationship” refers to serious courtship.
It is a social relationship between two individuals who have or have had a reciprocally amorous and increasingly exclusive interest in one another…” The California Legislature has specified the definition of a “dating relationship” in Family Code Sec. 6210, “frequent, intimate associations primarily characterized by the expectation of affection or sexual involvement independent of financial considerations.
Under this definition, a dating relationship does not apply to people simply because they have had sex with one another. For example, people who met for sex through a dating app, but did not continue to have a relationship, a “one night stand,” partners who have sexual hookups from time to time, but have no expectation of ongoing affection, people who had sex at a sex party, or a relationship between a sex worker and a client are not deemed by law to be in a “Dating relationship.”
On the other hand, whether or not a couple has engaged in sexual activity, two people who have engaged in an ongoing relationship based on amorous interest in one another, which would have been called “courting” in past generations, would be considered to be in a “dating relationship,” under California laws.
Do Domestic Violence Laws Apply to LGBTQA Relationships?
State domestic violence laws and Title IX apply to intimate relationships regardless of the gender, sexual orientation, gender identity, or sexual practices of the persons affected. Domestic violence laws can apply in opposite sex, same-sex, non-binary, or polyamorous relationships or groupings. Also, a person can be in more than one relationship at the same time that qualifies for domestic violence laws.
Criminal Laws Related to Domestic Violence
Criminal laws apply in domestic violence cases when a person is arrested by police for violating domestic violence laws, is charged with a crime, and is brought to court. To be criminally convicted of domestic violence, the defendant (the person accused of the crime) must either be found guilty beyond a reasonable doubt by a judge or jury or have consented to a plea bargain and entered a guilty or no contest plea.
Domestic violence charges can be misdemeanor or felony charges. The court in a domestic violence criminal case is required to set bail for the defendant and is required as a condition of bail to issue a “Criminal Protective Order” prohibiting further violence against the alleged victim and requiring the accused person to have no contact with and stay away from the alleged victim. As a condition of release, the defendant is also required to get rid of any firearms and ammunition they own or have access to, and to submit proof to the court that these were either sold to a third party, or are being stored with a law enforcement agency or licensed firearm dealer.
These orders can require the accused person to move out of a shared home, even if they are the owner or leaseholder of the residence. In some situations, such as where the two partners share custody of a minor child, the order may permit peaceful contact limited to the purpose of caring for the child.
The alleged victim does not have the right to “drop the charges.” Although she or he can notify the police, the prosecutor, or the court that they want the case to be dismissed, the accuser’s wishes do not determine the outcome of the case. The prosecutor determines whether or not to proceed with the case, and has the authority to determine that the case deserves to move forward with prosecution, even when this goes against the wishes of the alleged victim.
When the accuser refuses to cooperate in a criminal case, it sometimes forces the prosecutor to dismiss the charge, but in other cases, there may be sufficient evidence to proceed to trial and convict the defendant, even if the alleged victim refuses to testify. For example, there may be other people who witnessed the violence, such as a child or housemate who saw and heard the incident. In some cases, the accuser’s call to 911 can be played to the jury, even without her or his testimony, as an exception to the “hearsay rule.”
A criminal conviction for domestic violence can have serious consequences. Whether the charge is a felony or a misdemeanor, the defendant is required to complete a 52-week Batterer’s Treatment Program, sometimes referred to as “Domestic Violence Classes.” Also, persons convicted of domestic violence are prohibited from owning, possessing, or having access to firearms or ammunition. This requirement still applies to Armed Forces Personnel, Law Enforcement Officers, and security guards, and can result in discharge or loss of employment. Felony convictions can result in a prison sentence of up to a year of county jail as a term of probation. Misdemeanor convictions can result in a county jail term as a condition of probation as well.
If you are arrested and charged with a domestic violence case, you are entitled to have an attorney. Reach out to my office today to put an experienced domestic violence attorney on your side.