“Domestic Violence” is a highly charged term, one that creates an immediate emotional reaction in the mind of the average citizen. No one wants to see violence within a family or dating relationship. But there are few areas of criminal law that are filled with more pitfalls, stereotypes, and presumptions than domestic violence law.
“Domestic violence” (or “DV”) is defined in Washington law as:
(b) Sexual assault of one family or household member by another; or
(c) Stalking of a family or household member by another family or household member.
A domestic violence charge doesn't necessarily have to be an assault – RCW 10.99 lists potential crimes which can be classified as “Domestic violence” charges when committed by one family or household member against another. Even this list is not exhaustive, this office has represented on other matters with a “Domestic Violence” tag attached. If you are charged with a felony domestic violence charge, that means that the underlying charge is a felony, and the prosecutor has determined that the alleged victim is someone who fits the definition above.
Potential charges which may be classified as “DV” (this is not an exhaustive list): Assault in the first degree; Assault in the second degree; Assault in the third degree; Assault in the fourth degree; Drive-by shooting; Reckless endangerment; Coercion; Burglary in the first degree; Burglary in the second degree; Criminal trespass in the first degree; Criminal trespass in the second degree; Malicious mischief in the first degree; Malicious mischief in the second degree; Malicious mischief in the third degree; Kidnapping in the first degree; Kidnapping in the second degree; Unlawful imprisonment; Rape in the first degree; Rape in the second degree; Residential burglary; Stalking; Interference with the reporting of domestic violence; and Violation of the provisions of a restraining order, no-contact order, or protection order. Note: there are a number of different types of “no-contact” orders, some issued in the civil context, some in a criminal proceeding. See 10.99.040, 10.99.050, 26.09.300, 26.10.220, 26.26.138, 26.44.063, 26.44.150, 26.50.060, 26.50.070, 26.50.130, 26.52.070, or 74.34.145
Under Washington Law, an officer shall not be held liable in any civil action for an arrest based on probable cause, enforcement in good faith of a court order, or any other action or omission in good faith under this chapter arising from an alleged incident of domestic violence brought by any party to the incident. What this means is that an officer has clear protections for his/her actions against a lawsuit, if they arrest a person who they have “probable cause” to believe has committed domestic violence. Probable cause is a low burden, and you will typically see officers arrest someone in an abundance of caution if “domestic violence” is reported.
In most courts in Washington, a domestic violence allegation will trigger a nearly “automatic” order prohibiting contact with the alleged victim. This order can later be modified or lifted, but the practical effect is that some defendants cannot return to their homes after they are released from custody. Contact with the alleged victim in these circumstances would lead to a new charge. This can include text messages, contact online, email contact, contact through a third party (relaying messages), or personal contact. If the contact is determined to be an “assault” – it can lead to a felony charge for a felony violation of a no contact order. It's important to have an attorney familiar with domestic violence laws to combat the assumptions and prejudice that come from domestic violence charges.
Many people mistakenly believe that the contact does not constitute a violation if it is “invited” by the alleged victim. This is not the case. Be very careful about any contact from the “alleged victim.” If the alleged “victim” contacts a defendant, invites them to talk, visit, etc., and the defendant does not immediately discontinue the communication, the defendant can not only face new criminal charges, but the court can find the defendant in violation of a pretrial order of release, and remand the defendant back into custody if a criminal charge is pending.
An additional gross misdemeanor can be charged if there is an alleged act of domestic violence, and there is also an allegation that the defendant prevented or attempted to prevent a victim or witness from calling 911 or obtaining medical assistance. This is a charge under RCW 9A.36.150.
The unique consequences of a Domestic Violence conviction
A conviction for “domestic violence” carries some unique consequences above other criminal convictions. You lose your right to possess firearms, you are statutorily required to undergo “batterer's treatment” counseling, and you will have an additional period of time before you can petition the court to vacate a conviction (as opposed to other charges). For typical misdemeanors, you must demonstrate 3 years of lawful behavior after the jurisdiction of your charge is over before you can petition for a vacate of your conviction. For a DV charge, the wait time is 5 years.
Additionally, the “domestic violence” tag has impacts on future job prospects, security clearances, and credit approvals. It is viewed as a more serious charge than the average criminal offense, even if the behavior behind the charge wasn't inherently violent or assaultive. It is a very damaging factor in any pending divorce or dissolution, particularly if there is a child custody matter or a parenting plan before the court for consideration.
If the criminal charge is a felony, the “domestic violence” tag/designation can restrict you from some sentencing alternatives and opportunities for reduced jail time. It can allow the court to find cause for an “exceptional” sentence (one beyond the standard sentencing range), and it can require additional conditions and treatment.
Please contact our office for a consultation if you are facing a domestic violence charge, and we can discuss your options in fighting this very serious allegation.