The Confusion Surrounding Domestic Violence Charges

September 08, 2022 Written by
The Confusion Regarding Domestic Violence Charges The Confusion Regarding Domestic Violence Charges Washington Attorney Jennifer Witt

Were You Charged With Domestic Violence?

 

Actually, no. In Washington, you are charged with a crime and the domestic violence or “DV” tag is added to your criminal charge. This confuses a lot of people so they frequently call our office and want representation for their domestic violence charge. Since there are so many criminal charges that can have the domestic violence tag, it’s important to know where to start when you call around to find a lawyer.

First, most DV cases involve an underlying assault charge. We see Assault in the Fourth Degree most often. Typically this happens when someone in the household or some kind of relationship accuses a person of an act that falls under RCW 9A.36.041:

 

Assault in the Fourth Degree

 

(1) A person is guilty of assault in the fourth degree if, under circumstances not amounting to assault in the first, second, or third degree, or custodial assault, he or she assaults another.

(2) Assault in the fourth degree is a Gross Misdemeanor, except as provided in subsection (3)(b) & (3)(b) of this section.

(3)(a) Assault in the fourth degree occurring after July 23, 2017, and before March 18, 2020, where domestic violence is pleaded and proven, is a class C Felony if the person has two or more prior adult convictions within ten years for any of the following offenses occurring after July 23, 2017, where domestic violence was pleaded and proven:

(i) Repetitive domestic violence offense as defined in RCW 9.94A.030;

(ii) Crime of harassment as defined by RCW 9A.46.060;

(iii) Assault in the third degree;

(iv) Assault in the second degree;

(v) Assault in the first degree; or

(vi) A municipal, tribal, federal, or out-of-state offense comparable to any offense under (a)(i) through (v) of this subsection.

For purposes of this subsection (3)(a), "family or household members" for purposes of the definition of "domestic violence" means spouses, domestic partners, former spouses, former domestic partners, persons who have a child in common regardless of whether they have been married or have lived together at any time, persons sixteen years of age or older who are presently residing together or who have resided together in the past and who have or have had a dating relationship, and persons sixteen years of age or older with whom a person sixteen years of age or older has or has had a dating relationship. "Family or household member" also includes an "intimate partner" as defined in RCW 10.99.020.

(3)(b) Assault in the fourth degree occurring on or after March 18, 2020, where domestic violence against an "intimate partner" as defined in RCW 10.99.020 is pleaded and proven, is a class C Felony if the person has two or more prior adult convictions within ten years for any of the following offenses occurring after July 23, 2017, where domestic violence against an "intimate partner" as defined in RCW 10.99.020 or domestic violence against a "family or household member" as defined in (a) of this subsection was pleaded and proven:

 

(i) Repetitive domestic violence offense as defined in RCW 9.94A.030;

(ii) Crime of harassment as defined by RCW 9A.46.060;

(iii) Assault in the third degree;

(iv) Assault in the second degree;

(v) Assault in the first degree; or

(vi) A municipal, tribal, federal, or out-of-state offense comparable to any offense under (b)(i) through (v) of this subsection.

 

What Is An Assault?

 

The statute above contains a lot of information but it never really tells the reader what does it mean to commit an assault. In our state, the legislature has not precisely defined the term assault. It is our courts that have provided guidance on the topic through case law. The basics of this case law tell us that, to be accused of an assault, the defendant must:

•  Intentionally touch or strike the victim in a harmful or offensive way, OR

•  Attempt to inflict injury to the victim when the accused had the apparent ability to do so, OR

•  Act in such a way that the accused intentionally placed the victim in apprehension of harm.

 

Just like the statute, the guidance from the courts often adds more questions than answers. For that reason, assault cases can be quite tricky. Unlike DUI cases where you can tell within five minutes if a person has a solid trial case and good chance of winning, the assault cases pose much greater risk. Unless there are unbiased and sober witnesses to the event, the case often boil down to “he said—she said” situations. Those make for problematic trial cases and prosecutors rarely back down from their position to prosecute. And, unfortunately, the prosecutor will often add “hold back” charges if you choose to take the case to trial.

 

If Assault Trials Are So Risky, How Do I Defend Myself?

 

There are several defenses to assault cases but you need a very experienced defense attorney to analyze your case in detail. It is important to consider the defenses and likelihood of success before forcing the prosecutor to a posture where trial is inevitable—particularly where it is a bad trial case for the defendant.

 

And, while the accuser may have some serious factual challenges to his or her version of events, it can be very challenging to attack the “victim” during a trial. It is a tactical decision that the attorney really has to weigh in the defense strategy. That can be very frustrating for the accused since he or she wants to explain how the “victim” is not really a victim. However, the legal defenses that an experienced attorney is considering often are not intuitive to the accused. Non-lawyers often want to talk about the victim and disparage his or her character. Unfortunately, character evidence is rarely admitted in a trial so the defense strategy can be quite different than what the client expects. Experienced criminal defense lawyers will know what evidence will be admitted or allowed at trial and what evidence will be objected to and likely not permitted by the judge.

 

Finally, if the victim does not feel like a “victim” or is non-cooperative with the state, that can change how defense approaches the situation. That is not to say that the victim can “drop charges” because only the State can bring or drop criminal charges. And, prosecutors are trained to understand that true domestic violence victims frequently recant their stories out of fear. So, simply because the victim in your case wants to see the charges dismissed does not mean as much as you might think.

 

Delays in Hiring Defense Counsel Can Create Even More Problems

 

One thing is for sure, any assault charge is incredibly serious. Things happen quickly that non-lawyers aren’t aware of and the accused needs guidance and advice immediately. The trajectory of your case is greatly impacted by how quickly you get a very experienced local criminal defense attorney on the case. When your case has a domestic violence tag, there are additional consequences that the attorney is going to want to try to mitigate right away. So, if you or a loved one is accused of assault in Western Washington, contact our office right away.

 

We are here for you 7 days a week. (360) 792-1000 (call or text)

 

You can learn more about Assaults and the Domestic Violence Tag by clicking on the links below 

 

An Explanation of Washington's Mandatory Arrest Law

Was Calling The Police A Mistake And Did It End In An Unwanted Assault Charge?

Do Not Call, Text Or Send Messages To Your Partner Who Has A No Contact Order

 General Info On Assault Charges

No Contact Orders When Charged With Assault