If you’re facing a Virginia Domestic Assault charge, below is some useful information you’ll need to know. Also, if you haven’t visted our Domestic Assault Practice Page, take some time to learn more your situation by clicking here.
What is Domestic Assault in Virginia?
Virginia’s Domestic Assault statute is Va Code Section 18.2-57.2. Notably, the Virginia Code does not define “assault & battery,” but rather the definition comes from Common Law. In Virginia, you are guilty of domestic assault when:
1) The alleged victim is a spouse, former spouse, parent of a mutual child, household or family member; and
2) You either
- willfully touched the complainant, without legal justification, in a angry, rude, or vengeful manner; or
- you committed an overt act intended to harm the complainant with the ability to do so; or
- you committed an overt act meaning to place the complainant in fear of harm and that person was placed in fear of harm.
For a more detailed discussion of Virginia “assault and battery,” read this article we’ve written. There are two things to think about based upon the above. First, you don’t have to cause injury to be guilty of domestic assault. Merely touching someone in an inappropriate way may be enough. That means a push, shove, slap, or grab can be a domestic assault.
Second, you don’t even have to touch someone to be guilty. You may be guilty if you made movement towards a person intending to place them in fear. For example, throwing an object at someone, and not hitting them, may be sufficient.
What are the Consequences of a Domestic Assault Conviction in Virginia?
In Virginia, a domestic assault is a Class I Misdemeanor. A Class I Misdemeanor is any offense for which you can be incarcerated for a period of up to twelve (12) months, receive a fine of up to $2,500.00, or both. While these are maximums, the actual jail time and fine you receive depends on the underlying facts of your case. This will include your criminal record, the allegations against you, and other variables.
A domestic assault conviction carries additional consequences. If convicted, under federal law, you cannot own a firearm. Individuals in law enforcement, security, or military will clearly have serious issues if convicted.
A conviction will limit the contact you can have with the alleged victim for up to two years. Depending upon the circumstances, the prohibited contact may be no “assaultive or harassing” contact. In other instances, you can’t contact the victim at all. Consider how complex this can be for parents with children.
A conviction also requires probation, generally one to two years. During that time, you must avoid further violations of law. You must also complete a domestic violence course and, often, a domestic violence assessment that may require additional courses.
If you are not a US citizen, a domestic assault may have serious immigration consequences. If you have a security clearance, such a conviction may also cause issues. Finally, domestic assault carries with it the added stigma attached to such a charge. These consequences are not exhaustive and additional, unforeseen consequences may occur.
What Is a “Deferred Finding” and Is It Worth It?
For a first Virginia Domestic assault, the court may offer a, “deferred finding” under Virginia Code Section 18.2-57.3. Under this type of deferred finding, the court finds facts sufficient of guilt of the accuse, but. it withholds an actual conviction for a period of time (usually two years).
During that time, you will have to follow various conditions. These conditions include:
- Probation
- Not possessing firearms
- Anger management classes, and
- Limited (or no) contact with the victim.
If you comply with the court’s orders, the domestic assault charge is dismssed. In some cases, a deferred finding is very favorable. For instance, if you have a high risk of losing at trial, a deferred finding provides a path to avoid conviction.
Are there any downsides to a deferred finding under Code Section 18.2-57.3?
In some instances, a deferred finding under 18.2-57.3 is an excellent outcome. Indeed, if there’s evidence that clearly establishes your guilt, a deferred fnding under this Code allows you a path to avoid a criminal conviction, jail time, and a substial fine.
However, a deferred finding under 18.2-57.3 is not always a great outcome. Particularly, if you are actually innocent of the domestic assault. First, you cannot have a deferred finding expunged from your record. That means that the record of your arrest will always be maintained by law enforcement. Second, if you violated your conditions, you will be convicted. Third, a deferred finding may have collateral consequences. For non-US citizens, a deferred finding may affect their ability to stay in the US.
When determining whether to accept a deferred finding under 18.2-57.3, at Abrenio Law, we urge you to hire an attorney. That way, you can receive specific advice about your case. It’s a big decision and, in our view, it must not be made alone.
Are there any alternatives to a 18.2-57.3 deferred finding? (A discussion of Virginia Code 19.2-298.02)
In 2021, the Virginia General assembly granted a new route to a deferred finding, even if not expressly permitted by statute. Under Virginia Code Section 19.2-298.02, the prosecutor and defendant can agree to a deferred finding. This deferred finding can be agreed upon before or after trial. What’s more, if specifically agreed to, the defendant may be eligible for an expungement if the charge is ultimately dismissed.
To be clear, however, obtaining a deferred finding under Section 19.2-298.02 must be by agreement. When entering this agreement, you are required to waive your right to appeal. And obtaining a deferral by this process is not a typical outcome and often represents something unusual about the case that makes it risky for the prosecutor to obtain a conviction. So, do not assume you’ll obtain a deferred finding by this Section, but speak with your attorney about it.
What if they won’t offer me a 19.2-298.02 deferred finding?
To be clear, you always have a right to go to trial in your case. That means pleading not guilty and forcing the prosecutor to prove the case against you. That also means the ability to testify on your own behalf.
Whether trial makes sense in your case will depend on a lot of factors. And we absolutely urge you to retain an attorney to advise you about the facts of your case and, if in your best interest, try your case for you.
At Abrenio Law, we tell people that if you’re considering trial, that’s the kind of cases that we specialize in. We try domestic assault cases regularly and understand how these charges work.
What if the alleged victim wants to drop the charge?
In Virginia, the Commonwealth Attorney (CA) prosecutes domestic assault charges. Further, the CA represents the entire community. Given this relationship, they often disagree with their alleged victims. In some instances, the CA will force prosecutions over the alleged victims wishes. Therefore, you cannot simply rely on the alleged victim’s desires to drop the case.
To understand why, you must understand the unique nature of domestic violence. Domestic violence is a very serious matter. Domestic assault charges clog the Virginia court system. CAs deal with these charges daily. Their concern is that an accused has forced the alleged victim not to seek a prosecution through threatened or actual violence. However, in too many cases, we see CAs choose to prosecute cases simply because they believe they can win at trial. Regardless of whether it’s in the best interests of the alleged victim.
To win, often, the Commonwealth Attorney compels an alleged victim to testify by threat of contempt of court. Unfortunately, they compel testimony against the victim’s will. (For more information on the rights of alleged victims, check out our article here).
In cases in which the CA cannot force the alleged victim to testify, they will use other evidence to prove guilt. This happens most often when the accused made statements about the assault. Where an accused “confessed” to the assault, the CA needs only “slight corroboration,” for a judge or jury to convict. Therefore, you should tell your attorney what you said to police. (To learn more about why statements to law enforcement matter, click here).
Still have questions?
Virginia Domestic Assault Charges are very serious and complex. So, make sure to check out our Domestic Assault page for more useful articles and videos. Then give us a call at Ph. 703-570-4180 for your Free Consultation.
To learn more about James Abrenio, check out his bio here. You can also read his real client reviews here.