This article is an in-depth, practical discussion of Virginia Domestic Assault Law. James Abrenio has been handling Domestic Assault cases in Northern Virginia for over a decade, and this article was written to answer some of the most common questions he’s received over the years about these charges. The information provided here is meant to be a starting off point to help you discuss your case with your attorney. Ultimately, you will need to have an attorney represent you in court because such charges are really serious, and you should not attempt to represent yourself.
What is Domestic Assault in Virginia?
Virginia’s Domestic Assault statute is Va Code Section 18.2-57.2. In Virginia, you can be convicted of domestic assault when two primary facts are established:
1) The complainant against you is a spouse, former spouse, 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.
This definition raises a couple of important points. First, there is no requirement that physical harm or injury be inflicted to be convicted of domestic assault. Rather, the mere touching of the complainant in an inappropriate way may be enough to convict you. That means a push, shove, slap, or grab can be considered domestic assault. Even if these actions are committed during the context of a mutual argument, it is possible to be convicted.
Additionally, you aren’t even required to have touched the other person if you had the intent to harm them when you took action. For instance, throwing an object towards a person, and not actually having contact with them, maybe enough for a conviction. Therefore, the threshold for being convicted of domestic violence is lower than what most believe.
Additionally, depending on the case, a protective order may also be filed against you.
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 the case, your record, and other variables.
A domestic assault conviction carries additional consequences. First, individuals convicted of a domestic assault are prohibited by federal law from owning firearms. Individuals in law enforcement, security, or military will clearly have serious issues if convicted of domestic assault.
A conviction also requires you to have no contact with the complaining witness for up to two years. Depending on the facts of the case, the prohibited contact may be only no “assaultive or harassing” contact. In other instances, you may be prohibited from contact with the complainant outright. This “no contact” requirement can have serious issues when it comes to individuals who are married or have children. It could expose you to additional criminal liability.
A domestic assault conviction also requires you to be placed on probation for a period of time, generally one to two years. During that time, you must avoid further violations of law and be of general good behavior. You must also enter and complete a domestic violence course and, often, a domestic violence clinical assessment to determine if you need additional treatment. The treatment portion requirements can be taxing and time-consuming. Failure to complete such requirements will obligate you to reappear before the court to answer for you failure to comply.
If you are not a US citizen, a domestic assault can have serious immigration consequences. If you are an American citizen and have a security clearance, such a conviction can 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 can be caused by a conviction.
What Is a “Deferred Finding” and Is It Worth It?
If you have never been convicted of a domestic assault, the court has discretion to grant you a “deferred finding.” This is permitted by Virginia statute under Code Section 18.2-57.3. A deferred finding is when you agree in open court that there is enough evidence of your guilt to convict you, and the court makes a finding that there exists sufficient evidence to find you guilty. But it withholds finding you guilty for a period of time (usually two years). During that time, you are placed on probation, prohibited from possessing or owning firearms, required to complete a domestic violence evaluation and domestic violence classes, prohibited from committing additional violations of law, required to have no contact with the complainant, and other possible requirements. If, at the end of that period of time, you comply with all of the court’s requirements, the charge is dismissed.
In some cases, a deferred finding is very favorable. If the Commonwealth Attorney, known in other states as the district attorney, has enough evidence to convict you, a deferred finding provides an avenue to prevent a conviction on your record, allows you to own firearms after you are off probation, and other benefits.
Nevertheless, a deferred finding has its downfalls. 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, even if you accept the deferred finding, you can ultimately be convicted of the charge and sentenced if you fail to comply with all of the conditions imposed by the court. Thirdly, a deferred finding, in some instances, can be just as bad as a conviction itself. For instance, for non-US citizens, a deferred finding in many instances can be treated the same as a conviction for immigration purposes.
I have had many cases where I represented clients on probation violations after they received a deferred finding. They then tell me the facts of their underlying domestic assault charge, and it turns out that they had possible defenses to the charge. When I ask them why they accepted the deferred finding, they inform me that the Commonwealth Attorney in their case said it would lead to a dismissal without informing them of the issues of accepting a deferred finding.
When determining whether to accept a deferred finding, you need to retain an attorney. You should also be aware that EVEN IF YOU CONTEST THE CHARGE AND LOSE, the court still has discretion to grant you a deferred finding. In practice, whether you will get a deferred finding after losing at trial depends on the particular facts of your case, the Commonwealth Attorney handling your case, and the judge and jurisdiction where you be will appearing.
If the Complainant Does Not Want You to be Convicted, Will the Charges Be Dropped? (“Victimless Prosecutions”)
Many charged with domestic assault have the mistaken belief that because the complainant wants a charge to be dropped, it will in fact be dropped. However, you may have a rude awakening if you rely on this belief when going to court. In Virginia, when you are charged with a domestic assault, the case is prosecuted by the Commonwealth Attorney. While the complainant is represented by the Commonwealth Attorney, the Commonwealth Attorney also represents the community as a whole. Often times the Commonwealth Attorney will force prosecution despite the complainants desire to drop the case.
To understand why, you must understand the unique nature of domestic violence. There is no question that domestic violence is a very serious matter. Domestic assault charges clog the Virginia court system. Commonwealth Attorney’s deal with these charges daily. Their concern is that an accused has forced the complainant not to seek a prosecution through threatened or actual violence. Therefore, in considering whether to prosecute when a complainant seeks the charges to be dropped, the Commonwealth Attorney’s decision is in large part determined upon whether they can get a conviction.
In some circumstances, the Commonwealth Attorney can compel the complainant to testify by threat of contempt of court. Contempt of court means that a person has violated a court order, which would in this case, would be failing to answer questions posed to them during trial. However, this is sometimes difficult from the Commonwealth Attorney’s perspective, and, in many circumstances, a complainant has the ability plead the Fifth Amendment.
In cases in which the Commonwealth Attorney cannot force or perhaps may not want to force the complainant to testify, the Commonwealth Attorney may seek a “victimless prosecution.” Victimless prosecutions occur when the Commonwealth Attorney prosecutes a domestic assault without testimony from the complainant. Such prosecutions can be sought mainly in two ways. The easiest way is when the Commonwealth Attorney has an independent witness that actually saw an accused commit the assault. Unless there is a legitimate issue with that witness’s credibility, the Commonwealth Attorney will likely have a strong case.
Another instance in which a victimless prosecution can be sought is if the accused confessed to the assault to law enforcement or another witness. While the accused cannot be convicted solely on his or her confession, the Commonwealth Attorney need only prove “slight corroborating” evidence of the assault. Such evidence may be visible injury to the complaint or damaged property at the scene of the incident that would indicate a struggle, ripped clothing, etc.
Even if your complainant does not seek a prosecution, you cannot simply sit back and assume your case will be dismissed.
Domestic Assault and How It Progresses Through Court.
If you’ve never been to court before, you may be a bit unfamiliar with the court system and how your domestic assault charge will proceed. In Virginia, there are two levels of trial courts – district courts and circuit courts. Typically, domestic assault charges begin in the Juvenile and Domestic Relations Court (JDR) dealing with family matters or juveniles. It also handles cases in which crimes are alleged between family or household members. Given that domestic assault requires the offense be committed upon a family or household member, it falls within JDR jurisdiction.
When you are given your JDR trial date, that is the date during which your case will likely either be settled by way of a plea agreement or go to trial. In some instances, the case may be “continued,” or postponed. However, you should never assume your trial date will be continued.
Prior to trial, your attorney will prepare your case for trial. Preparation includes reviewing the information that you provide to him, gathering evidence as necessary, and obtaining “discovery.” Discovery is evidence that the Commonwealth Attorney is required to provide your attorney prior to trial. In Virginia, discovery is very limited. In fact, the Commonwealth Attorney is only required to provide you statements that you made to law enforcement, your criminal record and “exculpatory” evidence. Exculpatory evidence means evidence that would show your lack of guilt is very limited in Virginia, and depends on the facts of each case.
Also, you should be aware that the Commonwealth Attorney (CA) is only required to provide discovery “prior to trial.” In many cases, this means literally prior to trial. While some jurisdictions and CAs are more flexible, often times your attorney will not be able to speak with the CA about your case until the morning of trial.
Let’s assume that you declined the Commonwealth Attorney’s plea agreement offer on your trial date, went to trial, and lost. Virginia provides that you have an automatic right to an appeal “de novo,” When you exercise your appeal, your case will move to the circuit court. When it does so, a new judge will hear your case, and the findings of the JDR court are not relevant. If desired, the circuit court also provides you the option of having your case presented before a jury.
Therefore, the right to appeal provides you an avenue of relief if the JDR case did not go well.
Hopefully, you found this article helpful. If you were charged with domestic assault, call us at 703.570.4180 for your FREE Consultation. You can also learn more about Owner James Abrenio here.