Virginia Domestic Assault Law 18.2-57.2
Assault and battery against a family or household member
The Virginia domestic assault charge is called assault and battery against a family or household member. Assault and battery against a family or household member is a class 1 misdemeanor crime punishable by up to one year in jail under Va Law 18.2-57.2.
This offense is generally charged in Virginia when a person hurts, injures or pushes a family member. Individuals charged for this offense or victimized may be a husband, wife, mother, father, cousin, sister, brother, parent, grandparent child, girlfriend, boyfriend, roommate, etc. Battery conduct examples include: pushing, hitting, punching, slapping, beating, spanking, striking, smacking, throwing, etc.
Threats to commit an assault can also be charged as an assault crime if the assailing individual puts their victim in reasonable fear of imminent harm – which means the accused must have perceivably immediate ability to carry out the threat. So, threats over the phone would not count as assault.
Arrest for domestic assault under Va Law 18.2-57.2
Virginia police officers have to treat domestic assault cases differently than regular assault cases. Under Virginia law, police officers must arrest the predominant physical aggressor when they have sufficient probable cause that a domestic assault took place. Unlike simple assault cases, where the victim files charges against the aggressor, in domestic assault cases it is the police that bring charges against the predominant physical aggressor.
An officer having probable cause to believe that a violation of Va Law § 18.2-57.2 Assault and battery against a family or household member or Va Law § 16.1-253.2 Violation of protective orders and certain court orders which have previously been served on the respondent) has occurred, “shall arrest and take into custody” the person the officer has probable cause to believe, based on the totality of the circumstances, was the predominant physical aggressor, unless there are special circumstances which would dictate a course of action other than arrest. In the event that the suspect has left the scene prior to the arrival of the officer, and there is probable cause that a violation of Va law § 18.2-57.2 has occurred, the officer shall respond to the magistrate to obtain the arrest warrant unless there are special circumstances which would dictate a course of action other than obtaining the warrant. In situations where the officer responds to the magistrate to obtain the warrant, the officer shall appear as the complainant.
Can a victim drop the charges or stop prosecution?
In a Virginia assault or battery case, where the complaining witness / victim is a family or household members such as a wife or a girlfriend, the victim commonly calls us and says that she “changed her mind about prosecution” and wishes to drop the charges. Unfortunately, this is not so simple.
The victim did not bring the charges, the Commonwealth of Virginia brought those charges. The prosecutor, hence, controls the domestic assault / battery charges and the case against the husband or boyfriend; the victim does not control the domestic assault case. The victim is nothing more than a witness in the prosecutor’s case against the accused. (Same goes for siblings or any other familial relation. The Commonwealth controls the case, not the family.) Victims are provided “victim’s advocates” to deal with the stresses of court, but these individuals are not lawyers and cannot advise victims of their rights and options.
For these reasons, it is recommended that victims consult with their own independent private attorneys who can advise them of their rights since the prosecuting attorney’s interests conflict with the victim’s interests, same as for the defense attorney’s interests.
Definitions for Virginia Domestic Assault Cases
Family Abuse: Any act involving violence, force, or threat that results in bodily injury or places one in reasonable apprehension of death, sexual assault, or bodily injury and that is committed by a person against such person’s family or household member. Such act includes, but is not limited to, any forceful detention, stalking, criminal sexual assault, or any criminal offense that results in bodily injury or places one in reasonable apprehension of death, sexual assault, or bodily injury.
Family or Household Member:
(1) the person’s spouse, whether or not he or she resides in the same home with the person,
(2) the person’s former spouse, whether or not he or she resides in the same home with the person,
(3) the person’s parents, stepparents, children, stepchildren, brothers, sisters, half-brothers, half-sisters, grandparents, and grandchildren, regardless of whether such persons reside in the same home with the person,
(4) the person’s mother-in-law, father-in-law, sons-in-law, daughters-in-law, brothers-in-law and sisters-in-law who reside in the same home with the person,
(5) any individual who has a child in common with the person, whether or not the person and that individual have been married or have resided together at any time, or
(6) any individual who cohabits or who, within the previous twelve months, cohabited with the person, and any children of either of them residing in the same home with the person.
Predominant Physical Aggressor: The predominant physical aggressor is not necessarily the first disputant to engage in assaultive behavior. Officers shall identify the predominant physical aggressor based on the totality of the circumstances.
The standards for determining who is the predominant physical aggressor for violations of Va. Code Ann. § 18.2-57.2:
a. Who was the first aggressor;
b. The protection of the health and safety of family and household
c. Prior complaints of family abuse by the allegedly abusing person
involving the family or household members;
d. The relative severity of the injuries inflicted on persons involved in the
e. Whether any injuries were inflicted in self-defense;
f. Witness statements; and
g. Other observations.
Protective Order: A court order given on behalf of a family or household member, or non-family/non-household member per Va Law § 19.2- 152.8, that prohibits the abuser from subsequent acts of violence and may order the abuser to refrain from further contact, vacate the residence, relinquish custody of a vehicle, provide temporary child support, plus other measures pursuant to Va. Code Ann. § 16.1-279.1.
Virginia Domestic Assault Laws:
§ 18.2-57.2. Assault and battery against a family or household member; penalty.
A. Any person who commits an assault and battery against a family or household member is guilty of a Class 1 misdemeanor.
B. Upon a conviction for assault and battery against a family or household member, where it is alleged in the warrant, petition, information, or indictment on which a person is convicted, that such person has been previously convicted of two offenses against a family or household member of (i) assault and battery against a family or household member in violation of this section, (ii) malicious wounding or unlawful wounding in violation of § 18.2-51, (iii) aggravated malicious wounding in violation of § 18.2-51.2, (iv) malicious bodily injury by means of a substance in violation of § 18.2-52, (v) strangulation in violation of § 18.2-51.6, or (vi) an offense under the law of any other jurisdiction which has the same elements of any of the above offenses, in any combination, all of which occurred within a period of 20 years, and each of which occurred on a different date, such person is guilty of a Class 6 felony.
C. Whenever a warrant for a violation of this section is issued, the magistrate shall issue an emergency protective order as authorized by § 16.1-253.4, except if the defendant is a minor, an emergency protective order shall not be required.
D. The definition of “family or household member” in § 16.1-228 applies to this section.
§ 18.2-57.4. Reporting findings of assault and battery to military family advocacy representatives.
If any active duty member of the United States Armed Forces is found guilty of a violation of § 18.2-57.2 or § 18.2-57.3, the court shall report the conviction to family advocacy representatives of the United States Armed Forces.
Another example of a common domestic assault charge is strangulation, which is a Class 6 felony offense. It is defined in the code as follows:
§ 18.2-51.6 Strangulation of another; penalty.
Any person who, without consent, impedes the blood circulation or respiration of another person by knowingly, intentionally, and unlawfully applying pressure to the neck of such person resulting in the wounding or bodily injury of such person is guilty of strangulation, a Class 6 felony.
Read more about Virginia Assault and Battery Law here: Virginia Assault and Battery Laws and Penalties – Defense Attorney’s Explanation of Misdemeanor Charges Under VA Code 18.2-57
The Virginia courts define battery as a simple touching of another, whether willfully or in anger; this includes touching done to be rudeness or to insult. This includes being touched by objects set in motion by the defendant, such as whips and even a defendant’s dogs! The difference from assault is that basic assault does not require actual touching. Accidental, non-reckless touching is not considered a battery, and an “accident” is a defense to this charge. Additional defenses include consent to the touching (such as agreeing to participate in a boxing match) and self-defense. A victim’s words, no matter how insulting, will not excuse a battery without him touching you first. However, the victim’s conduct, including provocation and insulting words, is admissible to mitigate the punishment
ASSAULT ON A CHILD AS DOMESTIC VIOLENCE
The Virginia Court of Appeals has described this issue in this way: while parents may administer such reasonable and timely punishment as may be necessary to correct faults in a growing child, this right cannot be used as a cloak for the exercise of “uncontrolled passion.” A parent who becomes uncontrolled during the administration of corporal punishment may be criminally liable for assault and battery if the mother or father inflicts corporal punishment that exceeds the bounds of “due moderation.”
The court looks at whether punishment had been moderate or excessive by analyzing the following factors: the circumstances surrounding the punishment, age, size and conduct of the child, the nature of the misconduct, the nature of the instrument used for punishment, and the kind of marks or wounds inflicted on the body of the child. In the most famous ruling by the Virginia Supreme Court, the court simply stated that: “the undisputed evidence as to the wounds and bruises on the body of this child showed that he had been cruelly and brutally beaten.”
Examples where criminal fault for excessive parental discipline has been found by a Virginia court:
– beating of five-year-old child caused badly bruised buttocks with blood seepage and purple marks and welts on both legs such that the outer layer of skin stuck to the child’s underpants
– beating of seven year-old child resulted in open and bleeding bruises across her entire body and a large bleeding gash on her face
– child struck in head with telephone causing bleeding
– ten-year-old child smacked on face once or twice with a closed hand, causing a laceration in the corner of the boy’s right eye, another upon his nose area, and a scrape on his right shin
– three-year-old child beat fifteen times with belt causing extensive bruising that required hospitalization
– child shackled to floor of bus and beaten on the head and body, causing death
First Offense Assault on Family or Household Member
§ 18.2-57.3. Persons charged with first offense of assault and battery against a family or household member may be placed on local community-based probation; conditions; education and treatment programs; costs and fees; violations; discharge.
A. When a person is charged with a simple assault in violation of subsection A of § 18.2-57 where the victim was a family or household member of the person or a violation of § 18.2-57.2, the court may defer the proceedings against such person, without a finding of guilt, and place him on probation under the terms of this section.
B. For a person to be eligible for such deferral, the court shall find that (i) the person was an adult at the time of the commission of the offense, (ii) the person has not previously been convicted of any offense under this article or under any statute of the United States or of any state or any ordinance of any local government relating to an assault or assault and battery against a family or household member, (iii) the person has not previously had a proceeding against him for violation of such an offense dismissed as provided in this section, (iv) the person pleads guilty to, or enters a plea of not guilty or nolo contendere and the court finds the evidence is sufficient to find the person guilty of, simple assault in violation of subsection A of § 18.2-57 where the victim was a family or household member of the person or a violation of § 18.2-57.2, and (v) the person consents to such deferral.
C. The court shall (i) where a local community-based probation services agency established pursuant to Article 9 (§ 9.1-173 et seq.) of Chapter 1 of Title 9.1 is available, order that the eligible person be placed with such agency and require, as a condition of local community-based probation, the person to successfully complete all treatment, education programs or services, or any combination thereof indicated by an assessment or evaluation obtained by the local community-based probation services agency if such assessment, treatment or education services are available; or (ii) require successful completion of treatment, education programs or services, or any combination thereof, such as, in the opinion of the court, may be best suited to the needs of the person.
D. The court shall require the person entering such education or treatment program or services under the provisions of this section to pay all or part of the costs of the program or services, including the costs of any assessment, evaluation, testing, education and treatment, based upon the person’s ability to pay. Such programs or services shall offer a sliding-scale fee structure or other mechanism to assist participants who are unable to pay the full costs of the required programs or services.
The court shall order the person to be of good behavior for a total period of not less than two years following the deferral of proceedings, including the period of supervised probation, if available.
The court shall, unless done at arrest, order the person to report to the original arresting law-enforcement agency to submit to fingerprinting.
E. Upon fulfillment of the terms and conditions specified in the court order, the court shall discharge the person and dismiss the proceedings against him. Discharge and dismissal under this section shall be without adjudication of guilt and is a conviction only for the purposes of applying this section in subsequent proceedings. No charges dismissed pursuant to this section shall be eligible for expungement under § 19.2-392.2.
F. Upon violation of a term or condition of supervised probation or of the period of good behavior, the court may enter an adjudication of guilt and proceed as otherwise provided by law.
G. Notwithstanding any other provision of this section, whenever a court places a person on probation upon terms and conditions pursuant to this section, such action shall be treated as a conviction for purposes of Article 6.1 (§ 18.2-307.1 et seq.) of Chapter 7.