Assault and Battery on a Family or Household Member is considered a form of domestic violence in Virginia. The Fairfax County Juvenile and Domestic Relations Court has so many of these cases every year that Fairfax County has a special grant for the employment of domestic violence prosecutors and these cases are all that they prosecute (and they are busy).
In these cases, many people call the police because they want the police to mediate the dispute. Other times the call is designed for the police to “teach their spouse or significant other a lesson.” However, the parties are generally not aware that there is a general rule with domestic violence cases that the police need to arrest someone and have issued a temporary emergency 72-hour protective order forcing the two apart. As a result, one party may be charged with Assault and Battery on a Family or Household Member, a Class 1 misdemeanor, when that was not the intent of the other person.
We recommend you give us a call at 703-273-4100 for a free consultation or use the contact form below. In these cases, it is important to have an attorney because even if the “victim” does not wish to proceed does not mean the prosecutor will simply drop the case. We have had many cases where the victim will ask the prosecutor to drop the charges and, yet, the prosecutor still wishes to proceed with the case. They can do this because the victim is not a party but merely a witness to the Commonwealth. Thus, a trial puts an individual without a lawyer at a major disadvantage in their case.
Defining an Assault and Battery of a Family or Household Member
Assault and Battery of a Family or Household Member is codified under Virginia Code §18.2-57.2. The statute criminalizes the conduct as a Class 1 Misdemeanor. Case law has defined an Assault and Battery as, essentially, a harmful or offensive touching of another person or an unsuccessful attempt to commit the offense. What separates this charge from simple assault and battery is that it is between a "family or household member" and these cases are handled a bit differently.
Family or Household member is codified under §16.1-228 of the Virginia Code. Family or Household member includes:
(i) Spouse; (ii) Former Spouse; (iii) Parents, Stepparents, Children, Stepchildren, Brothers, Sisters, Half-Brothers, Half-Sisters, Grandparents,and Grandchildren; (iv) Mother-in-Law, Father-in-Law, Sons-in-Law, Daughters-in-Law, Brothers-in-Law and Sisters-in-Law who reside in the same house as the person; (v) Any individual who has a child in common with the person; (vi) any individual who cohabits or, within the previous 12 months, cohabited with the individual, and any children of either of them then residing in the same home as the person.
Sometimes, if it's unclear whether or not the parties fall under "family or household member," it can be challenged. However, in most cases, we advise our clients to leave the matter in the Fairfax County Juvenile and Domestic Relations Court because there are more remedies available in that Court than in General District Court.
The Assault Charge Process:
First, in these cases, an emergency protective order is issued pursuant to §16.1-253.4 (in order to separate the parties). The protective order is for 72 hours. Most protective orders will even ban the alleged perpetrator from the home leaving them to have to stay with other family or friends. In addition, it is important to note that it will likely bar phone calls and text messages between the parties. Sometimes the protective order will simply ban assaultive contact between the parties.
Next, in Fairfax County, an advisement hearing will be set. This is not a trial date. Rather, it is a court date where a clerk will set the trial date. Neither the arresting police officer nor the alleged victim will be present during this hearing. If an attorney is hired enough in advance this court date can be waived.
Then, barring any pretrial motions, the final court date in this process is the trial date. This is where the case is decided before a Judge and all of the parties are present (most of the time). If you have a lawyer, you will not need to speak to the Judge (unless you are testifying) and won't have to talk to the police officer or the prosecutor. We have our clients prepared for the trial date and will either have a trial or negotiate a plea depending on the facts of the case. Many cases are ripe for trial since there are usually no other witnesses than the parties themselves. In other cases, we may want to exercise one of the statutory remedies.
Dismissal for Domestic Assault Cases
Persons charged with first offense of assault and battery against a family or household member may be placed on local community based probation under §18.2-57.3 of the Virginia Code. When a person is charged with a violation of §18.2-57.2 (domestic assault), the court may defer the proceedings against the person, without a finding of guilt, and place them on probation under the terms of this section. Upon fulfillment of the terms and conditions specified in the court order, the court shall discharge the person and dismiss the proceedings against him. Generally, the court will continue the case for two years and refer the offending individual to an anger management program and, sometimes, parenting classes or an alcohol or drug program. Provided the program is completed and no new criminal convictions were incurred during that time period, the court will dismiss the charge.
Because this statutory remedy is readily available, we will go to trial on most of our Assault and Battery against Family or Household member cases. The reason we do this is because, even if the Judge finds enough evidence to sustain a guilty finding, most will allow the person the benefits under this statute. In some cases, such as if it is a bad assault, we may wish to agree to this outcome if it can be negotiated.
In cases where a trial is warranted, we will explore other defenses which may include self-defense, mutual combat (meaning both parties have consented to the physical altercation), or that it never happened in the manner the police believe it did. We have had many acquittals where the both the alleged perpetrator claim different stories and, in the end, the Judge dismissed the charge since they cannot tell what happened during the altercation (i.e. evidence is in a state of equipoise).
Your Free Consultation
We would be happy to talk to you about your case. Sometimes people have resolved their differences by the time they call us. In other cases, the relationship in a state of disrepair and there is bad blood. In either case, we strongly recommend you contact us to discuss your options. Relationships between husbands, wives, mothers, fathers, brothers, and sisters are very potent and so can be disagreements. But a major argument should not necessarily result in a criminal conviction.