Why Do I Have to Go to Court Twice for Domestic Violence?
Virginia’s legal system has two layers of protection for domestic abuse victims because serious injuries are so frequent. 75 percent of these victims sustained a serious injury. That injury could be visible, like a broken bone, or invisible, like Post Traumatic Stress Disorder or another brain injury.
On the flip side, there are no reliable statistics that reflect how many alleged victims fabricate abuse claims or exaggerate their injuries, usually to cause trouble for the defendant or get a leg up in a civil proceeding. But we know alleged victims have made false accusations in the past
and these incidents will happen in the future.
A Leesburg domestic violence lawyer focuses on reducing, or eliminating, the harsh consequences of a criminal domestic battery conviction and/or a civil domestic violence protective order. Well-prepared and experienced attorneys are usually able to resolve these matters out of court, and on defendant-friendly terms.
Criminal Domestic Battery
Basically, criminal domestic battery is intentionally injuring a dating partner or person related by blood or marriage. Some other categories, like elder caregiver or roommate, might apply as well. The vast majority of these cases involve spousal abuse.
In older days, the alleged victim could invoke his/her privilege not to testify against the defendant, forcing the prosecutor to drop the case. The legislature changed this law a number of years ago. Now, an alleged victim is a material witness. If necessary, the state can subpoena witnesses and force them to testify against their will.
Prosecutors can compel testimony, but this testimony isn’t always credible. Frequently, both parties were drinking at the time. Alcohol clouds memory. Additionally, if the alleged victim and defendant are parties in a pending family law case, the alleged victim’s motive to testify is somewhat suspect. Finally, the less severe the injury, the harder it is to prove intentional conduct. Sometimes people really do fall down the stairs or run into doors. In fact, these incidents are much more common than assaults.
Self-defense could apply as well. Defendants don’t give up their right to defend themselves, even if the aggressor is a family member.
If such proof issues exist, a Leesburg criminal defense lawyer is often able to reduce the charges by one level. Assume officers responded to a dispute between Sam and Leslie. They determined that Sam was the aggressor and arrested him. But Leslie told investigators one story and changed parts of her story during a pretrial hearing.
In that situation, prosecutors might reduce the domestic battery charge to ABC (assault by contact), a minor infraction that usually doesn’t go on the defendant’s permanent record.
Civil Protective Orders
Usually, officers responding to domestic disturbance calls must arrest one person and must inform the other person of his/her right to file a civil protective order.
A judge could issue an ex parte order based solely on the alleged victim’s affidavit. After a full hearing, the judge could extend the protective order and add additional provisions, such as a kick-out order excluding a defendant from a shared residence.
The same evidence issues discussed above apply in civil protective order proceedings. However, the burden of proof in civil court (a preponderance of the evidence, or more likely than not) is much lower than the burden of proof in criminal court (beyond any reasonable doubt).
Frequently, the two sides compromise and the judge issues a consent decree. This court order has the same provisions and same effects as a protective order. But it doesn’t have the same collateral effects.
Count on a Detail-Oriented Loudoun County Lawyer
There’s a big difference between an arrest and a conviction in criminal law. For a free consultation with an experienced criminal defense attorney in Leesburg, contact Simms Showers, LLP, Attorneys at Law. Virtual, home, and jail visits are available.