CRIMINAL ASSAULT & BATTERY: (Batería de Asalto)
What does it mean if you are criminally charged with assault and battery?
Well, in the Commonwealth of Virginia, the legislators have passed a statute which defines punishment for an Assault & Battery charge and this information can be found under Va. Code Ann. § 18.2-57. So if you or someone you know has been charged – you can look to the statute to see the possible consequence for a conviction. You can also read about certain fact patterns which will result in enhanced punishments if found guilty.
What you may not learn by reviewing the statute is that the prosecution general needs to prove either an assault or battery. The statute is disjunctive. There is no requirement to prove both.
So, one may ask what is Criminal “Assault”? (Asalto)
Current Virginia law says that an assault may be an “attempt or offer with force and violence to do some bodily hurt to another”. It is not required that there actually be any physical touching. Yet there does need to be some type of overt act to demonstrate the furtherance of a threat. For example, if you are sitting at a café at a restaurant, and you see a gang of thugs approach, and one of the thugs kneels down, forms his or her hand as a gun, points it toward you and says “bang”, this may be considered to rise to the level of criminal assault. Another example may be if a party approaches another with his or her fist rolled into a tight fist and puts it in the others face while making a verbal threat, this would also most likely amount to the criminal offense of assault. Assault is considered to be a specific intent crime on behalf of the perpetrator. So the victim does not actually have to have knowledge of crime nor does the victim have to experience fear. What passes in the mind of the perpetrator is one important factor in determining guilt or innocence.
What is Criminal “Battery”? (Batería)
A battery is when a person willfully touches another in an angry, insulting, rude, angry, or vengeful manner while there is no legal excuse or justification. While committing a battery – it is not required that the perpetrator desires to commit harm. Case law says the act need only been done with “the spirit or rudeness or insult”. For instance, imagine that your friend is carrying a cell phone in her hand and the two of you are in a verbal argument…and you decide to grab the phone from her hand – and subsequently the police are called - there is a chance you can be charged and found guilty of assault and battery. On the other hand, if we change the scenario – let’s assume the two of you are dating, and the two of you are arguing in a sense of play and you take the phone from her and she consents…if believed, this should not amount to an unlawful act. Consensual touching is not unlawful when one does not exceed the scope of consent given.
Assault and Battery Cases
Criminal Assault and Battery Cases are frequently heard by the Courts. A simple first offense and/or second offense are normally heard and resolved at the General District Court level. Exceptions are when (1) there is an appeal from General District Court to Circuit Court or (2) if the Commonwealth directly Indicts an individual at the Circuit Court level.
Appeal: If a defendant is unhappy with the misdemeanor findings of the General District Court – he or she may appeal to the Circuit Court (The Court of Record) and take a second bite at the apple and have the case heard de novo (from scratch). A jury is also available. But, it is important to note that there is a limited amount of time to appeal and one does not file an appeal in a timely manner – the right will be forever lost.
Direct Indictment: There are instances where the Commonwealth Prosecutor decides to begin cases at the Circuit Court although normally handled at the lower Courts. Statutory power must exist. Reasons may include: dismissals at the lower court, multi-jurisdictional issues, and new charges added to those addressed at the lower Courts.
Assault and Battery cases may also sound in Tort Law and be addressed in the Civil Courts.
The elements of the case may be similar – although there does exist a difference between
Criminal and Civil Assault. Some of the differences include 1) We all know we may go to jail or prison if we get convicted of a crime. 2) In criminal court, we may have to pay court fines, court costs, and restitution. 3) Criminal records are more apt to prevent us from obtaining financial aid for school, terminate scholarships, and may be questioned on job applications.
If a conviction for a felony – there are additional burdens placed upon the party. As to Civil cases – There are of course attorney fees, paying for experts, transcriptions, depositions, and other items. The complainant will either win or lose – the party pursuing the claim is looking more for monetary compensation – to compensate for pain and suffering and perhaps punative also.
Domestic Violence (Violencia doméstica)
- 18.2-57.2. Assault and battery against a family or household member
Any person who commits an assault and battery against a family or household member is guilty of a Class 1 misdemeanor.
Most people have heard the term “Domestic Violence”. Sometimes the term is used interchangeably with Assault & Battery. The Domestic Violence statute is found in Va. Code Ann. § 18.2-57.2. Domestic violence is an assault and battery although it only concerns those cases which involve a family or household member(s). Then the question becomes what is a “family or household member”. The definition may be found under Va. Code Ann. § 16.1-288. Here it states : “A family member or household member includes (1) a spouse, ex-spouse, parents, stepparents, children, stepchildren, brothers, sisters, half-brothers and sisters, grandparents and grandchildren – irrespective of the living arrangements (living within or outside the home), (2) father and mother-in-laws, son and daughters-in-law, brothers and sisters-in-law who reside in the same home with the person at the time of the event, persons whether or not married who share a child in common irrespective if the two ever lived together, co-habitants, or (3) a party who cohabits or has done so within the past (12) twelve months and their children then residing in the home”.
Now, although the statute appears to be clear in defining “family” – there needs to be more clarity as to the meaning of who are “household members”– which of course leads us to the definition of the word “cohabit” which helps determine who are household members. Which people are cohabiting in the home or have done so in the last (12) months to qualify them as household members is important to the classification of the case and deciding which court has subject matter jurisdiction over the case. Some clarity may be found in the case “ Rickman v. Commonwealth, 33 Va. App. 550. 535 S.E.2d 187 (2000). In this case, the Court did not preclude the idea that when “one is working out of town and periodically staying elsewhere in town that he or she could fall under the domestic violence statute under Va. Code Ann. § 18.2-57.2. A man may have a domiciliary with another woman and yet have more residences to reside at. The fact that he may sleep at several residences should not permit him to avoid a domestic violence charge since he moves from place to place. Family members and household members deserve more protection. The Legislators indicate they want more protection given to family and household members over simple assault and battery cases against strangers.
So what is cohabit?
Cohabitation essentially is the sharing of familial or financial responsibilities. Along with consortium. Other factors looked at to determine cohabitation are food, shelter, clothing, utilities, and whether assets are commingled. The court also looks at whether there is fidelity, mutual respect, comfort and affection, friendship, conjugal acts, society and cooperation.
Other considered factors are added "include the length and continuity of the relationship," as well its "permanency. In Harris v. Commonwealth 2002 Va. App. Lexis 622 (Court of Appeals Oct. 15, 2002, the Court determined after much deliberation that when the victim and perpetrator were in a long-term relationship and they lived in a motel together “ Domestic Violence” was the proper charge versus simple assault and battery. Judges are given discretion how much weight to give to factors to determine if the victim and accused did or did not cohabit. If the court feels a family member or household member is involved in an assault and battery and/or cohabitation, the Juvenile and Domestic Relations Court will maintain subject matter jurisdiction. The road ahead may be more troublesome for some.
One may ask whether there is a big difference between Simple Assault cases and “Domestic Violence” and, and if so, what is the importance.
Simple “Assault and Battery” charges differ than a “Domestic Violence” First of all, Domestic Violence cases originate at the Juvenile and Domestic Relations District Court. When involved in this Court – there tends to be more privacy. The party’s names are not listed on the VIRGINIA JUDICIAL SYSTEM WEBSITE as in a simple Assault & Battery charges which are first heard at the General District Court. This is because the Courts want to protect family and a juvenile’s privacy if feasible. Also, there are more limitations on who may enter the courtroom during court proceedings. Privacy issues are also demonstrated by the clerks more stringent policy standards as to which of the public are permitted to view court documents. Also, final dispositions may differ between the two and the consequences of a Domestic Violence conviction may result in much more harsh penalties for those who are here legally or illegally and have not yet attained citizenship in this country. A domestic violence conviction is probably the worst misdemeanor conviction one could face when attempting to gain citizenships. ICE has been known to perform sweeps in the jails and deport persons convicted of this crime. Even if you are a legal resident, you must beware. You need an attorney like Sheryl Shane, Esq. who will discuss with you how to make the best choices under your circumstances. Even if you just pushed your wife or husband away when they were yelling or perhaps you spanked your child too hard - An experienced attorney is a necessity. Know – that if you are offered a program for first offenders – Immigration may still consider this a conviction although the state court does not. If you want a high security job – investigators do seek out records from the court one may believe to be private. Attorney Sheryl Shane will be there to guide you through the process. She has years of experience and a multitude of cases under her belt. Be assured she will walk you through the process step by step.
Additional Notes regarding Domestic Violence conviction under is Va. Code Ann. § 18.2-57.2
- If you receive bail/bond or are released upon your own recognizance after Assault and Battery or Domestic Violence charge – be certain to learn the restrictions placed upon you prior to your next court date. When you are told – no contact – than do not answer the phone when the alleged victim calls. If you are in jail and forget everyone’s phone number, do not call the victim or have anyone call on your behalf. If you are told to get rid of your firearms – then do so. You do not want your bond revoked nor do you want a new charge.
- If convicted of a domestic violence in The Commonwealth of Virginia – be aware that if you intend to purchase a firearm in the future– you may be required to state in writing whether or not you have been convicted of this crime. And if you make a material false statement on the form while applying for a gun – felony charges may be brought.
PROTECTIVE ORDERS (Ordenes de Protecteccion)
Emergency Protective Orders
Emergency Protective Orders are available to protect alleged victims in the Commonwealth of Virginia. Either a Judge or Magistrate is permitted to issue and ex-parte emergency protective order. Ex-parte means that it can be done without giving notice to the other side. For it to be available to the party claiming to be the victim – it is necessary to show that a protective order is needed to protect the safety and or health of the alleged victim.
So, for example Maria Lopez is being beaten by her husband John Smith and they share home, Maria must show harm and that she needs protection. If the order is granted – she may obtain order prohibiting further violence and or perhaps any contact, physical possession of the home, along with other remedies. In addition, Maria is not the only party who could seek this type of protective order. There are instances where law enforcement may ask for emergency protective orders. Law enforcement ie police, deputies, and troopers able to fill out pre-printed forms and provide all the required information. Once the order is issued - and forwarded to The Department of State Police – it will be entered into the Virginia Criminal Information Network. Now - since Emergency Protectives Orders are permitted ex-parte – the duration of time is short lived. Further actions should be taken if the alleged victim feels an order of protection should be extended.
Special Notes:
- Law Enforcement may file petitions to protect minors from issues regarding their health and safety.
- Minors who are not emancipated must file for a protective order through “a next friend”.
Preliminary Protective Orders
If a Petitioner can show within a reasonable time, he or she was subjected to family abuse, a preliminary protective may be granted. The order is issued to protect the health and safety of the potential victim(s). Sufficient evidence may be when there is immediate and present danger of family abuse or that probable cause that family abuse has recently occurred. More protections are affording to
the Petitioners in this case. If the case involves a spouse, the Petitioner may be awarded exclusive use of a cellular phone, gain temporary possession of a vehicle, suitable alternative housing, and the Respondent (the accused) may be required to pay bills to protect the potential victim.
If there is a full hearing, and the Judge believe the case against the Respondent was successful – a protective order may be issued for a period of up two years.
Extensions may be requested and issued. Under these circumstances, the Judge may also order participation in treatment, counselling, and other types of programs.
Preliminary Protective Order may also be issue against non-family members or persons who are not household members. The laws are similar but not exactly the same.
Violations of Protective Orders
Although Protective Orders are not per se criminal in nature, the issuance of one against your person may harm your future and reputation. You need an experienced attorney like Sheryl Shane to pursue and or to defend your interests.
On the other hand, a Violation of a protective order is a criminal offense.
Under Virginia Code Ann. statute §18.2-60.4 a violation for a first offense is a class 1 misdemeanor. Mandatory jail time is imposed if a second offense is committed within a five-year period and an act or threat of violence was used. A third offense within a (20) twenty-year period based on prior act or threat of violence may cost you a Class 6 felony with a minimum of (6) months incarceration.
Possession of a firearm while a protective order is in place is an aggravating factor and may result in harsher sentence.
A new assault and battery while a protective order is in place or entering the protected party’s home is considered a more serious offense with tougher penalties.
When there are Criminal charges in place and your life and reputation will be turned upside down – call a our experienced Fairfax criminal lawyer – Call for a free Consultation Today!
