It is certain that most people know violence is wrong. We know that laws have been written defining what constitutes violence. There are certainly different grades of violence. Punishments are imposed when a person commits a crime which is violent. What we also need to know is that sometimes people feel they have a good reason for committing violence. It is possible that we come from a culture where certain violence is permitted. You may be raised in a family where there is a negative role-model regarding discipline. In some instances, a person may be high on drugs and does not have full control of his or her faculties and commits violence. There are times, this attorney has seen cases where a family member has been forced to commit a violent act to protect oneself and the immediate family. But for whatever the reason - people need to understand that while we live in the Commonwealth of Virginia, and in this Country, we need to learn the rules and customs here. We need peace. We do not need to cause harm and chaos. Now, taking all of this into account, we next need to ask whether there is a legal justification or excuse for using violence, and if so, should a person charged with a violent crime have the case against him or her dismissed or should it be lowered to a lesser offense. We also need to entertain the notion that there are cases where people are blamed for violent acts which actually may not have occurred at all and are based on false allegations.
In all these scenarios, once a person is charged with a violent crime, the accused needs to hire a knowledgeable attorney who can navigate the laws and plot a course of action to show your innocence. Whether you fight the charge or take a deal – talk to a lawyer who will update on the law and search for ways best to defend you.
The Cases which most often appear in the Courts are:
- Assault & Battery - Va. Code Ann. § 18.2-57
- Domestic Violence - Va. Code Ann. § 18.2-57.2
- Unlawful Wounding - Va. Code Ann. § 18.2-51
- Malicious Wounding - Va. Code Ann. § 18.2-51
- Aggravated Malicious Wounding - Va. Code Ann. § 18.2-51.2
- Strangulation - Va. Code Ann. § 18.2-51.6
Assault & Battery
An assault is when a person overtly commits an act with the intent to harm another in circumstances where there is the present ability to cause harm. There must be an overt act to place the victim in fear of imminent bodily harm. The overt act need only be an attempt or offer coupled with force and violence. For instance, when a party points his finger at victim and says pow – and pretends to pull a trigger, this has been found by the Virginia Courts to constitute an assault. Here, an attempt or offer to commit harm is clear and the conduct is deemed a wanton malicious act. The conduct itself demonstrates the present ability to harm the victim.
A battery is the willful touching of another, without legal excuse or justification, done in an angry, rude, insulting, or vengeful manner. Examples of battery can range from spitting, grabbing, pushing, slapping, or throwing something at a party.
A simple Assault and Battery is Class (1) one misdemeanor. When an assault & battery is asserted to have occurred against certain classes of people, punishments are often more severe. And, if you are charged with subsequent convictions, expect more severe the penalties.
Harsher penalties for violent crimes are considered when committed against these persons:
- To persons based on race, religion, color or national origin,
- A judge, magistrate, or law enforcement officer,
- A correctional officer, nurse, supervisor and such at the jails and prisons,
- Firefighters and emergency medical providers, and
- School employees.
Often mandatory minimums periods of jail are ordered in these cases.
Domestic Violence and Assault and Battery against household Member
Cases involving an assault and battery against a family or household member begins at the Juvenile and Domestic Relations Court rather than General District Court level. Parties involved in these situations include but are not limited to a husband and wife, siblings, parent and child, two unmarried people who share a child in common, and housemates. Under Virginia Code Ann. § 18.2-57.2, an assault and battery which occurs against a family member or household member is classified as a misdemeanor (1). On a third offense, if convicted of such, within a (20) twenty-year period, the crime increases to a Felony (6). When arrested on the first or subsequent offense, the Magistrate or Judge will issue a seventy-two hour (72) protective order, except in some cases where the defendant is a minor. Protective orders are issued in order to give a cooling off period and for the protection of the public. Unfortunately, an attorney too often run into situations where the alleged perpetrator was so upset upon arrest that he or she did not digest all the rules while sitting in the jail cell. He or she then made a call from the jail attempting to telephone the victim. The accused was not afforded the opportunity to bring a phone inside the jail and does not recall friends and families phone numbers. When the jail discovers the prohibited contact, a new charge ensues. There is now a protective order violation which makes it much more difficult to obtain bond.
It is against the law to act in a manner which a person knows or reasonable should know places another in reasonable fear of sexual assault, bodily injury, or death. When a person acts on more than one occasion in a manner which he or she knows or reasonably should have known puts another person in reasonable fear of sexual assault, bodily injury, or death, the penalty is a Class (1) misdemeanor. This crime may also apply when directed to the victims’s family and household members. When the accused was given actual notice prior to the stalking that the victim does not want to be contacted or followed and the ignores, the prosecutor will have an easier time proving the crime. If the act stalking is repeated within a (5) year period the conviction is raised from a misdemeanor to a Felony Class six (6). The Court will prohibit defendant from any contact with victim(s). If the accused is convicted and sent to a penitentiary – he or she can count on the victim being notified of the release date.
Stalking is a crime where an experienced attorney will direct the client to seek mental health and to comply with other procedures prior to court whether or not guilty. This is a crime where fear is involved. It would not be unrealistic for a prosecutor to be more reluctant to give the defendant in this type of case a break if the crime is probable to occur again in the future. Some of the perpetrators in these cases if in fact guilty may have the inability to stop their behavior. An attorney does best when given the tools to the job. Treat the problem in advance and work for better outcome.
An Unlawful Wounding Conviction is a Class (6) Felony. In order to be convicted, the Prosecution must prove beyond a reasonable doubt that the aggressor stabbed, shot, cut, or wounded or (caused injury by any means) to another; and, that it was done with the intent to permanently maim, kill, disable, disfigure.
An example would be a case where perhaps a husband finds his wife in bed with another and injures the wife or lover. He is acting out of heat of passion. He did not plan the act out prior.
There was no malice aforethought. The husband lost control of his senses.
A different example could be where a brother sees a group harassing his mother and grabs a fork and stabs one of the aggressors when such force was not quite necessary.
A third scenario could be when a man and his family are being harassed and he reaches his home and grabs a shotgun and shoots it at group. Someone is hit by a bullet on the side of his arm.
These are the types of unlawful wounding cases which have been handled at the Virginia Criminal Attorney Law Firm.
A Malicious Wounding is more serious than an Unlawful Wounding. Instead of acting out of the heat of passion, the act was done with malice. If found guilty of the offense you will serve not less than (5) five nor more than (20) years. A fine up to ($100,000) dollars may be ordered against the defendant.
Aggravated Malicious Wounding
In order to be found guilty of aggravated malicious wounding, you have to show the aggressor with malice stabbed, shot, cut, or wounded or caused injury by any means and that it was with intent to permanently maim, kill, disable, disfigure. The victim was as a result severely injured and suffered significant and permanent physical impairment. Because of the high grade of culpability and harm in this crime, a guilty defendant will be sentenced between (20) years and life and possible fine up to ($100,00.00).
Malicious wounding cases are seen quite frequently when dealing with gang charges (ie. In Virginia the MS-13 gang). It is the prosecutor’s decision whether to charge as a regular malicious wounding or an aggravated malicious wounding. You may see these type of cases when machetes were used or knives and the victim is severely injured and there was a loss a limb, finger, or toe from the attack. What is interesting is that if the aggressor loses a body part or one of the co-defendants, the punishment will can be enhanced just as if the victim suffered the damage.
There are many other instances where Malicious Wounding and Aggravated Malicious Wounding charges are given. For example, a stepfather may be drunk and begin a fight with another man in the neighborhood. He returns to his home and tells his young stepson to grab a bat. The young boy does so. The older son sees this and decides to follow them a few blocks away. When he reaches the scene he sees a strange man on top of his brother, he grabs the bat on the ground and uses it to get the man off his brother. He grabs his brother and leaves.
After they are gone, the stepfather beats the victims head in with a bat until the skull is caved in. Now, if it were true – is the older son at fault. Should he be sentenced with years of prison. These are issues you must review with a trial attorney who has handled these types of cases. Perhaps the older brother grabbed the bat, perhaps he did not. The bat come from the home. He could have handled at and earlier time while playing baseball. You need to have a lawyer review the case with a fine tooth comb. Call the office of Sheryl Shane to discuss the case of your loved one who was falsely accused.
To be found guilty of strangulation, you must with knowledge and intent apply pressure to another’s neck and impede the blood circulation or breathing. The act must be done in an unlawful manner. Consent is a defense. Strangulation is a Felony and when the accused is found guilty, he or she will be sentenced to not less than (1) one year and no more than (5) years of imprisonment or less than (12) months in county jail. There must be a fine and it will be up to twenty-five hundred dollars ($2,500.00).
Strangulation is a fairly new statute. Just a few years old. Often a person charged with domestic violence can be charged with strangulation. If the victim states to the police that the defendant put his hands on her neck and shows a red spot. This is all it takes. Boom – your arrested. You need an aggressive attorney who is confident and has the ability to personally handle your case and obtain the best outcome for you. Call our Virginia Criminal Attorney for a free consultation.