Domestic Violence: Someone is Going to Jail
This week’s topic is about domestic violence, a term with both legal and social significance. It’s a topic that carries a lot of emotional weight and anyone who works in this field, as I do, needs to respect the connotations “domestic violence” brings to the table.
This post is an overview of the domestic violence law in Washington with an eye towards people arrested for the crime because 1) it’s the people I usually work with, and 2) in my experience many people have incorrect ideas about what domestic violence (“DV”) actually means from a legal perspective.
What does “domestic violence” mean in Washington?
In Washington people are not charged with “domestic violence.” Rather, “domestic violence” is a tag or modifier to another charge. A person would be charged with “Domestic Violence: Assault” or “Domestic Violence: Trespassing” or “Domestic Violence: Property Destruction.” I have seen all of these.
Colloquially most people think of domestic violence as a crime of violence but it’s really about the relationship between alleged victim and defendant.
The “domestic” part of “domestic violence” is fairly broad. In Washington DV encompasses married and dating people of any gender, people who have a child together even if they never dated, current and former roommates, and people related by blood or marriage. Sometimes a person is surprised when they get in a tussle with their roommate and are charged with domestic violence assault, but that’s the law in Washington.
Being charged with a crime with a DV tag creates some interesting consequences from a legal perspective.
First of all, domestic violence by itself does not raise the penalties associated with the underlying crime. The maximum sentence for an Assault 4 is 364 days and a $5,000 fine, and if it’s DV Assault 4, that sentence remains the same.
However there are collateral consequences. Normally the length of probation after a conviction is two years, but if it’s a DV conviction, the maximum possible becomes five years of court supervision. In addition DV convictions of violence will prohibit the defendant from owning a firearm, can impact sentencing in future cases, and the ability to vacate convictions. And, the waiting period to vacate a DV-based charge goes from three years after the case is closed to five years. So ultimately while a DV-tagged charge does not mean extra jail time, it can affect someone in a lot of other ways.
How does someone get charged with a domestic violence crime?
Not every criminal charge arises because a police officer arrests someone. Mortgage fraud, for example, gets charged after investigation from a bank, tax officials, etc. But for domestic violence cases, police are almost always involved.
Here is how these cases usually go: People in the appropriate relationship get into some kind of disagreement. And I don’t mean to make light of what those disagreements can be, sometimes it’s a couple arguing about dirty dishes all the way up to a husband trying to murder his wife. But the point is, at some stage an event occurs that prompts someone to call the authorities
That person then calls 911. 911 operators are well-trained on handling domestic violence calls, gathering information about identity of the people, existence of firearms, past incidents, current drinking and drug use, and so on. And then police will be dispatched to the scene.
Here’s where it gets surprising for people: the police are going to arrest someone. Someone is going to jail that night. It is mandatory.
Many cases I’ve seen involved a person calling the police to report some property destroyed, or just to get someone else in the house so everyone cools off. Many of these calls involve people who are surprised and dismayed that their partner is actually going to jail. However if the police are called and believe they have probable cause to believe a crime involving domestic violence took place, and this standard is incredibly low, they have no discretion. They will arrest someone.
But it gets worse. By law a person arrested for a domestic violence charge will not get out of jail until they’ve been seen by a judge. In almost any other capacity a person will be allowed to post some bail until their court date. For DV cases, the person will stay in jail until a judge sees the persson. If someone is arrested on a Saturday or around a holiday, this can mean 48-72 hours in jail with no possibility to get out. And the reason a judge needs to directly see the person is because they need to place conditions of release on the person? What are conditions of release? Well for DV cases, there may be bail or an abstain condition. Regardless of whatever else there will almost always be a
Almost universally, a judge at the beginning of a DV case will place a no-contact order on the defendant, such they cannot be within 500 feet of the complainant or their residence. If the defendant and the alleged victim live together, as many of these cases involve, the defendant is now required to find a new place to live while the order is in effect. I talk more about the no-contact order process here.
Why is it ordered? Well it’s true that violence among people with an intimate relationship can be insidious and often unreported. On the other hand, many times the court-deemed victim will come in and say there’s no danger, the victim himself/herself actually caused the disturbance, and such an order would be highly expensive, disruptive, tough on the children, etc.
The courts, in an abundance of caution (concerns about the cycle of violence) and maybe to avoid bad publicity if something goes really badly, will issue the order anyway. Now some people would say if they are not a victim no order should be issued; and if they are a victim their determination on their safety is a way to reclaim their power after being victimized once, instead of being infantilized by a court who feels they know a complicated relationship better than the people themselves…but who knows? While I have rarely seen cases where no contact orders were not issued the vast, vast majority of times they will be created.
To sum up, when the police are called for a DV case, they are going to arrest someone. And that person will be in jail for a while. And before their release, they will be ordered to not have any contact with the other person, and maybe need to find somewhere else to live too. And then, of course, they have to deal with actual criminal charges, with potential collateral consequences if there is a conviction.
DV cases are no joke. But I do have some advice.
The mandatory arrest rule only exists for six hours after the report is made. If you are the alleged assailant and you don’t want to spend some time in jail, a good idea would be to leave the area so as not to be placed in a jail cell that evening. This doesn’t mean you won’t get charged with a crime down the road, but far better to get a summons in the mail then be brought in front of a judge in chains.
If the other person is calling 911 it is a very bad idea to try to stop them in any way. Doing so implicates at least three different crimes (this one, this one, and especially this one). Leaving is ok. Trying to change what someone else is doing? Not ok.
If the police do come and make contact with you, you’re not going to be allowed to leave, and yes you are going to jail. But you can do something to help the pending criminal charges and that is not talking to the police. Remember how you’re going to jail no matter what? At this point it’s about damage control and helping your future criminal defense attorney get a good result with the case. You will have a chance to tell your side of the story. In the heat of the moment, to the police? That is not the time.
Domestic violence is complicated, with a lot of potential consequences. If you or someone you know is involved in a domestic violence case, have them give me a call today.