FAQs – Domestic Violence
Frequently Asked Questions
Domestic Violence FAQs
Things can move very quickly after a domestic violence arrest. Unlike other types of charges, which law enforcement may take the time to thoroughly investigate before charging, the police and prosecution often make snap decisions in domestic violence cases before the truth can be sorted out. If you are reading this you may already be subject to a no-contact order prohibiting you from residing in your own home and having regular contact with your family.
It is important that you contact counsel immediately. Retaining counsel early is essential to getting your best outcome when it comes to setting bail and bail conditions which are likely to be in place for the duration of your case. A domestic violence complainant may also initiate a separate protection order proceeding against you in civil court. It is essential to get good advice on how to handle these concurrent proceedings. A lawyer will be able to advise you whether it is to your advantage to appear and challenge such an order at the first opportunity or preserve your right against self-incrimination and continue the protection order hearing until the resolution of the criminal case.
Absolutely. Often times an accuser will continue to contact the accused after the incident in question and well into the pendency of a case. These contacts can provide helpful context to the accusation and in many cases can undermine the credibility of the accuser. If your accuser is applying for a no-contact order and simultaneously contacting you, or claims to have been placed in fear by assaultive or threatening behavior, post-event contacts can be powerful evidence on your behalf. The rules of evidence allow for the admission of such evidence under foundational requirements which are relatively easy to meet.
A lawyer can walk you through which pieces of evidence will be the most valuable and help you take the steps necessary to preserve and make use of such evidence. It is vital that you resist the temptation to respond to these contacts. No-contact orders in domestic violence cases are a one-way street; in other words, it is technically not illegal for your accuser to contact you, it is only illegal for you to contact him or her. Don’t be baited into contacting your accuser and giving the prosecution ammunition to charge you with another crime.
It depends on the type of no-contact order. There are generally two types of domestic violence no-contact orders—the kind that are issued in conjunction with a criminal prosecution, and the kind that are issued as a result of a separate civil proceeding. If you are charged with a crime of domestic violence a judge will almost always issue a pretrial no-contact order, whether your accuser wants such a no-contact order or not. In rare instances, and only when the accuser advocates for it, a judge may lift such a no-contact order, but in the vast majority of cases you will not be able to get a no-contact order lifted while your case is pending. You may, however, be successful in modifying a no-contact order to allow for specific exceptions such as limited contact through a designated third-party or via email to make child custody arrangements. Your lawyer can help you make the necessary motion, either at your arraignment or a later bail hearing.
Upon the conclusion of your criminal case there may be a variety of outcomes regarding the no-contact condition. If you are acquitted or your case is dismissed the court has no jurisdiction to impose a no-contact order and the pretrial no-contact order will no longer have effect. If you are convicted, you will likely be subject to an extended no-contact order (up to two years for a misdemeanor conviction and five years or more for a felony conviction). However, the existence, length, and conditions of such orders are discretionary and may be successfully shortened, qualified, or eliminated with the help of a lawyer, either through plea negotiations or advocacy at a contested sentencing hearing.
A no-contact order which is issued as a result of a civil proceeding, such as a Domestic Violence Protection Order, will typically only be lifted upon motion of the protected party. The best way to avoid a civil protection order is to challenge its issuance from the beginning. Civil Protection Orders can only be imposed by a judge after a hearing in which he or she finds, by a preponderance of the evidence, that the party seeking protection has suffered acts of domestic violence or has been put in imminent fear of domestic violence. A lawyer can help you prepare for and represent you at a contested hearing, minimizing the chances you will be subject to a protection order which can show up in background checks, adversely affect your right to possess firearms, and subject you to future accusations, grounded or otherwise, that you committed a crime by violating the order (although Domestic Violence Protection Orders are civil in nature, violating one is a criminal act). If a judge grants the no-contact order, it will typically be in effect for a year, subject to the protected party’s motion to renew the protection order at the end of the year, though the law allows for an order to be issued for up to 5 years under certain circumstances.
There can be many consequences to a criminal conviction for domestic violence. Like any criminal conviction, a domestic violence conviction carries the possibility of jail time. Misdemeanor charges carry a maximum penalty of 364 days in jail, but sentences for first-time offenders will generally consist of a suspended sentence conditioned upon fulfillment of a number of sentence conditions such as a short period of jail confinement and/or alternative sanctions such as electronic home detention or community service. In most cases the judge will require an approximately year-long course of domestic-violence batterer’s treatment that the offender will have to pay for him or herself (according to a Washington State Institute of Public Policy study, the average cost of such treatment is $1,365—for the full WSIPP report click here.) Most domestic violence convictions will carry either supervised or court-monitored probation. Most courts will also impose no-contact orders of up to two years in misdemeanor cases and up to five years for most felony convictions.
Sentences for felony convictions are governed by the Sentencing Reform Act’s sentencing guidelines, and will depend on the seriousness of the offense and the criminal record of the defendant. Prior to recent changes in the sentencing law only felony convictions counted in the calculation of the “offender score.” Now prior domestic violence misdemeanor convictions can increase the defendant’s offender score. See RCW 9.94A.030(41).
Regardless of whether the offense is a misdemeanor or felony, domestic violence convictions carry significant collateral consequences. In addition to no-contact orders, all felony and most misdemeanor domestic violence convictions result in the relinquishment of the right to possess firearms. See RCW 9.41.040. Also, under federal immigration law, domestic violence convictions can be grounds for deportation or exclusion from admission for legal residents who are not yet U.S. citizens.
The impact of conviction in your case will depend upon its specific facts and circumstances. An attorney can advise you on the strengths and weaknesses of your case, the impact a conviction may have upon your future, and the wisdom of negotiating your case versus taking it to trial.
Unfortunately, once a domestic violence charge is brought, it is not up to the alleged victim to decide whether the case proceeds to trial. On television it is widely portrayed that it is up to the victim of a crime to “press charges” or “drop the charges.” However, in contemporary domestic violence prosecution it is wholly up to the prosecutor whether a case goes to trial. It is an article of faith among many prosecutors that a victim of domestic violence who “recants,” or changes his or her mind about an accusation, is probably only covering for his or her abuser, or fearful of retaliation from his or her abuser.
That said, an alleged victim’s wishes can hold weight with the prosecution. Sometimes the prosecution will be influenced favorably by the alleged victim’s input, either because they are persuaded that the case isn’t as serious as it first appeared, or because they make a strategic decision that the alleged victim’s testimony will not be helpful.
In any event, it is crucial that you obey any pretrial no-contact order that prevents you from having contact with your accuser. If you violate this order, and particularly if there is evidence that you are attempting to influence the testimony of your accuser, you may face additional charges for violating the order or witness tampering. Many lawyers who practice domestic violence defense can tell stories of clients who had strong defenses, only to shoot themselves in the foot by giving the prosecution the evidence to convict them of other charges.
If the prosecution elects to proceed with a prosecution against the alleged victim’s wishes, it is important to have an attorney who is knowledgeable of the Rules of Evidence and has experience arguing against the various “hearsay exceptions” that the State will attempt to exploit to admit evidence against the accused without the accuser having to testify.