Assault and Battery on a Family or Household Member is considered a form of domestic violence in Virginia. It is a Class 1 Misdemeanor to assault a family or household member. This means you can face up to 12 months in jail and a $2500 fine if convicted. The Fairfax County Juvenile and Domestic Relations Court is where these domestic assault cases are heard.
In many of our domestic assault cases, people call the police because they want the police to mediate their dispute. In other cases, a family member will call the police because an argument is getting out of hand which certainly can become a safety issue. In any case, people are generally not aware that there is a general rule with domestic violence cases that the police need to arrest someone and have issued a temporary emergency 72-hour protective order forcing the two apart. As a result, many people are arrested and charged with Assault on a Family or Household Member when that was not the intent of the other person involved.
We recommend you give us a call at 703-273-4100 for a free consultation or use the contact form below. In these cases, it is important to have an attorney to avoid a conviction or jail sentence. Please note that even if the “victim” does not wish to proceed the prosecutor may not simply dismiss the case because of that. We have had many cases where the victim will ask the prosecutor to drop the charges and, yet, the prosecutor still wishes to proceed with the case because they believe there may be real violence involved which may not be the case. They can do this because the victim is not a party but merely a witness to the Commonwealth. Thus, a trial puts an individual without a lawyer at a major disadvantage in their case.
DEFINING AN ASSAULT AND BATTERY OF A FAMILY OR HOUSEHOLD MEMBER
Assault and Battery of a Family or Household Member is codified under Virginia Code §18.2-57.2. A first offense or second offense Assault on a Family member charge is a Class 1 Misdemeanor. A third offense Assault on a Felony Member is a Class 6 Felony. The statute does not define what an assault is. Instead, we have case law that has defined an Assault and Battery on a Family Member as, essentially, a harmful or offensive touching of another person or an unsuccessful attempt to commit an assault. What separates this charge from simple assault and battery is that it is between a "family or household member" and these cases are handled a bit differently.
Examples of Assault on a Family Member include a myriad of actions. We have had cases of pushing or hitting the other person, throwing dishes at them, cutting their hair, spitting on them, and trying to hit them unsuccessfully among many other cases. The gravity of the Assault depends on the conduct. For example, a prosecutor will view a slap as much less dangerous than hitting with or throwing a glass beer bottle.
Family or Household member is defined under §16.1-228 of the Virginia Code. Family or Household member includes:
(i) Spouse; (ii) Former Spouse; (iii) Parents, Stepparents, Children, Stepchildren, Brothers, Sisters, Half-Brothers, Half-Sisters, Grandparents, and Grandchildren; (iv) Mother-in-Law, Father-in-Law, Sons-in-Law, Daughters-in-Law, Brothers-in-Law and Sisters-in-Law who reside in the same house as the person; (v) Any individual who has a child in common with the person; (vi) any individual who cohabits or, within the previous 12 months, cohabited with the individual, and any children of either of them then residing in the same home as the person.
Sometimes, if it's unclear whether or not the parties fall under "family or household member," it can be challenged. However, in most cases, we advise our clients to leave the matter in the Fairfax County Juvenile and Domestic Relations Court because there are more remedies available in that Court than in General District Court.
THE ASSAULT CHARGE PROCESS in fairfax county
First, in these cases, an emergency protective order is issued pursuant to §16.1-253.4 (in order to separate the parties). The protective order is for 72 hours. Most protective orders will even ban the alleged perpetrator from the home leaving them to have to stay with other family or friends. In addition, it is important to note that it will likely bar phone calls and text messages between the parties. Sometimes the protective order will simply ban assaultive contact between the parties and allow the parties to continue to cohabitate together.
Next, in Fairfax County, an advisement hearing will be set. This is not a trial date. Rather, it is a court date where a clerk will set the trial date. Neither the arresting police officer nor the alleged victim will be present during this hearing. If an attorney is hired enough in advance this court date can be waived. If an attorney is not hired in advance of the advisement hearing the person should be present for it.
Finally, a trial date is now set. This trial date is when the case will be decided by a Judge and all of the parties are present (most of the time). If you have a lawyer, you will not need to speak to the Judge (unless you are testifying) and won't have to talk to the police officer or the prosecutor. We have our clients prepared for the trial date and will either have a trial or negotiate a plea depending on the facts of the case. Many cases are ripe for trial since there are usually no other witnesses than the parties themselves. In other cases, we may want to exercise one of the statutory remedies.
For the trial date the summons you receive from the court will advise a hearing time that is 30 minutes before your court time. This is to ensure that all parties are ready on time for the hearing. The Fairfax County Juvenile and Domestic Relations Court is a very busy court system so they must be timely or their dockets get very backed up. We have had cases get heard many hours after the set court time simply because there were many cases before us that took a long time to get resolved.
In addition, at the court hearing, you can expect to see the alleged victim (sometimes our clients ride together with them to court), the arresting police officer, any other police officers that were involved in the investigation, a victim service's advocate from the Victim Services Division, and assigned prosecutor. A victim service's advocate is a representative from the Major Crimes Bureau that offers support and assistance to crime victims. There will come a time when the prosecutor wishes to speak to the alleged victim and the victim advocate will be present during these discussions to ensure the alleged victim is heard. In some cases where the alleged victim does not wish to proceed with the case and it appears from the evidence that the case may be pressed forward by a prosecutor the alleged victim may wish to hire their own private attorney to represent them in court.
DISMISSAL of DOMESTIC ASSAULT CASES
Persons charged with first offense of assault and battery against a family or household member may be placed on local community based probation under §18.2-57.3 of the Virginia Code. When a person is charged with a violation of §18.2-57.2 (domestic assault), the court may defer the proceedings against the person, without a finding of guilt, and place them on probation under the terms of this section. Upon fulfillment of the terms and conditions specified in the court order, the court shall discharge the person and dismiss the proceedings against him. Generally, the court will continue the case for two years and refer the offending individual to an anger management program and, sometimes, parenting classes or an alcohol or drug program. Provided the program is completed and no new criminal convictions were incurred during that time period, the court will dismiss the charge.
Because this statutory remedy is readily available, we will go to trial on most of our Assault and Battery against Family or Household member cases if the prosecutor will not agree to dismiss the charge. This is because, even if the Judge finds enough evidence to sustain a guilty finding, most Judges will allow the person the benefits under this statute for deferral of the charge. In the event we are dealing with what appears to be a bad assault, we may wish to agree to this outcome if it can be negotiated in lieu of trial since the Judge may not agree to it otherwise.
Notwithstanding the availability of the probation deferral, we rarely agree to it. A deferral under Virginia §18.2-57.3 cannot be expunged from the criminal record. This means that, while the charge may ultimately be dismissed, it remains on the criminal record forever. Consequently, we want to fashion a resolution to the case so that the case can be dismissed and expunged.
To accomplish dismissal of the charge we will, in many cases, have our clients take an anger management class before court. If alcohol was involved we may also recommend an alcohol program as well. In certain cases we have also recommended couples counseling. This helps put the prosecutor in a position where they can consider outright dismissing the charge.
In those cases where a trial is warranted, we will explore defenses to the Assault charge. This may include self-defense, mutual combat (meaning both parties have consented to the physical altercation), or that it never happened in the manner the police believe it did. We have had many acquittals where the alleged victim and our client claim different stories so, in the end, the Judge dismissed the charge since they cannot tell what happened during the altercation (i.e. evidence is in a state of equipoise).
YOUR FREE CONSULTATION
We would be happy to talk to you about your case. Sometimes people have resolved their differences by the time they call us. In other cases, the relationship in a state of disrepair and there is bad blood. In either case, we strongly recommend you contact us to discuss your options. Relationships between husbands, wives, mothers, fathers, brothers, and sisters are very potent and so can be disagreements. But a major argument should not necessarily result in a criminal conviction.