The ABCs of domestic violence
For the next few months, I will be focusing on domestic violence, a very serious and complex topic. For the victims, it can be a life-changing and life-turning event. For the perpetrators, it may create a loss of liberty, job opportunities, privileges and the stigma of being labeled as such.
During my time as a prosecutor in Aspen, I handled close to 100 domestic-violence cases and can attest that these acts are more common and prevalent than one may think. Additionally, the perpetrators run the gamut in race, gender and socioeconomic backgrounds.
Domestic violence is not a crime in and of itself. Domestic violence is an enhancement to other criminal offenses such as harassment, assault, trespass and destruction of property, among other crimes. Upon conviction, the domestic-violence enhancement carries additional sentencing considerations, including mandatory perpetrator treatment.
Criminally, domestic violence is defined as “an act or threatened act of violence against a person with whom the actor is or has been involved in an intimate relationship.” An intimate relationship is defined as “a relationship between spouses, former spouses, past or present unmarried couples or persons who are both parents of the same child regardless of whether the persons have been married or have lived together at any time.”
Domestic violence also includes “any other crime against a person or against property or any municipal ordinance violation against a person or against property when used as a method of coercion, control, punishment, intimidation or revenge directed against a person with whom the actor is or has been involved in an intimate relationship.”
To help and simplify this complex legislative and legal maze, let’s break it down. In the criminal context, in order for a crime to be given the domestic-violence classification, the people involved first must have been in an intimate relationship as per the definition by law. However, the way in which the legislatures use the term “intimate” is really more a term of art because the couple involved does not need to be intimate in the way we commonly connote the word “intimate” in a sexual nature. They merely need to represent themselves as a couple, of either different sexes or the same sex.
To illustrate, I had a case where two individuals met on match.com and only went on a couple of dates without being sexually intimate. On their third date, one party assaulted the other. This case was deemed one of domestic violence because the purpose and intent of their being together was to establish an intimate relationship.
Conversely, what happens in the context of a one-night stand or a prostitute-client relationship? Would this be deemed an intimate relationship based on the definition provided by the legislatures? This is where interpretation plays a large role in defining what is an “intimate relationship.” States are left to their own individual definitions and interpretation as to what is intimate, so unfortunately, there is no national bright-line rule.
Next, in order for the domestic-violence classification to be designated, the crime committed must either be an act of violence or a threatened act of violence. To demonstrate, say a couple in an intimate relationship gets into a fight, and one person hits the other, causing pain. That is a third-degree assault domestic violence. Simple! However, the second, more complex and often misinterpreted way of committing an act of domestic violence is the commission of a nonviolent crime that was done for the purpose of any one of five methods: coercion, control, punishment, revenge or intimidation. This is where it tends to get complicated. Because in order to prove such a case, the prosecution must show that a crime was committed and the non-violent crime was done for any of the five method purposes. An example would be if one person continuously calls, emails or texts another person to the point that it becomes harassment. The crime would be that of harassment; however, in order for it to be domestic violence, the communication must have been done for one of the five purposes.
So how is that determined? Law enforcement would have to see the content of the communication and establish if there was anything being said that would make it helpful to determine the purpose. They would want to ask the sender of the various communications why they were sent. Sometimes it is not blatantly obvious as to the underlying purpose of why a non-violent crime is committed. Perhaps it was just done out of anger, frustration or by accident, and that is when it becomes difficult for law enforcement.
Next month, I will discuss the mandates on law enforcement on making arrests in domestic-violence cases and what they are evaluating before making such an arrest.
Richard Nedlin is a former prosecutor who currently practices defense law in Aspen. His column runs monthly in The Aspen Times.
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