In Washington State, there is no crime of domestic violence. Rather, domestic violence is a label placed on other crimes that indicates that there is a family or family relationship between the parties involved. Most jurisdictions will impose a no-contact order that prohibits the defendant in a domestic violence (“DV”) case from having contact with the alleged victim of the crime. The order often prohibits contact with the victim’s children, residence, and workplace as well.
Family or family relationship
According to RCW 10.99.020 (3), family or household members are defined as:
[S]spouses, ex-spouses, people regardless of whether they have a child in common, whether they have been married or have lived together at some time, adult people related by blood or marriage, adult people who currently reside together or who have resided together In the past, persons sixteen years of age or older who currently reside together or who have resided together in the past and who have or have had a relationship with a partner, persons sixteen years of age or older with whom a person sixteen years of age of age or older is or has been in a dating relationship and persons who have a biological or legal relationship between parents and children, including stepparents and stepchildren and grandparents and grandchildren.
As you can see, this definition is extremely broad. It is much more inclusive than most people would expect it to be. The same is true for the types of crimes that are called “domestic violence.” Most people only think of Assault when it comes to domestic violence, however there are many other crimes that can carry the DV label.
Mandatory arrest
In accordance with RCW 10.31.100 (2) (c), an official should make an arrest if: The person is sixteen years of age or older and within the previous four hours has assaulted a family or household member as defined in RCW 10.99.020 and the officer believes:
(i) A criminal assault has occurred;
(ii) an assault has occurred that has resulted in bodily injury to the victim, whether the injury is observed by the responding officer or not; gold
(iii) that any physical action has occurred that was intended to cause another person to reasonably fear imminent serious bodily injury or death. Bodily injury means physical pain, illness, or deterioration in physical condition. When the officer has probable cause to believe that family or household members have assaulted each other, the officer is not required to arrest both persons. The officer will arrest the person who the officer believes is the primary physical assailant. In making this determination, the officer will use reasonable efforts to consider:
(i) The intent to protect victims of domestic violence under RCW 10.99.010;
(ii) the comparative extent of injuries inflicted or serious threats that create fear of physical injury; Y
(iii) the history of domestic violence among the people involved.
If you are arrested for a crime involving domestic violence, a No Contact Order will be imposed almost immediately.
No contact requests
There are two types of No Contact Orders in Washington State: Pre-Trial and Post-Conviction. Both types of orders prevent the accused from having contact with the alleged victim. However, no type prevents the victim from trying to have contact with the defendant, as only the defendant goes to jail if the order is violated. In other words, No Contact Orders limit only the defendant’s behavior.
Prejudice
Pretrial Orders are issued against the defendant (sometimes called the Defendant) before he or she is found guilty of doing something wrong. These orders can prevent contact between the defendant and the alleged crime victim, the victim’s children (even if they are also the defendant’s children), the victim’s workplace, and the victim’s home (even if it is also the defendant’s home).
In other words, these orders can force you to leave your home and your children before you have been convicted of a crime. This is true even if the victim says nothing happened or that everything that happened was disproportionate.
Pretrial orders remain in effect until the criminal case is resolved or lifted by a judge.
Post-Conviction
A no contact order issued after conviction can have the same types of restrictions as a pretrial order. Post-conviction orders are generally valid for one year, however a judge can extend that if he feels the facts warrant.
Civil standby
Since a no-contact order can prevent you from going to your own home, the courts will generally allow you a trip home to get clothes and some personal items. However, you must be accompanied by a law enforcement officer. This process is called “Civil Standby”. You must contact the law enforcement agency and schedule a time for the civil reserve. However, keep in mind that this is a low priority action for most law enforcement agencies, so the civil reserve will only be made when they have time to spare.
Violation of a no contact order
An intentional violation of a no contact order is a serious misdemeanor; meaning you can receive up to a year in jail and a $ 5,000 fine. Since violation of a Domestic Violence No Contact Order is itself considered a domestic violence crime, your rights to own or possess firearms will be forfeited at the time of conviction, even if it was not used, possessed, or otherwise. mentioned or used a weapon in any other way. This is true even when the underlying criminal case, which led to the issuance of the no-contact order, is dismissed.
Being in a public place, even in court, is not a defense for violating the order. This means that if an order is issued against you and you see the protected person at a grocery store, you should leave. Involuntary contact may not technically violate the order, but you may have to appear in front of a judge to defend yourself. In addition to the stress involved, you may have to spend more money to hire an attorney.
Even if the victim invites contact, the defendant can face jail time if the order is violated. What I see most often in my cases is the following scenario:
Two people have a relationship. Something happens and the police are called. Because of everyone’s sensitivity to “domestic violence,” the police are inclined to accuse someone. This is followed by a no contact order, which prevents the two people from having contact with each other. It can also make one of them unexpectedly homeless, but that’s a different problem. People, being people, want to solve the problem and the alleged victim contacts the defendant and says something like: “I am very sorry that all this is happening. Come home and I will make it worthwhile.” The problem, of course , is that the accused accepts the offer of the alleged victim. Usually legal trouble multiplies for the defendant soon after, as the happy couple go out to celebrate their renewed relationship only to do a “slow and ready” at a stop sign – or some other minor traffic violation. They are then detained by the police. When the officer executes the information on the occupants, the no-contact order goes up and the defendant is arrested and then taken to jail, where he now faces an additional charge.
Order removal
It is very difficult to remove a Pretrial No Contact order once it is in place. Even if the victim comes in and testifies before the judge that the order is not necessary, most judges will leave the order in place.
One strategy is for the accused to be evaluated by a Domestic Violence Treatment Agency. If a counselor is willing to tell the judge that the defendant would not pose a danger to the victim if the order is withdrawn, then the judge can remove the order. The Treatment Agency may want to take the defendant to class before agreeing to make a recommendation to the judge.
Another strategy is to ask the Court to modify the No Contact Order to allow marriage counseling. Some judges will require that contact be allowed only while being monitored by a third party from the treatment agency.
Once a no contact order has been modified to allow conditional contact, a judge is more likely to remove the order later, unless there is a new problem.
Rights of victims
Most prosecutors have a domestic violence advocate. This person’s job is to help the victim of a domestic violence crime understand what services are available to them and help them stay informed as the court process progresses.
I have seen numerous cases where the victim does not want the No Contact Order to be in effect. Sometimes it can be helpful to consult a victim advocate.
Most courts have a form that the alleged victim can complete requesting that the judge withdraw the no contact order. In my experience, most judges will uphold the order even after the victim requests that it be removed. Even though the order remains in effect, having the victim request its removal is still valuable, as it can be helpful in a later attempt to remove the order.
Gun rights
Conviction for a crime labeled domestic violence will cause you to lose your right to own or possess firearms. This is a lifetime ban.
Example
In one case I had, the husband was arrested on a domestic violence charge when, during an argument, he threw a bowl into the kitchen sink and broke it. The argument was overheard by a close neighbor who called the police. Police arrived and when they looked in the sink, they found the chipped bowl and arrested the husband for malicious domestic violence shenanigans. There was no allegation that the husband threw the bowl at his wife, or even near her. Since Washington is a Community Property state, both husband and wife had an ownership interest in the bowl, therefore, by breaking their bowl, the husband damaged property that belonged to another (i.e. his wife) and was therefore responsible for malicious mischief. Without a lawyer, the husband (who had no criminal record) pleaded guilty at the arraignment. He was given a one-year no-contact order that prevented him from going home for a year or having contact with his wife.
If the husband had contacted an attorney before pleading guilty, he may not have had a conviction. Even if there was a conviction, an attorney could have helped you avoid such a lengthy No Contact Order.
Copyright (c) 2007 The Cahoon Law Office – All rights reserved.