As family law practitioners, we are bound to encounter crimes of family violence. The American Association for Marriage and Family Therapy estimates that some form of physical violence occurs in nearly 20 percent of marriages or intimate relationships. Every domestic attorney will eventually consult with a client accused of domestic violence before or during a divorce or custody matter. Although many who encounter such a client would prefer to recommend a criminal defense attorney to manage the case, it is important to recognize the common elements, potential risks, and typical defenses in domestic violence cases to better coordinate a comprehensive strategy during concurrent matters.
^When criminal charges are proceeding in parallel with civil charges involving domestic violence, allowing your client testify in a “he said-she said” swearing contest if your client is the criminal defendant is risky.
^Always be wary of the Lautenberg Amendment when defending the accused against a domestic violence charge.The negotiations or trial is over, and you have a shared parenting arrangement to work with. Perhaps this was what you had hoped for, or it may be that you have reluctantly agreed, or even had it ordered over your objections. No matter how you have gotten to this point, you and your children need to adapt and thrive under this new arrangement. If you preferred the shared arrangement, then you are motivated to make sure that it successfully meets the needs of your children. On the other hand, if you did not initially feel this parenting schedule was best, you still have to do whatever you can to ensure that your children grow and thrive now and in the future, both personally and in their relationships with you and their other parent.
Crimes of family violence may be distinguished from other violent crimes simply by virtue of an intimate partnership between the accused and the victim. At the heart of these offenses is the underlying crime, such as assault, battery, or terroristic threats. That underlying charge is elevated by proof of an intimate relationship, the elements of which vary state-to-state. Across the board, spouses and children are considered to have an intimate relationship with the accused elevating the charge to family violence. This is trickier, however, when the intimate partner is a relatively new girlfriend or her child. If the accused was charged under a statute relating to a crime of family violence, then the intimate relationship becomes an element of the crime that must be proven beyond a reasonable doubt by the prosecution.
When your client has been the victim of a crime of family violence, it is imperative to understand the particulars of the incident(s). Often, counsel for victims in a civil case will elicit broad allegations, such as “Throughout the marriage, did the Respondent strike you?” or “Seven years ago, did you and the Respondent get into an argument where he turned violent?” Although this sort of testimony may motivate some sympathy with a judge, it sets the victim up for damaging cross-examination if the relationship continued or if the victim continued to allow the accused parenting time despite the incident.
In practice, this scenario demonstrates the need for recent, specific allegations. Ideally, the victim reported the crime immediately, and the victim’s attorney a police report detailing the incident. Frequently, however, the alleged incident occurred months or years before, potentially beyond the criminal statute of limitations. Accordingly, it is imperative to know these deadlines and how they are measured—even if you practice strictly domestic law—as it may affect your advice to either a victim (whether the victim needs to act quickly to pursue criminal charges) or a potential aggressor (i.e., the accused’s decision to testify regarding an alleged incident). From a criminal perspective, the most important takeaways are that you must be familiar with (1) the elements of a family violence crime in your jurisdiction, (2) the statute of limitations, and (3) how these apply to the facts in the case before you.
The most immediate form of civil relief available to a family violence victim is a temporary protective order (TPO), sometimes called a temporary restraining order or civil order of protection. Family law practitioners should be familiar with TPO procedures to be able to guide their clients.
Typically, the need for a TPO is apparent from the initial client consultation. The client may present allegations of recent incidents of violence as “the last straw” in a long souring relationship, prompting the need to seek a divorce or other remedy. Sometimes, however, the need arises during pending litigation when tensions become high. In either instance, it is the attorney’s job to walk the client through the decision, explaining the process and potential risks associated with seeking a TPO.
The first stage is typically an ex-parte process. Here, immediate relief overcomes the interest in permitting the accused to mount a defense. The accuser addresses the court directly, often without the assistance of counsel, requesting a protective order for a period of 30 to 90 days. If the accuser’s allegations are credible, the court issues an ex-parte protective order to be served on the accused, and a full hearing is scheduled to address the allegations. It is important to understand that an ex-parte order carries the same weight of a temporary protective order, including that the accused shall have no contact with the victim and/or the parties’ children, inability to carry a firearm (addressed below), and any other protections the court deems necessary.
Once the accused is served with the ex-parte order, the second stage begins. Next, the court schedules a second hearing to address whether the protective order should be extended beyond the initial period. Because a temporary protective order is a form of civil, not criminal, relief, the accuser carries the burden to prove by a preponderance of the evidence that the alleged offense occurred and that the offender presents an ongoing risk. The action culminates in a hearing which is often won or lost depending on which party appears more credible.
When criminal charges are proceeding in parallel, having your client testify in a “He said-She said” swearing contest is a dicey proposition if your client is the criminal defendant. These proceedings are frequently reported/recorded and are available to prosecutors for use as prior consistent statements, prior inconsistent statements, impeachment, and/or admissions. In such cases, it is often prudent to not have your client testify (though the decision is always the client’s) and to defend only by impeaching and undermining the accuser’s narrative and credibility.
Outside the context of a TPO, domestic attorneys often find allegations of domestic violence useful in ongoing divorce and/or custody proceedings. When the allegations are credible and accompanied by a TPO or pending criminal charges, they can provide tremendous leverage. When the allegations are thin or the state has elected not to prosecute, however, the accuser’s attorney should be wary of raising the issue before the court. Most importantly, if it becomes clear that the accuser has fabricated allegations to gain a strategic advantage in a divorce or civil case, a judge may rule against the accuser for attempting to abuse the system.
When defending a client accused of domestic violence, attorneys must craft defenses to match the facts of each case. Typically, the theme of a defense falls under two common strategies: (1) the accused acted in self-defense; and/or (2) the alleged incident did not occur/was taken out of context.
Whether your client is defending domestic violence charge in a civil or criminal matter, self-defense is a powerful strategy. Self-defense typically relies on differing stories between the alleged victim and offender, and the surrounding circumstances tend to tell a more comprehensive story. Assuming the only witnesses to the incident are the individuals involved, it is vital to scrutinize the parties’ communications (e.g., text, e-mail, and recorded audio) leading up to and immediately after an alleged incident. Often these show the nature of the dispute, such as aggressiveness, remorse, quid-pro-quo, even blackmail. For instance, if the alleged victim sent a message in the hours following an assault apologizing for his or her actions, it serves as valuable ammunition for impeachment. We once defended a client accused of strangling his partner. Troves of texts indicated that the parties enjoyed sexual bondage including consensual strangulation, referred to as “breath play.” When the judge learned this and the motivation of the accuser to fabricate allegations for advantage, she dismissed the TPO immediately.
In the criminal context, self-defense also opens the door to character evidence for ordinarily prohibited purposes. Under Federal Rule of Evidence 404(a), “[e]vidence of a person’s character or character trait is prohibited to show that on a particular occasion the person acted in accordance with the character or trait.” The following subsection, however, creates an explicit exception for criminal defendants where the defendant’s character is “pertinent” to the charge. In domestic assault, this rule permits the defense to present character witnesses who state the accused has a peaceful character and, in their opinion, would never act violently unless provoked. Remember, offering this evidence opens the door for a prosecutor to present rebuttal evidence of the defendant’s violent character and specific instances of such. If your client wishes to present positive character evidence, you should carefully consider the matter and ensure that no one (except the alleged victim) will testify to the contrary.
Rule 404 also allows defendants to offer evidence of an alleged victim’s pertinent trait, subject to the limitations of Rule 412 (the “rape shield” rule). A “pertinent” trait in self-defense is a violent propensity. If the defendant offers evidence that the victim has violent tendencies, it is imperative to remember that such testimony is limited to opinion and reputation for violence and not specific acts of violence, except on cross-examination. Again, even though a criminal defendant enjoys this right, exercising it enables the state to respond with both rebuttal evidence regarding the victim and evidence of the defendant’s same trait.
In practice, it is important to explore these options with the client to determine who might testify for or against him. Often, friends and family will testify in a defendant’s favor. Predictably, their testimony does not carry much weight with the factfinder. The most valuable or most damaging witness for the defense is the defendant’s former partner/spouse. This person has the unique ability to testify about the prior relationship and their opinion of his character. A former partner becomes especially useful when their opinion remains positive despite the end of a relationship. If you discover such a person, always engage them with kindness and understanding. It is easy to turn a friendly witness into a neutral or even hostile witness by calling too often, appearing too abrasive, or demanding compliance with a preferred narrative.
If you cannot argue self-defense, you might be able to that the alleged event never even occurred. Again, domestic violence commonly occurs inside buildings with no one present except the alleged victim and offender. This often leads to “He said, She said” swearing contests where witness credibility is key.
Again, the context of the proceeding will govern the approach. While the accused in a civil case must argue that the incident did not occur, the accused in a criminal case has the luxury of asserting that the state cannot prove that the incident occurred. As always, the burden should inform the tone of a case presentation.
Finally, the accused’s attorney must always be cognizant of Rule 609 and its limitations. Rule 609 permits the attorney to undermine a witness by confronting him with a prior conviction for a felony or for a crime of dishonesty. Impeaching a witness with such evidence is simple when the witness was convicted of fraud, but impeachment is less useful where the underlying felony does not involve dishonesty (e.g., drug possession). Counsel must also know Rule 609’s 10-year limitation and its exceptions. If more than 10 years have passed since the witness’s conviction/release (whichever is later), you must disclose it in writing, and it must survive a “reverse 403” balancing test. Sometimes, it is better to exercise restraint and not dig up every piece of dirt you on the witness; attempting to introduce irrelevant matters diminishes the accused’s credibility.
In defending the accused against a domestic violence charge, the attorney should always be wary of the Lautenberg Amendment. Enacted in 1996 the Lautenberg Amendment modified the Gun Control Act of 1968 to prohibit any person convicted of a “misdemeanor crime of domestic violence” from purchasing or possessing a firearm. Previously, the Act applied only to prior felony convictions, creating an incentive for felony defendants to plead guilty to a lesser included offense, like misdemeanor assault or battery.
It is important to understand that Lautenberg bans firearm possession for life unless/until a qualifying conviction is set-aside, pardoned, expunged, or the offender has otherwise had his right to possess firearms restored by the state. Lautenberg also prohibits those who have had a civil protective order for domestic violence issued against them from firearms possession for the duration of the civil order.
Clients objecting to a Lautenberg firearm ban typically are (1) those serving in the military/law enforcement or other careers where carrying firearms is required, (2) hunters, (3) firearms dealers, and (4) those who feel they have unalienable constitutional rights to possess firearms.
Under this statute, a “misdemeanor crime of domestic violence” means any misdemeanor under federal, state, tribal, or local law, and which
has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, by a person similarly situated to a spouse, parent, or guardian of the victim, or by a person who has a current or recent former dating relationship with the victim.
Under this broad umbrella, it is exceptionally difficult to avoid a Lautenberg ban when your client is accused of a crime of family violence or has a pending TPO charge. Of course, an acquittal/dismissal is often the best way to avoid a conviction, but it is also possible to avoid Lautenberg’s implications using more nuanced approaches.
One alternative is persuading the accuser not to pursue charges. If the accuser’s primary motivation is to gain an advantage in related litigation, he or she may support dismissal for a more favorable divorce settlement or child custody arrangement. Such agreements, however, are no guarantee. While a party to a civil suit may agree to support dismissal or a plea favorable to the other party’s position, it is unlawful for a party to exchange value for another party’s agreement not to testify against him or to otherwise withhold evidence in a criminal proceeding. Also, once evidence is presented to law enforcement, it may not always be possible for an accuser to walk this back.
Another approach is to seek a plea agreement that does not include a misdemeanor crime of domestic violence. For example, suppose the defendant is accused of misdemeanor assault against his wife and sister-in-law for raising his hands to them during an argument. The defendant may avoid Lautenberg by entering a guilty plea to assault against his sister-in-law (so long as she does not qualify as an intimate/family partner under the state statute) in exchange for a dismissal of charges with respect to his wife. Regardless, clients must be well informed of Lautenberg implications when facing a domestic violence charge, particularly if the client’s career requires possessing firearms.
Sometimes people ask, “Why not just have your client plea to a non-family charge, like simple assault instead of a family violence charge?” This was commonly done until the United States Supreme Court held in United States v. Hayes, 555 U.S. 415 (2009) that Lautenberg was triggered by plea or conviction where the underlying facts indicate a Lautenberg violation irrespective of whether the criminal charge includes a family/intimate partner relationship as an element of the offense. Now, the only way to avoid a Lautenberg ban is to avoid any factual predicate on record that violates Lautenberg.
Finally, Lautenberg is a federal law, so states cannot prosecute its violation. In many metro areas, the Justice Department may be less interested or too busy to prosecute mere Lautenberg violations. However, some states have Lautenberg-like firearms laws (e.g., California, Colorado, and Tennessee). You need to know whether your state does.
Understanding criminal law regarding domestic violence is vital for family law attorneys. It is of great benefit to every family law attorney to observe or participate in a few of these cases to build outside experience. Even if you never intend to practice criminal law, you should be prepared to advise clients on both sides of a domestic violence accusation on what to expect, what to avoid, and what to do when the issue arises.
