Family Abuse / Domestic Violence: Assault and Battery Against a Family or Household Member - Attorney Daniel K. Kim | 김기희 변호사 / 전직 검사

Cases of family abuse or domestic violence may be in court for a civil matter or a criminal matter.

Civil cases include those when a party is seeking a Protective Order ordering another person to stop certain actions.
Criminal family abuse includes cases of domestic assault and battery when the perpetrator of the violence may be jailed or ordered to comply with various conditions if the defendant is found guilty.

Family Abuse Defined

“Family abuse” means any act involving violence, force, or threat including any forceful detention, which results in physical injury or places one in reasonable apprehension of serious bodily injury and which is committed by a person against such a person’s family or household member.

A “family or household member” includes:

Spouse, regardless of residence,
Ex-spouse, regardless of residence,
In-laws who live in the same home,
Persons who have a child in common regardless of residence,
Co-habitants, and
Those who have cohabited in the past year and their children.

Criminal Cases of Family Abuse

Arrest

When police have reason to believe hat a domestic assault and battery has occurred, the law requires them to arrest the person suspected of the crime.

Punishment

Any person who commits domestic assault and battery or family abuse shall be guilty of a Class 1 misdemeanor, punishable by up to 12 months in jail and a $2500 fine. Three or more convictions in a 10-year period elevate the crime to a Class 6 felony, punishable by up to five years in prison. The prior convictions can be from other jurisdictions in Virginia, but they must have occurred on different dates.

Criminal Cases of Stalking

Stalking – A stalker is anyone who, on more than one occasion, engages in conduct with the intent to place the victim in fear, or with the knowledge that the victim is placed in fear of death, sexual assault, or bodily injury to the victim or the victim’s family/household member.

Punishment for Stalking

Stalking is a Class 1 misdemeanor punishable by up to 12 months in jail and a $2500 fine. Three or more convictions within a five-year period elevate the crime to a Class 6 felony, punishable by up to five years in prison. A person may be charged with stalking in any jurisdiction in Virginia as long as the offender engaged in stalking conduct at least once in that jurisdiction.

If a court finds a person guilty of stalking, the judge must issue a Protective Order prohibiting contact between the defendant and the victim or victim’s household.

Civil Protective Orders: Family Abuse Cases

Purpose of Civil Protective Orders in Family Abuse Cases – Protective orders are issued by the court to prevent the offending person from having any contact with the family or household members being protected by the order, and to provide other conditions. Violation of a protective order is a Class 1 misdemeanor, punishable by up to 12 months in jail.

Types of Protective Orders in Family Abuse Cases

The three main types of Protective Orders – the Emergency Protective Order, Preliminary Protective Order, and up to two year Protective Order- are described below. Protective orders can also be issued for stalking victims.

Emergency Protective Order (EPO)

An Emergency Protective Order (EPO) is requested from the court every time an arrest is made for domestic assault and battery or when there is reason to believe family abuse has occurred or will occur.

Either a law enforcement officer or a victim of abuse may petition the magistrate for an EPO. EPOs are good for at least 72 hours and must end at 5:00 p.m. on a day that the Juvenile and Domestic Relations District Court is open. Law enforcement officers may request an extension of an EPO if the person in need of protection is mentally or physically incapable of petitioning for further protection on his/her behalf.

Preliminary Protective Order (PPO)

A victim of abuse may file a petition at the Intake Office of the Court Service Unit for a Preliminary Protective Order (PPO). The court may also issue a PPO when a person says that they have been or are in immediate danger of becoming a victim of family abuse. A PPO may be issued ex parte (with only one side present).

PPOs are issued to prohibit acts of family abuse or contact with family/household members, and/or to grant residence to family/household members. The PPO must specify a date for a full hearing, which must be held within 15 days, with notice given to both parties of the date of the full hearing.

Protective Order (PO)

A victim of family abuse may request a Protective Order (PO) by filing a petition with the Intake Office of the Court Service Unit. A PO may only be issued after notice to both parties and opportunity for a full hearing before a judge.

A PO may have one or more of the following provisions:

prohibit acts of family abuse,
prohibit contact with family/household members,
grant the residence to family/household members,
grant temporary possession of a jointly-owned or a victim-owned motor vehicle,
require someone to provide alternate housing for family/household members,
order the person who committed the family abuse into treatment or rehabilitative programs, and/or
order temporary custody for up to two years.

A PO may be valid for a specified period of up to two years when the court finds that he/she has been or is in immediate danger of becoming a victim of family abuse.

Violations of Family Abuse Civil Protective Orders

A violation of certain terms of any of the above Civil Protective Orders in Family Abuse cases can result in a criminal charge of a Class 1 misdemeanor issued by the magistrate. If found guilty, the violator may be sentenced to a term of up to 12 months in jail and a $2500 fine.

Firearms Laws Related to Family Abuse and Stalking

The Federal Gun Control Act was amended effective September 30, 1996, to make it unlawful for any person convicted of a misdemeanor crime of domestic violence to possess, purchase, or receive firearms or ammunition.

Virginia law also makes it a crime (Class 1 misdemeanor) for a person who is subject to a protective order to purchase or transport any firearm while the protective order is in effect. This prohibition applies to Emergency Protective Orders, Preliminary Protective Order, Protective Orders, Stalking Emergency Protective Orders, Stalking Preliminary Protective Orders and Stalking Protective Orders.

§ 18.2-57.2. Assault and battery against a family or household member; penalty.

A. Any person who commits an assault and battery against a family or household member is guilty of a Class 1 misdemeanor.

B. Upon a conviction for assault and battery against a family or household member, where it is alleged in the warrant, petition, information, or indictment on which a person is convicted, that such person has been previously convicted of two offenses against a family or household member of (i) assault and battery against a family or household member in violation of this section, (ii) malicious wounding or unlawful wounding in violation of § 18.2-51, (iii) aggravated malicious wounding in violation of § 18.2-51.2, (iv) malicious bodily injury by means of a substance in violation of § 18.2-52, (v) strangulation in violation of § 18.2-51.6, or (vi) an offense under the law of any other jurisdiction which has the same elements of any of the above offenses, in any combination, all of which occurred within a period of 20 years, and each of which occurred on a different date, such person is guilty of a Class 6 felony.

C. Whenever a warrant for a violation of this section is issued, the magistrate shall issue an emergency protective order as authorized by § 16.1-253.4, except if the defendant is a minor, an emergency protective order shall not be required.

D. The definition of “family or household member” in § 16.1-228 applies to this section.