Miscellaneous

Deciphering the Domestic Dispute

 The family: more than any other institution, it is perhaps the most universally celebrated and inherently beneficial.  Whether direct blood relatives or spousal associates, family members are often among the most trusted and reliable of all individuals one is likely to encounter in life.  Yet, just as the family is often the most positive force in the lives of many people, so too is it often the source of significant conflict.  During those unfortunate periods when familial relationships are strained, tempers often flare beyond what might be expected under other circumstances and, regrettably, significant damage – emotional, physical and psychological – is often incurred as a result.  Such incidents are classified under Utah Law with the common designation of domestic violence.

                Because most people are likely to be involved in a domestic relationship at some point in their lives, it is important to be informed about exactly how the law will react to situations of domestic violence.  Specifically, knowing when and why to involve law enforcement, what to expect from law enforcement, and finally, what can be legally achieved towards reversing unintended consequences.

INVOLVING LAW ENFORCEMENT

              There is no question that instances of domestic violence can escalate to extremely dangerous levels: according to a report by the Utah Bureau of Criminal Identification to the Utah Legislature in 2013, 35 out of a total of 41 incidents of murder/manslaughter were associated with domestic violence – an astonishing 85% of the crime-related deaths for that year.  As alarming as this number might be, in fact only a fraction of domestic violence incidents escalate to murder/homicide.  According to the same report, domestic violence incidents involving death constituted only .05% of the 68,261 domestic violence injuries reported.   Since it can be reasonably inferred that very, very few domestic disputes escalate to a life-threatening level, then, the question remains: when should the police become involved?

                To be frank, such a judgement can only be made by whoever happens to be considering involving law enforcement at the time.  Certainly, anyone who might feel that their life is being threatened or are otherwise at risk of physical harm should contact the authorities; by that same token, anyone who is considering involving the authorities should be aware of the consequences such involvement is likely to bring about.  Involving law enforcement – even in relatively trivial disputes – can sometimes have serious long-term consequences for any domestic relationship, as examined below.

WHAT TO EXPECT FROM LAW ENFORCEMENT

                Above all, it should be understood that involving law enforcement in domestic disputes usually means forfeiting control over the situation to the city/state on a long-term basis.  From the moment a call to 911 is made, there is rarely any going back: even victims are often surprised at how little influence they might have over the developments of a domestic violence case.  Police officers issue citations and file charges, the prosecuting agency evaluates and pursues those charges, and the court renders judgement.  To better understand these developments, each is briefly examined here.

               The Citation

               The first and most obvious consequence of involving the law in a domestic disturbance is the immediate intervention by police officers.  Depending on the severity of the threat as presented by the 911 call, police will initiate their contact with varying degrees of force.  In most cases, they will start by separating the disputing individuals as quickly as possible, after which they will conduct a cursory investigation into the circumstances surrounding the dispute.  Statements will be taken from all parties involved and, once the officers have identified the individual they believe was the instigator of the situation, citations will be issued and charges filed.  These charges can vary widely, but are in any case tagged with an indicator of a situation involving domestic violence.  Finally, police will usually see to it that the disputing parties remain separated long enough for a court to issue a temporary protective order – commonly referred to as a restraining order – intended to keep the parties separated until a court determines otherwise; in many cases, this can involve spending time in jail.

               The Prosecution

               Once the police issue citations and file reports, the local prosecuting agency takes over.  After evaluating the details of the dispute (as provided by the police), the prosecuting agency determines whether or not to pursue the matter further.  It is worth emphasizing that this decision – as with most decisions made in furthering the prosecution –can be made independently of the victim and/or 911 caller.  Even if the victim does not want to “press charges,” under Utah Law the prosecution is under no obligation to adhere to the victim’s wishes: the victim is considered a witness in the case, not a party to it. 

               The Judgement

               Depending on the severity of the case and the strength of the defense, a judgement against a defendant convicted of a crime related to domestic violence can land them with anything from counseling classes to fines, and even jail/prison time.  In many cases, the court issues long term protective orders – often lasting for a year or more – which usually prohibit the convicted individual from contacting the victim (though this order does not always mean the victim cannot contact the defendant).  Perhaps more significantly, convictions of domestic violence-related crimes remain on the record of the defendant as an enhanceable offense for up to 10 years (repeat offenders within that timeframe face increasingly severe charges), and are often very difficult to expunge.

               As with the decision to prosecute a case, it is worth noting that a victim does not have the right to force a court to terminate a protective order or to lighten a sentence.  While an appeal to the court can be made through various channels, the court is under no obligation to abide by the wishes of a victim in a case of domestic violence.  That said, a court certainly may take the disposition of a victim into consideration, if the judge feels so inclined.

 REVERSING THE CONSEQUENCES

                Most defense attorneys have been approached by victims of domestic violence who are looking for a means to have charges against their assailant dismissed, judgements overturned and protective orders rescinded.  Though such de-escalations are common enough – perhaps even inevitable, given the perspective often provided by time – the law is frequently hesitant or unwilling to allow such individuals to resume their lives as before.  This comes as no great surprise, given the high percentage of deaths involving domestic violence cases mentioned earlier.  Nevertheless, there are steps that can be taken – both inside and outside of the courtroom – to resolve a case of domestic violence.

                The Protective Order

               A temporary protective order issued by the court is often the most immediate consequence of a case of domestic violence.  Cohabitants are no longer permitted to live in the same residence, and consequently, at least one additional residence must be secured, often at significant financial cost.  Fortunately, following the issuance of such an order, the courts are required to hold a hearing to determine whether or not the temporary protective order is to remain in effect on a long-term basis.  This represents the first opportunity for both defendant and victim to address the protective order in court: a persuasive argument to a judge might convince them that the protective order is no longer necessary.

               Even in cases where both defendant and victim want the protective order struck, judges may be inclined to err on the side of caution and leave the order in place, at least until the resolution of the criminal charges against the defendant.  If and when this occurs, a successful defense in the criminal case is crucial to avoiding a long-term protective order.

                The Criminal Charges

               Regardless of the status of a protective order in a case of domestic violence, the criminal charges are often the most problematic to resolve.  The consequences of a conviction can be as varied as the charges themselves, and might entail anything from expensive counseling classes to fines or jail time.  As already mentioned, in cases of domestic violence long-term protective orders – some lasting for years – are also a distinct possibility of a conviction.

               Like most criminal cases, it is important to ensure that the defense is as strong as possible, normally by retaining a very experienced criminal defense attorney who is both familiar with cases of domestic violence as well as the prosecuting agency and court.  Apart from the obvious self-aggrandizement of this suggestion (this article is being published by a criminal defense law firm, after all), an experienced attorney really can get effective results, whether by negotiating a deal with a prosecutor or convincing a judge or jury to dismiss a case.  Charges can be amended not to include an indicator of domestic violence, protective orders can be struck, jail time averted and fines reduced, among other things.

                In the end, the odds of a successful defense in any criminal case depend on the exact and unique details of each situation.  With the severity of the consequences each party might face in such cases, it is worth expending every effort to ensure that a court is presented with an accurate and unbiased representation of the facts.

                 Early Termination

               Failing the successful defense of a criminal case and/or an appeal to dismiss a protective order, an avenue to terminate both a protective order and a criminal sentence early is available.  A victim can submit a petition to the court to have a protective order terminated early, while a defendant can move the court to terminate their probation early – usually after completion of the majority of the terms of their sentence.  Both endeavors will be significantly benefited by the assistance of a criminal defense attorney, particularly if a court requests a hearing to address them.

                Domestic disputes are a tragic if unavoidable consequence of interpersonal relationships: the plurality of perspectives and interests seems inherently prone toward periodic conflict.  While every dispute might not escalate to the point where law enforcement needs to become involved, allowing disinterested third parties to intervene can sometimes be the best course of action.  Be they police officers, attorneys, judges or juries, cooler heads, as the old idiom goes, often prevail.

Photo Courtesy of: Stuart Miles@freedigitalphotos.net

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