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Domestic Violence Defense Issues

A wrongful accusation of domestic violence can be one of the most traumatic things a person can face, and domestic violence charges can often be more disruptive than any other kind of charge because of the collateral consequences they usually bring to the defendant’s entire family. No matter how strong or weak the State’s case may be, no matter how serious or less serious the alleged conduct, the court will always issue a no-contact order, even over the objections of the alleged victim. Although such an order is certainly warranted in serious and ongoing instances of domestic violence, the laws are not — and perhaps cannot be — flexible enough to account for the different risk levels and family dynamics of each particular case. To deal with that, domestic violence laws simply use a “one-size-fits-all” approach and assume that everyone will be better off in the long run if the alleged offender is barred for an extended period of time from all communication with his family. This may or may not be true in a particular case.

Meanwhile, the definition of domestic violence crimes in Washington — to which all the same collateral consequences apply — is extremely broad. It extends to conduct well beyond what an ordinary citizen would consider “violence” and to potential victims well beyond a spouse or child. Victims that fall within the parameters of domestic violence include roommates or former roommates, anyone you have ever dated, in-laws, aunts, uncles, and distant cousins. Crimes which can be considered “domestic violence” include such non-violent conduct as malicious mischief (intentional damage to property), burglary, and trespass. So, for example, if you go to your uncle’s house, get drunk and pass out, and he calls the police, you can be convicted of domestic “violence.”

This “one-size-fits-all” approach to no-contact orders can do more harm than good in some cases. Many domestic violence charges stem from alcohol-fueled “mutual combat” scenarios, for example, where the defendant was the one charged but really presents no greater risk to the protected party than the protected party does to the defendant. In other less-serious cases, where physical separation might be warranted, families would be better served if permitted to have contact at least by telephone to coordinate issues involving children and finances. Still other cases involve relatively minor, one-time non-physical incidents that could be controlled by an order prohibiting the defendant from alcohol or some other narrowly-tailored restriction. For many defendants and their families, there is an immediate financial impact unique to domestic violence cases in that they may not return home and are forced to set up a separate residence. In hard economic times, this can tip many families over the line and into poverty. Defendants without the assistance of local family often have no mechanism to permit them to see their children while the case is pending, even where the case had nothing whatsoever to do with any risk to the children.

Moreover, the collateral consequences of domestic violence go far beyond disruptions to the defendant’s immediate family. Legislators at both the state and federal levels have attached all sorts of consequences to people with “domestic violence” convictions, or even domestic violence arrests. Such convictions can bar someone from possessing firearms and therefore ruin a military career. Such convictions can bar a citizen from working in a daycare or obtaining a nursing license in some instances. It can block a person from renting an apartment, affect immigration status, or restrict travel abroad. It can prohibit a family member from providing emergency foster care for a needy relative. For all of these reasons, aggressive defense of domestic violence charges is critical.

One of the most common scenarios to grapple with in DV defense is the recanting victim. Many defendants will call their attorney and insist the State’s case cannot go forward because the victim will now tell police that the previously-alleged assault did not occur or was exaggerated. This is not strictly true. While a recanting victim does complicate the State’s case, public policy concerns have led to a change in thinking — the State will continue to prosecute such cases in an effort to discourage recantations and false reports, and to prevent a defendant from attempting to influence a victim’s testimony. In the prosecutor’s (and many jurors’) mind, the victim told the police the truth at the time of the incident and is only recanting the story to try and un-do the negative effects to the defendant due to his or her close relationship with the defendant. The prosecutor will argue that this is part and parcel of the “cycle of violence” that many DV victims are trapped in, and thus does nothing but corroborate the original allegations. They will often offer expert testimony from a DV “expert” to explain this cycle and bolster their case even in the face of a victim recantation.

The admissibility of such expert testimony can be attacked in various ways by the defense. Of course, to the defendant and defense attorney, the assumption that the victim was more truthful in the initial report is unwarranted. The victim may have been motivated to lie at the time of the incident, out of anger or some other motive, and the recantation reflects the truth after reflection on the lie previously told. Thus, an effective defense requires thorough examination of the various motives at play at various points in the case. Ultimately, the jury will be asked to decide which story was the truthful one, and the defense must provide them with a basis to conclude that the trial testimony is the more-truthful account.

Many courts will not consider a modification of a DV no-contact order until the same is recommended from a state-certified domestic violence treatment provider and supported by the victim. Therefore, if a defendant seeks revision of the no-contact order as soon as possible after arraignment, it is often advisable to get a DV evaluation and begin to comply immediately, regardless of the merits of the underlying case. Many programs will not agree to recommend contact with the victim until a minimum number of sessions have been attended, for example, eight. In this example, this means that two months of treatment would be required before the court would even consider rescinding the no-contact order. This is an issue you should discuss right away with your attorney if you have the misfortune to be charged with domestic violence.

Caleb Morgan