While we don’t like to admit it, there are certain cases where moderate violence is necessary to prevent a greater evil from occurring. While many domestic violence charges are leveled against actual offenders, it is possible for good men and women to be charged with domestic violence despite acting appropriately given the situation.
But that is just one example of how somebody could be wrongfully charged with domestic violence in Virginia, which itself suggests one line of defense. But it is far from the only defense there is against a charge like domestic violence.
To understand more about the defenses to a domestic violence charge, we need to first learn more about the charge itself. We’ll start by examining how Virginia defines domestic violence, then we will move on to the defenses themselves. One important concept to grasp is the idea of an acceptable physical reaction, so we’ll close out by exploring that idea in more detail.
How Is Domestic Violence Defined in Virginia?
Domestic violence is an act of violence that is committed against a family member or other close relation. It does not necessarily mean that the individuals involved in a domestic violence incident reside together or share what we would consider to be a domestic relationship. This may be a component, and often is, but it is not a necessary one.
If a person commits an act of violence against one of the following people then it could result in a domestic violence case (as well as additional charges):
- Any person with whom the defendant has children
- Any person that lived with the defendant within the past year
In many cases, this abuse can occur anywhere and it could be charged as an act of domestic violence. For example, somebody that stuck their child at the park would be flagged as committing domestic violence, despite it occuring outside of the family home.
However, in the case of siblings-in-law, children-in-law, and parents-in-law, domestic violence is only applicable should they share the same residence or had done so within the last 12 months. So if somebody met up at the park for a family reunion and punched a sibling-in-law, this could just be plain assault rather than domestic violence.
What Defenses Are There Against Domestic Violence Charges?
The issue with defending yourself against a domestic violence charge is not that there is a lack of defenses that could be used. Rather, the issue is primarily one of deciding on the best defense given the unique circumstances of the particular acts you are being accused of committing.
In some cases, domestic violence itself may be justified. Just because two people are in a relationship doesn’t mean that things are always going to be smooth and happy. One person may get abusive with the other resulting in the abused party using violence in order to escape from an even more dangerous situation. But despite not being the one who started the violence, they could now face charges for it.
In a situation like this, it would be rather apparent which of the following defenses would be more accurate and thereby most likely to be effective. But, again, the challenge is making sure that the defense selected fits the circumstances, otherwise there will be no contest in the courtroom and a guilty verdict will shortly follow.
Defenses against a domestic violence charge include:
- Alibi: While it makes for a distressing situation, sometimes it is possible to get charged with a violent crime because the individual that did it looked like you but the lighting was too poor to get a real sense of the attacker. The victim believes it was you, but having an alibi can prevent this from going too far. This is especially true if you were anywhere that was recorded, as video footage can serve as the best alibi of all.
- Unlawful Arrest or Search: If the police fail to follow the proper procedure then this could be a defensive strategy you could use. If your rights were violated during your arrest, you were arrested without probable cause, or you or your premises were searched without probable cause then you could argue over the illegality of the arrest or search and try to get it suppressed.
- Consent: This is a tricky defensive strategy and it is most often the wrong one. But depending on the situation, you may be able to argue that the contact was consensual and therefore not domestic violence as legally defined.
- Defending Yourself: There are two different and very specific types of self defense in Virginia – one where you are in some way at fault in bringing about the altercation and one where you did nothing to bring about the altercation. The requirements to defend yourself under either vary, so it is critical you obtain the services of an experienced criminal defense attorney to determine which may apply.
- Defending Property: This defense is possible if somebody tries to break into your house, car, business, or intends to damage some property of yours.
- Defending Others: Same as with defending yourself – in some circumstances you are able to use force to defend another person, especially if they are unable to defend themselves. However, there are exceptions so you must have the assistance of an experienced and knowledgeable criminal defense attorney to decide if this applies.
What Is an Acceptable Physical Reaction?
It is important to keep in mind that even when a physical reaction is acceptable, that physical action still must be within a reasonable or acceptable range. For example, if your spouse pushes you in the chest, you could use your hands to defend yourself, push them away or try to restrain them, but using force beyond that may put your defense in question. If you were to just pull out a gun and shoot your spouse, you most likely would be charged. There are certain situations that allow for a more violent response, but the overall goal of the laws is to use no more force than reasonably necessary, and to reduce violence and remove yourself from the situation rather than making it worse.
If you punch, stab, or otherwise seriously injure somebody in self defense, it can easily be argued that your reaction went beyond what was reasonable and you could be charged. The more violence you use in relation to the violence brought upon you by the other person, the harder it will be to craft a compelling defense.
Should I Work With an Attorney?
While you could try to defend yourself in court, it isn’t recommended. Working with a domestic violence attorney can be your best chance at putting together a solid defense. From investigation to building the defense to arguing it out on your behalf in the courtroom, a domestic violence attorney is an invaluable asset to have on your side.