Domestic Violence Law Part One

Criminal charges as a result of domestic violence are an ever increasing phenomenon in courtrooms across the United States. In North Carolina, these charges are defined as any assault, violation of a restraining order, trespass on property, damage to property, or unwanted communication occurring between two people who have at some time been in a romantic relationship. This can include acts between current spouses, domestic partners, current and former love interests and divorced parties. In North Carolina, prosecutors across the State have focused on these crimes by creating special courtrooms with specially trained assistant district attorneys, victim witness advocates, and judges who focus solely on these crimes. Police departments have also developed specially trained officers to deal with domestic disputes arising in this area.

In order to better understand this area of criminal law and utilizing my experience as a Raleigh Domestic Violence Lawyer, I want to focus on three key stages of the criminal process: Part One will cover the police investigation of domestic violence; Part Two the prosecution of these cases once they reach the courtroom; and Part Three, options if you are a criminal defendant facing a domestic violence charge.


Initial Investigation and the Police “Mindset”

When police are called to a residence as a result of an assault or restraining order violation, they are trained to be cautious of the dangers that potentially await them. Fights and disagreements between individuals who are romantically involved can quickly escalate into volatile situations, especially when one are both parties are under the influence of an impairing substance. Depending on the call received, the police can and will enter a residence under their powers of exigent circumstance to secure any weapons on the scene and immediately separate the parties involved if both are still in the residence. Typically one officer will interview the alleged victim while another officer interviews the alleged perpetrator. The decision to determine who has been the aggressor, or the party more at fault, will depend on visible injuries, the statements of the parties, who made the 911 call, whether one of the individuals is impaired by alcohol or drugs, and whether a party to the assault has already left the scene. The police will take statements, photograph injuries, and make an assessment of what charges should be filed.

Once one or both parties to the assault are arrested, typically they are transported to the jail where a magistrate will place a monetary bond on their release and set a condition that the defendant has no contact with the alleged victim in the case. Under North Carolina law, these release conditions must be reviewed by a District Court judge within 48 hours of the arrest. If both parties to the assault live under the same roof, the no contact order means that the defendant in the case cannot return home, or have any contact with the alleged victim, until the case is resolved.

The Violent Assault Versus the Bedroom Pillow Fight: What happened to police exercising discretion before deciding to arrest?

As a former assistant district attorney and a practicing Raleigh Domestic Violence Lawyer, I can attest to the fact that there are a number of repeat domestic violence offenders who are in and out of our jails and courtrooms. There will always be a certain element of society, either by the nature of their upbringing, mental health problems, or continuing substance abuse, who use physical and verbal violence towards loved ones as a form of power. The laws are designed to protect against, and hopefully rehabilitate, these defendants.

Unfortunately, our police departments, far too often, use the power to arrest as a way of diffusing the most minor of disagreements. An arrest is often the easy way out for an officer faced with a he said, she said situation. I have seen charges, and sometimes arrests, result from all of the following fact patterns: the bedroom pillow fight between spouses married over ten years because of financial difficulties; a slap to the face between high school sweethearts over possible infidelity learned about on Facebook; and a small bruise on the arm of a woman who was attempting to restrain her husband from going on a morning jog because they hadn’t finished arguing about who would pick up their child from daycare. Somewhere along the way the exercise of discretion on the part of police has been lost, and handcuffs have become the answer. If you are involved in a dispute with a present or former romantic partner, you need to be aware of this troubling phenomenon.

Gender Bias, Cultural Conditioning and the Police

It is a proven fact that men account for a high majority of all domestic violence related crimes. It is unfortunate, however, that men who are the victims of abusive female partners or who are placed in situations where self-defense has to be used, often do not get a fair shake in a Domestic Violence courtroom.

Under the laws of North Carolina, an assault of a female by a man over 18 years old carries more jail time and is a higher class misdemeanor than a woman who assaults a man under similar situations. Whether this is a remnant of the days of chivalry, or simply our legislature’s belief that men are generally bigger, stronger, and more able to inflict greater injury on a woman than vice-versa, it is the law in our state.

If you are man in a domestic violence situation with a female partner, it probably does not come as news to you that many police officers are going to assume that you are the at-fault party. You may well face an uphill battle in court trying to prove your innocence, or that you acted in self-defense. I have had male clients who called 911 about an assault at the hands of their wife or girlfriend and who suffered serious injuries that required hospitalization. These same men, who attempted to prevent injuries in self-defense, ended up in jail with more serious charges than their female instigators. The moral of this story is that a man in North Carolina, no matter how much he is provoked or attempting to prevent further injury, should never come into offensive physical contact with a woman under any circumstances. It is much better to leave the house than to try and bear hug, restrain, or pin the arms of a woman who is trying to hurt you.

In Part Two, we will discuss what to expect from Prosecutors in the Domestic Violence Courtroom.