What is Domestic Assault in Virginia?
The Virginia Code section on Domestic Assault, 18.2-57.2, states:
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.
Domestic Assault is generally a Class 1 Misdemeanor which is punishable by up to One Year incarceration, and up to a $2,500 fine. Though only a misdemeanor, this charge will also result in the loss of firearm rights which cannot be restored. If you have two prior convictions of Domestic Assault or related offenses, a third charge will be a Class 6 Felony, punishable by up to Five Years incarceration and up to a $2,500 fine.
The types of individuals and relationships covered by this statute are as follows:
“Family or household member” means (i) the person’s spouse, whether or not he or she resides in the same home with the person, (ii) the person’s former spouse, whether or not he or she resides in the same home with the person, (iii) the person’s parents, stepparents, children, stepchildren, brothers, sisters, half-brothers, half-sisters, grandparents and grandchildren, regardless of whether such persons reside in the same home with the person, (iv) the person’s mother-in-law, father-in-law, sons-in-law, daughters-in-law, brothers-in-law and sisters-in-law who reside in the same home with the person, (v) any individual who has a child in common with the person, whether or not the person and that individual have been married or have resided together at any time, or (vi) any individual who cohabits or who, within the previous 12 months, cohabited with the person, and any children of either of them then residing in the same home with the person.Va Code 16.1-228
So this includes spouses, ex-spouses, step-parents, half-siblings, in-laws, co-parents (even if you were never married or lived together), and anyone who you lived with in the past year.
What is the Domestic Assault Process in Virginia?
Domestic Assault and Battery is a specific criminal charge, which has its own particular process that is somewhat different from other assault charges. First, Domestic Assault and Battery cases are tried in the Juvenile and Domestic Relations Court, as opposed to the General District Court. Also, when you are charged with Domestic Assault and Battery, an Emergency Protective Order (EPO) will be issued for 72 hours against you for the alleged victim, who can choose to pursue the separate process to extend that protective order.
In Domestic Assault cases, it is common that the underlying circumstances involved a mutual dispute, and after cooling off, the alleged victim does not want to go forward with prosecution. However, they will not be able to simply “drop the charges” at their discretion. This charge is prosecuted by the Commonwealth’s Attorney who determines how they will pursue your case. Even if you think the alleged victim does not want to testify, it is important to hire a lawyer familiar with these issues to protect your interests.