Criminal Defense Lawyer in Virginia Beach

Domestic Assault and Battery

In order for you to be convicted of Domestic Assault and Battery the Commonwealth must prove beyond a reasonable doubt that you and the person you allegedly assaulted are Family or Household Members.

The Domestic Assault and Battery code section § 18.2-57.2 subsection (A) says that Family or Household Member relationship is an element of the offense, and since it is an element of the offense, it must be proved beyond a reasonable doubt. In subsection (D) of the above code section it mentions that the controlling definition of Family or Household Member is defined in the VA Code Section § 16.1-228 and if we look at that definition it says:

“ ‘Family or household member’ means (i) the person's spouse, whether or not such spouse resides in the same home with the person; (ii) the person's former spouse, whether or not such person 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; (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; or (vii) an individual who is a legal custodian of a juvenile.”

So, if you are charged with Domestic Assault and Battery you want to make sure that the Commonwealth Attorney establishes in trial that you and the alleged victim are in fact Family or Household Members as defined above. If the Commonwealth fails to establish that you and the alleged victim are Family or Household Members then you cannot be convicted of Domestic Assault and Battery. When is a scenario where the Commonwealth may fail to prove that you and the alleged victim were Family or Household Members? Well, one scenario could be that you guys are Family or Household members as defined above by the prosecutor simply forgets to get that evidence out in trial (which does happen sometimes) and if that’s the case your lawyer should pounce on that. Another scenario that is very common is where the accused and the alleged victim are in a relationship, but never married, and have no children in common; therefore, falling under the “Cohabitation” element mentioned above. In cases like that, the Commonwealth sometimes fails to establish that the two parties were Cohabitating. In Virginia the Courts look at a 3-pronged test to see whether there was Cohabitation (1) Sharing of familial or financial responsibilities (2) Consortium and (3) Length and Continuity of the Relationship. Therefore, in a case where the accused and the alleged victim were merely dating, that alone would likely not cut it. Moreover, even if they are dating and living together at the time, that too may not cut it if some or all of the above 3 prongs were missing in the relationship. Please note that if your lawyer succeeds in showing that the Commonwealth failed to prove that you and the alleged victim were Family or Household Members you still could be found guilty of Simple Assault and Battery under § 18.2-57 if the Commonwealth proves beyond a reasonable doubt that an assault battery had in fact occurred, and this because a Simple Assault and Battery is considered to be a lesser included offense of Domestic Assault and Battery. In my opinion it is still more favorable to get the conviction switched to a Simple Assault and Battery because it carries much less of a stigma than a Domestic Assault and Battery does. Moreover, if someone is convicted of a Domestic Assault and Battery charge then they are prohibited by Federal Law from ever being able to own or possess a firearm, forever. Lastly, Domestic Assault and Battery convictions are riskier because a 3rd or subsequent Domestic Assault and Battery conviction in Virginia is a Felony, the same is not true for 3rd or subsequent Simple Assault and Battery convictions.