The crime of domestic violence is a very serious offense with tough penalties in the State of Michigan. The classic scenario most people envision is an angry or drunk husband violently striking his wife, but the applications of this offense are actually much broader in many surprising ways.
An individual is guilty of domestic violence contrary to MCL 750.81(2) if the prosecutor can prove all of the following elements beyond a reasonable doubt:
- First, that the individual committed an assault or an assault and battery.
- A battery is the forceful, violent or offensive touching of a person or something closely connected to him or her. The touching must have been intended, was not accidental, and against the other person’s will. An injury is not required for any nonconsensual touching is enough.
- An assault is an act that would cause a reasonable person to fear or apprehend an immediate battery. The individual must either have intended to commit a battery or cause the other person to reasonably fear an immediate battery. It must be intentional, not accidental.
- Second, the victim was one or more of the following:
- The individual’s spouse
- The individual’s former spouse
- Had a child in common with the individual
- Was a resident or former resident of the same household as the individual
- Was a person whom the individual had or previously had a “dating relationship” (defined as “frequent, intimate associations primarily characterized by the expectation of affectional involvement” and “does not include a casual relationship or an ordinary fraternization between two individuals in a business or social context”).
A domestic assault does not just encompass a physical touch but also threatening acts such as raising a hand in a manner to suggest to the victim that he or she will be imminently hit. A “resident or former resident of the same household” can encompass a parent, child, sibling or even an apartment roommate, even if the perpetrator and victim are the same gender and not in a romantic relationship.
A conviction of domestic assault carries the following penalties:
- If this is a first offense, the individual is guilty of a misdemeanor punishable by imprisonment up to 93 days in jail or a fine up to $500.00, or both.
- If this is a second offense (there is at least one prior conviction of domestic assault), then the individual is guilty of a misdemeanor punishable by imprisonment up to one year in jail or a fine up to $1,000.00, or both.
- If this is a third or subsequent offense (there is at least two prior convictions of domestic assault), then the individual is guilty of a felony punishable by imprisonment up to five years in state prison or a fine up to $5,000.00, or both.
Additionally, an individual may be convicted of AGGRAVATED domestic assault, contrary to MCL 750.81a(2), where the prosecutor proves all of the elements for domestic assault beyond a reasonable doubt PLUS proves the individual “inflicts serious or aggravated injury upon that individual without intending to commit murder or to inflict great bodily harm less than murder” beyond a reasonable doubt. A conviction of aggravated domestic violence carries the following penalties:
- If this is a first offense, the individual is guilty of a misdemeanor punishable by imprisonment up to one year in jail or a fine up to $1,000.00, or both.
- If this a second or subsequent offense (there is at least one prior conviction of domestic assault), then the individual is guilty of a felony punishable by imprisonment up to five years in state prison or a fine up to $5,000.00, or both.
Due to the seriousness of the crime, domestic assault and aggravated domestic assault have some unexpected collateral consequences upon conviction. This type of offense can severely restrict your ability to own or possess a firearm and could have immigration consequences for non-citizens (there is a risk for deportation even if the end result is a misdemeanor). Additionally, domestic assault convictions can impact employment prospects, security clearances, and scholarship eligibility.
When facing a prosecution for domestic assault or aggravated domestic assault, the defendant is playing against a stacked deck. According to MCL 768.27b, the prosecutor may introduce evidence of the defendant’s commission of other acts of domestic violence for any purpose that it is relevant provided that the other act is not more than 10 years old. This is a powerful advantage in that the prosecutor is generally prohibited from using prior convictions or bad acts in other criminal prosecutions for the purpose of showing the defendant acting in conformity, but not so in domestic violence cases.
Additionally, MCL 768.27c permits the prosecutor to admit statements made by alleged domestic violence victims even if that person does not appear at trial. Ordinarily, these statements would be illegal and inadmissible as hearsay in prosecutions for other crimes, but not for domestic assault. The statement is admissible if all of the following are true:
- “[t]he statement purports to narrate, describe, or explain the infliction or threat of physical injury upon the declarant;
- [t]he action in which the evidence is offered under this section is an offense involving domestic violence;
- [t]he statement was made at or near the time of the infliction or threat of physical injury;
- [t]he statement was made under circumstances that would indicate the statement’s trustworthiness; and
- [t]he statement was made to a law enforcement officer.”
Fortunately, first-time offenders of domestic assault may be eligible for a diversion program under MCL 769.4a. If both the victim and the prosecuting attorney agree, the defendant can enter a guilty plea to the court (NOT no contest pleas) and the court will withhold entering a judgment of guilt. At sentencing, the proceedings are deferred and the defendant is placed on probation with conditions that may include anger management, family counseling, random drug/alcohol testing and a substance abuse program. Upon successful completion of probation, the case is dismissed. If probation is violated or not completed, the court will enter an adjudication of guilt and sentence the defendant to fines, jail or additional probation. This diversion program is only available once to a defendant.
In addition to the diversion program, there are several potential ways to defend against a domestic assault or aggravate domestic assault charge:
- False accusations of domestic violence are not uncommon. A spouse or ex-spouse may attempt to use a domestic assault charge to gain an advantage in a divorce or child custody matter and such biases should be properly exposed.
- Self-defense or defense of others is an affirmative defense to domestic assault accusations. The defendant could show that he or she was not the initial aggressor and show he or she acted in response to violence or an imminent threat of violence.
- Very frequently, domestic assault boils down to a “he said, she said” situation where the only two eyewitnesses at the trial are the defendant and the alleged victim. Credibility is key and the defendant could establish reasonable doubt to secure an acquittal by showing a lack of injuries and even a lack of motive.
Domestic violence charges should be treated seriously and aggressively because the long-term consequences of conviction can follow you for years to come. If you or a loved one are facing domestic assault charges or any other criminal charges, do not hesitate to contact the skilled criminal defense attorneys at Kershaw, Vititoe & Jedinak PLC.