Domestic battery, which is usually charged as ordinary assault, is the most common domestic violence case in Cobb County. This offense has serious consequences in criminal, family, and often civil courts. Non-assault domestic violence cases often have lesser collateral consequences, but they’re nevertheless serious.
First, a bit of background. In Georgia, family violence is any felony or “battery, simple battery, simple assault, assault, stalking, criminal damage to property, unlawful restraint, or criminal trespass” which occurs between “past or present spouses, persons who are parents of the same child, parents and children, stepparents and stepchildren, foster parents and foster children, or other persons living or formerly living in the same household.”
In most large counties, including Cobb County, a FV designation sends criminal cases to special courts. This designation usually includes additional civil consequences as well, such as a restraining order. Given the broad definition of family violence in Section 19-13-1, an attorney cannot do much about the designation. However, a Marietta criminal defense lawyer can chip away at the state’s evidence and successfully resolve non-assault FV cases.
Stalking
Section 16-5-90 may be one of the most difficult non-assault family violence cases to prove in criminal court. The offense has basically three elements:
- Prohibited Conduct: This element is relatively straightforward. The prohibited conduct in the statute is following, watching, or contacting a person on the FV list without that person’s consent.
- Pattern of Conduct: The second element is much harder to prove, mostly because the statute doesn’t define how many incidents establish a pattern. James Bond author Ian Fleming wrote that once is happenstance, twice is coincidence, and thrice is enemy action. That’s a pretty good rule of thumb.
- Mens Rea: Now comes the really hard part. The pattern of prohibited conduct must be made “for the purpose of harassing and intimidating the other person.” Plus, the state must establish both harassing and intimidating, not either/or. Additionally, the state must establish mens rea (criminal state of mind) beyond any reasonable doubt.
Partially because the offense is so hard to prove, many law enforcement officers don’t spring into action when they receive stalking calls. Additionally, they know these investigations are very time-consuming. By the time they arrive on scene, the alleged stalkers are usually long gone. So, they must track them down and listen to a considerable amount of he said, she said back and forth.
In the unlikely event an ordinary stalking case goes to court, since intent is so difficult to prove, a Marietta criminal defense lawyer often gets the charges reduced to reckless conduct. This offense, which is also a misdemeanor, doesn’t carry the FV tag.
Things are a lot different if the defendant stalks an alleged victim in violation of a restraining order. Aggravated stalking is a felony. That’s bad news. The only saving grace is that the same mens rea requirement in Section 16-5-90 also appears in Section 16-5-91 (aggravated stalking). So, the same very effective defense often applies.
Burglary
Defendants in these situations are by no means out of the woods yet. Because of aggravated stalking’s proof difficulties, prosecutors often charge these defendants with burglary.
Most people believe that burglary involves masked criminals who try to steal diamonds, or other precious items. That’s true in a few cases. Typically, however, burglary is violating a restraining order on steroids, at least in many cases. Quite simply, burglary is entering or remaining at a place with the intent to commit a felony. Note that there’s a very big difference between intending to commit a felony and actually committing one.
Assume Lucy has a restraining order against Bill. He attends Lucy’s church, and every time they make eye contact, he gives her the stink eye.
Alarmingly, Bill could be charged with burglary, and those charges could hold up in court, even if Bill belonged to the church prior to his relationship with Lucy. Prosecutors would argue that he entered a building with the intent to harass and intimidate Lucy.
Violating a Restraining Order
We mentioned that police officers often don’t respond to stalking or other non-violent family violence matters. Violation of a restraining order is significantly different.
Essentially, violating a restraining order is like violating probation. There’s no he said, she said back and forth. If the defendant intentionally (not accidentally) violates a restraining order by engaging in prohibited conduct, such as being in a prohibited place, the defendant goes to jail. End of story.
Let’s go back to Bill and Lucy. No one “accidentally” goes to church. So, regardless of his intent, if Lucy had a restraining order that included a keep-away order or listed prohibited places, Bill violated the restraining order.
Because they’re so straightforward, these cases are difficult to resolve. Usually, a Marietta criminal defense lawyer prepares a defense in advance at the restraining order hearing, where it really is her word against his, or vice versa.
Firearms Possession
Many people don’t think about this one. Most restraining orders bar firearms ownership. So, if the defendant possesses a firearm, even if it’s licensed and legal, the defendant could face serious charges.
Firearms possession restraining orders vary significantly in terms of duration, depending on the situation, but they often last for the length of the original restraining order or even longer.
A longer possession prohibition, which a judge usually imposes because the defendant has made violent threats, could also go the extra mile. The person affected by the order may be required to turn in firearms to law enforcement or another authorized party. The order may also prohibit them from purchasing or obtaining new firearms.
In criminal court, prosecutors must establish three elements in a possession case (close proximity, exclusive control, and actual knowledge). The fact that these cases have so many moving parts often enables a Marietta criminal defense lawyer to successfully resolve them.
Family violence cases go beyond domestic battery. For a free consultation with an experienced Marietta criminal defense lawyer, contact The Phillips Law Firm, LLC. We routinely handle matters in Cobb County and nearby jurisdictions.
