A former football icon is expected to easily win the Republican Party’s nomination for the U.S. Senate seat currently held by Democrat Raphael Warnock. But the fall campaign of Herschel Walker may be hampered by prior domestic violence issues.
In his younger days, the former Georgia Bulldog standout violently abused women on several occasions, behavior he blames on a medical condition called dissociative identity disorder, which is similar to multiple personality disorder. In a 2008 book and subsequent Nightline interview, Walker went public with his struggles, and he says he has moved past them. However, for some critics, that’s not enough. For example, Walker has yet to address allegations that he stalked a former Dallas Cowboys cheerleader and that he held a gun to his ex-wife’s head, they claim.
During the aforementioned ABC News segment, Walker said he didn’t remember the gun-pointing incident. “He may not,” his ex-wife replied. “But I certainly do.”
Elements of Key Domestic Violence Crimes
Walker’s description of events suggests that, in the past, he might have been charged with stalking and/or false imprisonment, two very common domestic violence crimes in Georgia. A third, domestic battery, is even more common.
In many states, stalking is essentially following a person and threatening that person. But in the Peachtree State, stalking is basically following and menacing. Section 16-5-90, the stalking law, clearly states that “This Code section shall not be construed to require that an overt threat of death or bodily injury has been made.”
Georgia’s law has a lower intent requirement, but there’s still a mental state. In fact, Section 16-5-90 has a dual intent requirement. Prosecutors must establish that the following took place “without the consent of the other person [and] for the purpose of harassing and intimidating the other person.”
The offense is easier to prove if there’s an extended pattern of conduct. In the words of James Bond author Ian Fleming, once is happenstance, twice is coincidence, and thrice is enemy action.
Personal stalking and surveillance cases make up most of these prosecutions. However, our office is seeing more virtual stalking cases. Apple and other tech companies market Air Tags, those cheap portable GPS locators, as a way to keep up with your keys. However, unscrupulous people can easily plant them in their wives’ vehicles to make sure they aren’t cheating.
Stalking, like other domestic violence crimes, has significant collateral consequences. Typically, judges require defendants to undergo pre-sentencing psychological evaluations. The final sentence often includes a permanent restraining order. Violation of a restraining order is a separate offense that, in many cases, law enforcement agencies take more seriously than stalking.
This crime is not just a wrongful arrest. It’s much more broadly defined. According to Section 16-5-41, “A person commits the offense of false imprisonment when, in violation of the personal liberty of another, he arrests, confines, or detains such person without legal authority.” In plain English, false imprisonment is an unreasonable restraint of liberty when there is no reasonable way out.
Physical mismatch false imprisonment, like a former football player restraining a former cheerleader, is easier to prove in court. A large person could confine a small person simply by standing near the door. Even if the door is open, the alleged victim might not see a reasonable way out of that situation. This same dynamic often applies, but doesn’t always apply, in domestic abuse false imprisonment cases.
Frequently, Section 16-5-41 is a fallback offense. If emergency responders arrive at a domestic disturbance scene, they’re usually determined to arrest someone. If they cannot confirm any physical violence, they often charge defendants with false imprisonment, which is a much more subjective offense.
For that reason, false imprisonment doesn’t have the same collateral consequences as domestic battery. For example, there’s usually no mandatory hold. Defendants can immediately post bond. However, false imprisonment is always a felony, so it’s usually more serious than domestic battery. Enhancements apply if the alleged false imprisonment victim was under 14.
Continuing the parade of broad domestic violence offenses, Section 16-5-23 is “physical contact of an insulting or provoking nature with the person of another.” The state must also prove the harmful or offensive touch was intentional, which in this case, means non-accidental. Physical injury isn’t technically a requirement, but a physical injury makes the intent element easier to prove.
The other two domestic violence cases in this blog often go to designated domestic violence courts. Domestic battery cases almost always get special treatment, either because they’re in a designated domestic violence court or because they’re charged under a special subsection of the law. Subsection (f) upgrades domestic battery charges from a simple misdemeanor to a high misdemeanor. Interestingly, the protected class in subsection (f) is narrower than the protected class in some other states. But it still includes spouses, ex-spouses, and estranged spouses. Almost all domestic battery cases in Cobb County involve one of these three categories.
Walker is in no danger of going to the stony lonesome over his alleged crimes because the statute of limitations, which is usually two years for a misdemeanor and five years for a felony, passed ages ago. Technically, statute of limitations is an affirmative defense which a Marietta criminal defense lawyer must urge in court. So, it’s not unusual for authorities to file charges after the SOL expires. Investigators can them claim they “did their jobs” but the defendant “got off on a technicality.”
Speaking of affirmative defenses in domestic abuse claims, if the spouses exchanged blows, self-defense could be a defense. Hitting someone is a reasonable response in that situation. However, if the argument was oral and the defendant escalated it, this defense usually doesn’t hold up in court. Emotionally, words hurt as much as fists, or maybe even more. In this legal context, however, words usually aren’t provocative.
Lack of evidence is often the best defenses in these cases. Generally, all domestic violence cases require the alleged victim’s testimony. Frequently, the alleged victim doesn’t want to testify, or the testimony is legally inadmissible for some reason. A few loopholes may be available in these cases, but prosecutors generally can’t move forward with a witness-less domestic violence case.
Domestic abuse offenses are among the most common and most serious infractions in Georgia. 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.