Is Domestic Violence a Big Deal?

It depends on who you ask. Most defendants don’t think domestic violence is a big deal, especially if the alleged victim didn’t have to go to a hospital. Before the pandemic, many prosecutors felt the same way, especially if the two people were involved in a divorce or other civil dispute at the time of the alleged assault.

Coronavirus lockdowns changed a lot of things, including prosecutorial attitudes about domestic violence. During the pandemic, domestic violence increased significantly. As a result, the state’s aggressiveness increased as well. Most domestic battery cases in Cobb County are misdemeanors, which means the prosecutors are normally fresh out of law school. So, these prosecutors weren’t around in the old days. They only know how to aggressively pursue domestic violence cases.

Very few criminal misdemeanors in Georgia have worse direct and indirect consequences that domestic battery. Court supervision in these cases is unusually restrictive, mostly because these cases usually include restraining orders. More on that below. Additionally, many employers and other individuals believe that domestic violence defendants are uncontrollable hotheads.

In this environment, if you face domestic violence charges, you need an aggressive Marietta criminal defense lawyer. A half-hearted defense simply will not do. There is too much at stake. Only an aggressive defense reduces or eliminates the harsh direct and indirect consequences of domestic violence charges.

Jail Release and Protective Orders

Most Georgia law enforcement agencies have mandatory domestic violence arrest policies. After officers respond to a domestic disturbance call, they conduct impromptu investigations to determine the aggressor. The alleged aggressor is almost always the man. The alleged aggressor must go to jail at once, and usually spend at least twenty-four hours behind bars.

Unfortunately for defendants, jail release is far from mandatory. The days of Otis the town drunk sleeping it off and then going home are long gone. Nevertheless, several jail release options are available, even in domestic assault cases. They include:

• Own Recognizance: OR release, which is pretty close to sleeping it off and going home, is usually unavailable in violent criminal matters. However, it may be available in other kinds of domestic abuse cases, like stalking.
• Cash Bond: Review boards usually decide who’s eligible for pretrial release. Cash bond is immediately available, at least in most cases. Like the other kinds of jail release, cash bond in domestic violence matters usually comes with additional conditions, like a keep-away order.
• Bail Bond: Most bonding companies charge a 10 or 15 percent premium to issue bail bonds. The premium is nonrefundable, but it’s a lot lower than the full cash amount. That affordability makes a bail bond the most common jail release option in Cobb County. A Marietta criminal defense lawyer can often lower the amount even further at a bail modification hearing.

Most law enforcement agencies also have mandatory protective order notification policies. Arresting officers must tell alleged victims about their right to file a protective order and briefly explain the system to them.

Unless there’s a parallel proceeding in family court, most Cobb County judges routinely issue ex parte protective orders. These orders are usually good for two weeks. After a full hearing, a judge could issue a longer-lasting protective order. But that’s far from certain, since a Marietta criminal defense attorney can appear at this hearing and advocate on behalf of the defendant.

Speaking of attorney advocacy, a judge may issue a civil protective order. These orders have essentially the same provisions as a domestic violence protective order, but they don’t have the dreaded “domestic violence” label. Attorneys often negotiate with prosecutors and obtain such resolutions.

Nuts and Bolts of a Domestic Battery Case

When these cases go to criminal court, prosecutors must establish a protected relationship and prohibited conduct.

The first element is often straightforward. Almost all domestic violence incidents are between current or former spouses. Things get really muddy after that.

DV enhancements also apply if the defendant and alleged victim had a child together. Children born to married women are presumptively children born in that marriage. This presumption doesn’t apply to non-married dating partners.

These enhancements also apply to current or former dating partners. The law doesn’t clearly define “darting partners.” This designation almost certainly means more than one one-on-one date, but beyond that, no one is sure.

Incidentally, when we say “enhancement,” we aren’t talking about a penalty enhancement. Instead, DV assault cases usually go to designated DV courts. These judges often hand out harsh sentences for political purposes. Furthermore, to many people, domestic violence often means “wife beater,” as mentioned above. Simple assault often means an argument that got out of control.

Establishing prohibited conduct in criminal court is a lot harder than establishing a protected relationship.

Police officers, who are essentially professional witnesses, usually can’t testify about the alleged assault. They didn’t see it. Therefore, the alleged victim, who is a non-professional witness, must provide that testimony.

Basically, the alleged victim must testify that the defendant intentionally injured the alleged victim. The more serious the injury, the easier it is to prove intent. Sometimes, alleged victims really do fall down the stairs or bump into walls.

Witness credibility may be an issue as well. Our minds aren’t iPhone cameras. We remember things selectively, especially during a passionate encounter like a semi-violent domestic dispute. Additionally, an alleged victim’s trial testimony is often slightly inconsistent testimony with pretrial testimony. The slightest inconsistency erodes the alleged victim’s credibility. Finally, many alleged victims cry wolf. Previous reports make it more unlikely that the current report is 100 percent accurate.

These defenses may not be enough to convince a judge to throw a case out of court. But they often are enough to obtain a more favorable plea bargain agreement. In the politically charged world of domestic violence cases, that’s usually the best possible outcome.

No matter who you ask, domestic violence is a big deal. For a free consultation with an experienced Marietta criminal law attorney, contact The Phillips Law Firm, LLC. Virtual, home, and jail visits are available.