CHAPTER I DEFENDING DOMESTIC VIOLENCE OFFENSES

Chapter I: Defending Domestic Violence Offenses CHAPTER I DEFENDING DOMESTIC VIOLENCE OFFENSES I. DOMESTIC VIOLENCE DEFINITIONS In order to be successful defending clients charged with domestic violence offenses, you must first have an understanding of how domestic violence offenses are defined by statute and common law. There are a number of offenses in North Carolina that fall under the category of domestic crimes, many of which are criminal offenses by definition and do not require a specialized relationship between the victim and the defendant, such as Simple Assault and Assault on a Female. Others, such as Domestic Criminal Trespass and Violation of a Domestic Violence Protective Order, require as an element that the parties have a domestic relationship. There are many considerations for defense counsel when representing a client accused of a domestic crime, from the setting of pretrial release conditions to punishments to collateral consequences in immigration and family law. A. Statutory Definitions of Domestic Violence When representing clients charged with crimes of domestic violence (or any crime, for that matter), the first thing you should do is read the statutes! Make sure that all the statutory requirements have been met and that a defendant has been properly charged. This includes both definitions and elements. So, how is domestic violence defined in North Carolina? The answer is like many in the law: it depends on which statute you are referencing. There are also federal statutes that may be applicable to your case or should be considerations when advising your client about how to proceed. 1. Chapter 50B Traditionally, crimes of domestic violence were envisioned as a husband who physically abused his wife. North Carolina has a much more expansive definition of domestic violence, which includes not only assaultive behavior, but also continued harassment. Domestic violence is defined in Chapter 50B as the commission of certain acts against a person ( the victim ) or against a child who is living with or in the custody of the victim, by a person who has or has had a personal relationship with the victim. N.C.G.S. 50B-1. a. Acts Covered under 50B-1(a) (1) attempting to cause or intentionally causing bodily injury; (2) placing the victim, or a member of the victim s family or household in fear of imminent serious bodily injury, or continued harassment, as defined in G.S. 14-277.3A, that rises to such a level as to inflict substantial emotional distress; or North Carolina General Practitioner s Guide to Criminal Law (2016) I-3

(3) committing rape or other sex offenses, defined in G.S. 14-27.2 through -27.7 b. Relationship Qualifications defined as: Domestic violence occurs only where the parties have a personal relationship, (1) current or former spouses; (2) people of the opposite sex who live or have lived together; (3) parent and child or grandparent and grandchild; (4) parents with a child in common; (5) current or former household members; or (6) people of the opposite sex who are or have been in a dating relationship. G.S. 50B-1(b) Defense counsel should note that the definition of personal relationship is not synonymous with a romantic relationship. Current or former household members includes both homosexual partners who live or have lived together and former or current roommates. The definition also includes a minor child who is in the custody of or living with a person with whom the defendant has a personal relationship. Common misdemeanor offenses that constitute domestic violence offenses where the parties have the requisite personal relationship include: Simple Assault Assault on a Female Communicating Threats Domestic Criminal Trespass Stalking Violation of a Domestic Violence Protective Order 2. Criminal Procedure Act Domestic violence crimes have their own specific statute when referring to conditions of bail and pretrial release. A more detailed discussion of pretrial conditions and bond will follow later in this chapter. The important thing to note under G.S. 15A-534.1 is how the personal relationship between the parties is defined. For purposes of setting conditions of pretrial release, the defendant must commit a domestic violence crime against a spouse or former spouse or a person with whom the defendant lives or has lived as if married. G.S. 15A-534.1(a). This is a vastly different definition than that of G.S. 50B-1(b), which is much more expansive in its definition of personal relationship, allowing relief for minor children, grandparents and roommates. I-4 North Carolina Bar Association Foundation Continuing Legal Education

Chapter I: Defending Domestic Violence Offenses Also note that this statutory definition under the bail and pretrial release statute (G.S. 15A-534.1) does not include people of the opposite sex who are or have been solely in a dating relationship; they must cohabitate. This is an extremely important distinction because it may make the difference in your client having bail conditions set immediately by a magistrate or having to wait up to 48 hours to be seen by a judge. Under G.S. 15A-534.1(a), a magistrate cannot set pretrial conditions if the crime is classified as a domestic violence crime for purposes of setting bail, while no such limitation appears in G.S. 15A-534.1. Further, same-sex marriages are now legally recognized in North Carolina, as decided in General Synod of the United Church of Christ v. Resinger, 12 F. Supp. 3d 790 (W.D.N.C. 2014). Although it could be argued prior to this decision that same-sex couples were included under the protection of this statute, it is now without question that this definition includes both heterosexual and homosexual couples. B. Definitions of Domestic Violence under Federal Law Under the Violence Against Women Act (VAWA), the term intimate partner includes a spouse, a former spouse, a past or present cohabitant (as long as the parties cohabitated as spouses) and parents of a child in common. Intimate partner does not include a girlfriend or boyfriend with whom the defendant has not cohabitated, unless protected by state law. In order to prosecute under this statute, there is a requirement that the victim suffers some type of bodily injury. Similarly, the Gun Control Act prohibits a person who has been convicted of a misdemeanor crime of domestic violence from possessing a firearm or ammunition. (See 18 U.S.C. 921(a)(33) (A) for definition of a crime of domestic violence.) The Gun Control Act also defines intimate partner as the spouse of the person, a former spouse of the person, an individual who is a parent of a child of the person and an individual who cohabitates or has cohabited with the person. 18 U.S.C. 921(a)(32). Further discussion of this statute can be found below under the section entitled Collateral Consequences of Crimes of Domestic Violence. A noncitizen opens themselves to possible deportation if convicted of a crime of violence as defined in 18 U.S.C. 16. The statute goes on to define an intimate partner as an individual who: is a current or former spouse of the defendant; has a child in common with the defendant; is cohabiting with the defendant or has cohabited as a spouse; is similarly situated to a spouse of the defendant under the domestic or family violence laws of the jurisdiction where the offense occurs; and/or is protected from the defendant s acts under the domestic or family violence laws of the United States or any state, Indian tribal government, or unit of local government. 8 U.S.C. 1227(a)(2)(E)(i). Note that in each of these federal statutes, there is a requirement of marriage, some type of cohabitation, or, absent either of these, a child in common between the parties. The statutes do North Carolina General Practitioner s Guide to Criminal Law (2016) I-5

not recognize a domestic violence offense within a dating relationship where the parties do not cohabitate. II. DOMESTIC VIOLENCE OFFENSES IN NORTH CAROLINA A. Assault North Carolina has both offenses that are specific to domestic violence and offenses that are considered domestic violence only when committed against an intimate partner. The offense most commonly seen in Criminal Domestic Court is Assault on a Female. Other misdemeanor offenses commonly charged are (1) Violation of a Domestic Violence Protective Order; (2) Interference with Emergency Communications; and (3) Simple Assault. There are also felony offenses such as Assault by Strangulation, followed by more serious assaults and even rape and other sexual offenses. Some larger counties such as Wake and Mecklenburg have specialized domestic violence courts and assistant district attorneys who are dedicated solely to prosecuting domestic violence offenses. Smaller counties may include domestic violence offenses on the docket with all other cases. Depending on the county, all cases, both felonies and misdemeanors, may be handled in one courtroom at the same time, or there may be certain days in a given week where domestic violence offenses are heard. If you are representing a client on a charge in a county where you have never been to court, you should, at a minimum, contact the District Attorney s Office for the county or district to see if there are any specific assistant district attorneys who prosecute those cases, or any specialized policies or procedures that you should be aware of ahead of time. Also, use your resources. You may have colleagues or former classmates who have practiced in a county where you have never been, and they may be able to help you navigate through the systems and policies that are exclusive to a particular place. I have travelled to numerous counties to represent clients in criminal cases and can tell you from experience, every district is different. You must try to know your location, the nuances and your audience as much as possible in order to have the opportunity to effectively represent your client, no matter where you are appearing. 1. Assault on a Female Pursuant to G.S. 14-33(c)(2), the State must prove that the defendant: (1) is a male at least 18 years old, and (2) assaults (3) a woman. Assault on a female is a Class A1 Misdemeanor. Depending on the defendant s prior record level, their sentence can range from 75 to 150 days. I-6 North Carolina Bar Association Foundation Continuing Legal Education

Chapter I: Defending Domestic Violence Offenses a. 18 Years Old A male must be over the age of 18 in order to be convicted of Assault on a Female. If he is not over the age of 18, under the same facts, he will be charged with Simple Assault. There is no age requirement for the victim. State v. Mueller, 184 N.C. App. 553 (2007). Circumstantial evidence may be adequate to establish a defendant s age. State v. Barnes established that a defendant s age may be proved by circumstantial evidence. (324 N.C. 539 (1989)). But, absent direct or circumstantial evidence, a defendant s age cannot be determined by simply observing his appearance in court. In re Jones, 135 N.C. App. 400 (1999), distinguishing State v. Evans, 298 N.C. 263 (1979). Proving the age of the defendant is an element that is crucial to the State s case. If the State fails to ask their witness (usually law enforcement or the victim) the question that establishes the defendant s age, allow them to rest their case and then make a motion to dismiss at the close of the State s evidence. b. Assault Generally, assault is defined as a harmful or offensive bodily contact, or the imminent apprehension of a harmful or offensive bodily contact. It is distinguished more specifically by common law as either: a. An overt act or attempt, or the unequivocal appearance of an attempt, with force and violence, to do some immediate physical injury to the person of another, which show of force or menace of violence is sufficient to put a person of reasonable firmness in fear of immediate physical injury; and b. A show of violence by the defendant accompanied by reasonable apprehension of immediate bodily harm or injury on the part of the person assailed, which causes the person assailed to engage in a course of conduct that he or she would not otherwise have followed. The show of violence rule places the emphasis on the reasonable apprehension of the person assailed. The focus of the first definition of assault above is the intent of the person accused. See State v. McDaniel, 111 N.C. App. 888, 890 (1993). There is also a requirement that a pleading must specifically delineate which type of assault the defendant is alleged to have committed. See State v. Garcia, 146 N.C. App. 745 (2001). Also note that an attempted assault is not defined as a separate crime because the legal definition of assault includes an attempt. State v. Barksdale, 181 N.C. App. 302 (2007). Your fact pattern may include more than one assault occurring in a short time period. In State v. Maddox, the Court of Appeals found that a defendant cannot be convicted of separate assaults unless there is a distinct interruption between them. 159 N.C. App. 127 (2003). This does not include assaults on separate individuals, which are each separate offenses. However, if there are multiple assault charges against the same victim on the same offense date or successive dates (due to time of offense), make sure that there is a distinct interruption between the respective North Carolina General Practitioner s Guide to Criminal Law (2016) I-7

assaults. Despite the case law, law enforcement may charge a defendant with multiple assaults that don t have the requisite distinct interruption. Further, the State may proceed with prosecution on all these separate assaults, which can result in multiple convictions for your client. If you are in trial and this occurs, make a motion to dismiss at the close of the State s evidence for the State failing to carry its burden on multiple assaults, pointing out that the alleged assaults should only be considered as one assault, rather than multiple ones. c. Woman The defendant must assault a woman in order to be charged with Assault on a Female. There is no age requirement for the female victim. Although all citizens are guaranteed equal protection of the law under the 14th Amendment to the United States Constitution, the Court of Appeals has taken into account that males are typically stronger and heavier than females, and that a harsher criminal punishment for a male who assaults a female is not violative of this clause. See State v. Gurganus, 39 N.C. App. 395 (1979). 2. Defenses to Assault a. Self-Defense The most common defense to assault is self-defense. In order to prevail on a self-defense argument, one must use no more force than is reasonably necessary to fend off an attack. There are many considerations to determine the reasonableness of the force used to fend off an attack, including (1) the size of the victim relative to the size of the defendant, and (2) the amount of force used to fend off the attack. For example, with two persons of relatively equal size and strength, it may be unreasonable for a person who has been slapped to defend herself by shooting the defendant. On the other hand, if the defendant is 100 pounds heavier than the victim and has specialized training in martial arts, shooting the defendant may be a perfectly reasonable method of self-defense. The most important thing to remember when arguing self-defense is that, for the jury, it is a question of fact. Every self-defense argument is contingent upon the facts and circumstances of the particular case. Some mode of defense that may be perfectly reasonable in one case may not be in another. The citizens of North Carolina were given more freedom to use defensive force in December 2011. New G.S. 14-51.2, -51.3 and -51.4 address some of the circumstances in which a person may use defensive force. b. Defense of Others or Property G.S. 14-51.2 creates a presumption of fear of serious bodily harm or death in defense of home, workplace and protection of motor vehicles. Under subsection (b) of this statute, a lawful occupant of a home, motor vehicle or workplace is afforded this presumption if one of the following apply: I-8 North Carolina Bar Association Foundation Continuing Legal Education