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What Constitutes Domestic Violence?

Domestic violence cases deal with family and other closely related parties. Georgia’s O.C.G.A. §19-13-1 outlines the parties under the domestic violence act it includes 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: such as boyfriend and girlfriend. Our state differentiates these charges from other violent crimes. Two examples are a conviction for domestic violence battery carries a lifetime ban on lawful ownership of a firearm while a battery charge does not, and a second conviction becomes felony rather than remaining misdemeanor.

Domestic violence has become a focused area of many state advocacy programs. The intention of these programs is to help battered women and broken homes. An admirable intention with substantial collateral damage to a person’s Constitutional rights, our firm sees false accusations on a regular basis. “Throughout history it is the well intentioned zealots that are most willing to impose those ideas upon others.” Lawrence Taylor Just as mothers against drunk driving have caused legislation that is constitutionally questionable so have advocacy programs for battered women. We have seen the marital privilege challenged. We have seen laws attempting to allow hearsay testimony into a case violating the United States Confrontation Clause.

It is this firm’s belief that the noble intentions of the people behind these programs have eroded the common sense of many of our lawmakers. It is easy to say spousal abuse is terrible so let’s pass laws cracking down on the people committing the offenses. The problem is this creates too broad a net and many innocent people are caught in its web. The truth is most domestic disputes have two parties partially at fault in an argument; the argument becomes physical or property is destroyed. When an officer arrives his main duty is to protect all parties. He has not seen or witnessed the dispute. He does not have training in soft tissue injuries, but he knows he will lose his job if something happens to the parties after he leaves. The end result is someone goes to jail. In virtually every case this firm has encountered the man goes to jail, with rare exceptions.

Domestic Violence Battery

Typically a domestic violence battery charge is a he said she said type of scenario. Our firm often sees people using the system to try to gain an advantage in a divorce proceeding or to attempt to control another party.
Under current law a police officer responds to a call. The officer tries to determine who the initial aggressor is in the dispute. The officer then looks for any injury consistent with the alleged victim’s story. Our firm has encountered several cases the last few years in which the accuser has had four or five different individuals arrested for allegations of abuse. Our firm had two cases this summer where the alleged victim was locked up for filing false reports against our clients.

A recent law was just past preventing spouses from exercising their immunity from testifying against one another. The law has only been on the books since the beginning of July, 2012.  House Bill 711 was approved and passed into law. The law allows prosecutors to compel victims in domestic violence cases to testify against their spouses. The law used to allow spouses to refuse to testify against one another in criminal proceedings. However, the new law allows an exception to the privilege when allegations of abuse are brought by the State.
Police officers are forced to make a determination on very limited information. They are not trained in soft tissue injuries, because they respond to so many of these calls they may consider this type of charge a lesser offense. They also know someone needs to go to jail to keep the other parties safe.

Our firm realizes the seriousness of the offense. A person arrested for this crime is given a bond condition that can force him or her out of their residence. If the person is convicted of this charge, he or she losses the right to own a firearm. He or she will have a criminal record for the rest of their life. If it happens again they face a felony. Our firm conducts an extensive background check on the alleged victim. We look to see if the victim has made out cries in the past, or if the alleged victim has a history of violence.

Another problem is once a false accusation results in the accuser’s goals, then they are likely to do it again. If you plead guilty or are found guilty then this will come in as evidence in a subsequent charge. The penalties and jail time get substantially worse for repeat offenders. Our office hears statements like “They offered me probation so I took the deal,” or “I didn’t want to put my girlfriend or kids through the embarrassment of a trial.” Don’t be fooled if someone is willing to lie once they will do it again. Sometimes the lies get worse just like domestic violence over time.

Our firm has encountered cases where a female grabbed a knife or other weapon and the male simply grabbed the arm trying to prevent an attack. When the officer arrived he saw red marks on the arm of the woman and arrested the male. It is important a thorough investigation is used in order to prevent wrongful convictions. In another case our firm encountered a woman on a 911 call as saying “ I know you didn’t hit me but I am going to get your %&*^ locked up anyway.” He was arrested and charged, not until the 911 call was subpoenaed were the charges dropped. We know the stakes and we know how to fight the case.

Cruelty to Children

Georgia’s O.C.G.A. § 16-5-70 governs the state’s cruelty to children statute. Cruelty to children has three different levels of offense. Cruelty to children in the third degree is the most common. It is a misdemeanor and occurs when a child witnesses a battery, domestic violence battery, or a forcible felony. Our firm encounters this frequently in domestic cases. A prosecutor must prove a battery occurred and the perpetrator had knowledge a child was present in order to prove this charge.

One of the key concerns our firm has with the cruelty to children charge is the negative stigma the charge carries with it. Whenever kids are involved a judge, jury, and prosecutor are more concerned. The charge itself brings chills to many people during the reading of the accusation or indictment. Prosecutors love to bring this charge whenever it is available, because they know it increases the likeliness of a conviction for their battery charge.
Our strategy in many cases is to take the emotion out of the case or to turn the tables on the prosecution by displaying their attempt at manipulating juries with the emotion of having kids involved when it is simply not necessary. People don’t like their emotions to be manipulated and when the State brings kids into the mix when they could leave them out of it then jurors and judges can feel manipulated.

This is also used to intimidate Defendants. Instead of facing one count of domestic violence and a maximum sentence of 1-year incarceration, a person faces multiple years depending on the number of kids in the household.

Cruelty to children in the first or second degrees is a felony charge. They require a parent, guardian, or supervisor to place the child’s wellbeing in jeopardy by denying that child the necessary sustenance or by causing the child excessive physical or mental pain. If one of these is done on purpose then the person is facing first degree charges if one is done by negligence the person faces a second degree charge. A first degree charge requires a 5 to 20 year sentence. A second degree charge requires 1 to 10 years.
These are extremely serious charges that often involve more than the police and District Attorney’s Office.  Defax and parental rights are often an issue in these types of cases.

Restraining Orders

Restraining orders are a quasi-criminal matter. They do not require the level of proof criminal charges require, but the issuance of a restraining order can have serious consequences. A party must show by a preponderance of the evidence that he or she is in fear of bodily harm from another party. It is common for people to seek an order when they are in a divorce proceeding in an attempt to control the other party. If an order is granted it means the losing party will often have to find a new place to live, but most importantly it exposes the individual to the potential aggravated stalking charge. If a protective order is in place, and the protected party claims she has been contacted and harassed or threatened then a warrant can issue for aggravated stalking.

Unlike most criminal charges only a Superior Court Judge can issue a bond for the charge of aggravated stalking. Most bonds are set at the magistrate level. A person is brought before a judge within 72 hours and a bond is set. However, the charge of aggravated stalking cannot receive a bond at this level. The accused will sit without bond until he or she appears before a Superior Court Judge. This can be several days and can cause a person to lose his or her job.

Judges often find themselves in tough situations on restraining orders. If they do not grant the order and a violent attack occurs then they can find themselves answering questions from reporters and their job could be in jeopardy. If they grant the order the severe consequences the Respondent receives can cost him or her their home. Judges typically err on the side of caution and grant the orders on close call cases.
Many restraining orders are filed and argued pro se. This means the person seeking the order acts as their own lawyer. They usually are not well versed in evidentiary issues and a represented party whose lawyer makes the proper objections can keep out important pieces of evidence or expose weaknesses in the Petitioner’s case.
Feel free to contact our firm if a restraining order is sought against you or if you wish to obtain one against another party.

Stalking and Aggravated Stalking

Stalking occurs when a person follows, places under surveillance, or contacts another person at or about a place or places without their consent for the purpose of harassing or intimidating that individual.

“Harassing and intimidating” means (1) a knowing and willful course of conduct directed at a specific person; (2) which causes emotional distress by placing such person in fear for their safety.

Important: Case law has determined that one act is not enough. It must be a pattern of behavior and it must not serve a legitimate purpose.

This offense is a misdemeanor. It is rarely brought and difficult to prove. This firm has only encountered this charge on a few occasions. The act usually requires other criminal activity that is easier to prove such as criminal trespass or harassing phone calls.

Aggravated staking is a much more common charge. It is serious and carries a 1-10 year sentence. This occurs when a restraining order or bond condition has been issued against a party. The victim or person protected by the order then claims or is harassed by the Defendant. Any violent threat or harassing conduct will result in the charge being brought. No corroboration is needed. That means a person can simply contact the police and claim someone contacted them and threatened them. It becomes the Defendant’s job to prove this false.

If you are facing this charge you need to seek the advice of an attorney. Please call our office for a free consultation.

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