Charges of domestic violence can be prosecuted in criminal court, family court or both. Many times after the defendant is charged in criminal court the injured party then files for an order of protection in family court as well. Domestic Violence cases deal with issues of both criminal law and family law.
There are several penal law (criminal law) charges that can fall under the category of domestic violence.
A list of some offenses is set forth below:
- Disorderly Conduct;
- Aggravated harassment;
- Reckless endangerment;
- Sexual Assault;
- Sexual Battery;
- Assault; and
- Attempted assault.
Charges for domestic violence follow the same procedure as all other felonies and misdemeanors. The court will, however, issue an order of protection in favor of the complainant and against the accused at the arraignment. For the court to accept a plea bargain the court usually requires the accused to complete an anger management or batterer's program such as SAGE, possible alcohol or drug treatment and other requirements to try to prevent the alleged incident from reoccurring at a later date.
Being charged with domestic violence will sometimes result in the defendant being removed from the marital home. The court will not allow the defendant to return even if the complainant wants the defendant to return until the counseling programs are completed.
If there is divorce action pending, a family court proceeding for an order of protection and a criminal case for domestic violence, the cases will usually be consolidated with each other and all of the cases will be heard before one judge in an Integrated Domestic Violence Part (IDVP). In many instances this benefits the parties as they do not have to pay for attorneys to appear in multiple courts for multiple different matters. The court gets a view of everything that is going on and can help to develop a comprehensive resolution that benefits the parties. If the defendant's attorneys practice both criminal and family law the defendant needs only one attorney.
If you have been charged with a domestic violence crime, or have been the victim of domestic violence, you should consult with experienced matrimonial and criminal law attorneys without delay so you can determine and protect your legal rights.
CRIMINAL DEFENSE OVERVIEW
Criminal law is the body of law that relates to so-called "public wrongs." Criminal law does not concern itself with disputes between individuals but also to offenses against the public order. The federal government, along with cities and states, define and prosecute people who commit crimes that range from minor traffic violations to serious, violent offenses, like rape or murder. People who are charged with a crime are called defendants, and they are represented by criminal defense attorneys. The governmental body that pursues the charges against the defendant is represented by a lawyer called a prosecutor. If you find yourself charged with a crime, you should contact an experienced criminal defense attorney, to protect your rights now and in the future.
The United States Constitution prohibits taking a person's life, liberty, or property without the due process of law. In order to meet this standard, a criminal statute must clearly set out the conduct that will be considered criminal. The statute must be more than a vague description that leaves a person without notice of exactly what conduct is prohibited. A criminal statute must set out the state of mind of a guilty person, called the mens rea, as well as the unlawful action, or actus reus. If you accidentally step on someone's toes when you enter a crowded elevator, that is not a crime because there was no guilty mind. Fantasizing about stomping on your boss's toes is not a crime because there is no guilty act. Crimes of attempt, like attempted murder, are not an exception to this rule. Attempt crimes require doing something toward the commission of the crime. A criminal defense attorney will be able to explain these terms to you and to take away some of the mystery of an unfamiliar situation.
The Defense Process
Every lawyer involved in the criminal justice system must adhere to a complex set of rules of procedure to ensure a fair trial. The rules apply to both prosecutors and defense attorneys. This complicated procedure means that the criminal justice system is best dealt with by an experienced criminal defense attorney. A defense attorney should get involved in a case at the earliest stages, even before interrogation, if possible. The arresting officers have the obligation to inform the person in custody that he or she has the right to an attorney and the right to have an attorney appointed if he or she does not have the resources to pay for an attorney. Most of us are familiar with these warnings - called "Miranda" warnings, after the name of the US Supreme Court case that first required the warnings -- from crime dramas and television shows.
Crimes committed by children are handled by a separate criminal justice system, known as the juvenile justice system. Juvenile courts typically have less formal procedures and a less formal manner of adjudicating cases. While many defense lawyers handle both juvenile and adult cases, some focus their practices on only one type of representation.
Negotiating a Plea Agreement
Some criminal charges are dropped after a defendant's defense attorney negotiates with the prosecutor. In some cases, the defendant pleads guilty to a less serious charge in exchange for the prosecutor's agreement to drop the more serious charges. The final decision on whether to accept a proposed plea agreement always rests with the defendant.
Depending upon the severity of the crime committed, a defendant who is found guilty may be sentenced to serve some period of probation, to pay a fine, perform community service, make restitution or pay for the monetary losses caused by the crime, or to serve some time in prison. In some states, the most severe crimes are punishable by death. A veteran criminal defense attorney will know how to work with a prosecutor to fashion a deal that provides for the least severe punishment possible. If no deal can be made, the attorney can mount an aggressive defense in court to convince the jury that the prosecutor cannot prove, beyond a reasonable doubt, that the defendant committed the crime.
When you are accused of a crime, you find yourself in a frightening and stressful situation. No matter how minor the charge may seem, you should be represented by knowledgeable, competent counsel, who can work through the criminal justice system, give you zealous representation, and minimize the impact of the proceedings on your life. If you have been accused of a crime, or if you know someone who has been accused of a crime, do not delay in contacting an experienced criminal defense attorney.