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Jan 24, 2019

Spousal Abuse vs. Domestic Violence in California

Spousal abuse and domestic violence have definitions unique to the state in which you live. When considering spousal abuse vs. domestic violence in California, it’s important to understand that spousal abuse constitutes a subset of the crimes under the domestic violence umbrella. That’s because spousal abuse implies harming the person to whom you’re married, whereas California domestic violence laws also protect people connected in ways other than through marital relationships. Here are the types of relationships that are covered under the California Family Code domestic violence statutes.

Spouse or Former Spouse: This is the relationship most people think about when considering spousal abuse vs. domestic violence in California. Your spouse is the person to whom you are married, and your former spouse is the person to whom you once were married but are now divorced. In other words, this is your wife, your husband, your ex-wife, or your ex-husband.

Cohabitants or Former Cohabitants: A cohabitant is someone with whom you live. A former cohabitant is someone who formerly lived with you. For example, a boyfriend and girlfriend who live together but who aren’t married are considered cohabitants, as are LGBTQ couples who live together but who aren’t married or in a registered domestic partnership. Similarly, if you’re living with your fiancé or fiancée (the person to whom you’re engaged), they would be considered your cohabitant. If you or they broke off the relationship and one or the other of you moved out, they would be considered your former cohabitant.

People in a Dating Relationship: When talking about spousal abuse vs. domestic violence in California, state law specifies that domestic violence protections apply to people who are in a dating relationship. This means that the two people have an intimate relationship, get together frequently, and expect to continue their relationship. This includes your fiancé or fiancée, whether or not you are living together. Not included in domestic violence protections are intimate sexual relationships for which money is exchanged, such as the relationship between a sex worker and their clients.

Consanguinity Relationship: A consanguinity relationship is a blood relationship. Under California law, first- and second-degree relatives are included under the consanguinity umbrella. So, for example, you could be accused of engaging in domestic violence against your children, grandchildren, and great-grandchildren. You could also be subject to domestic violence charges for acts committed against your parent, brother or sister, nephew or niece, great nephew or great niece, and great-grand nephew or great-grand niece. The same holds true if your accuser is your grandmother or grandfather, aunt or uncle, first cousin, first cousin once-removed, first cousin twice removed, or first cousin thrice removed. These protected relationships also extend to half relatives, such as your half-brother or half-sister.

Affinity Relationships: Affinity relationships refer to connections that exist because two people are married. Example of affinity relationships include mother-in-law, father-in-law, brother-in-law, sister-in-law, grandfather-in-law, grandmother-in-law, and so forth. Your stepson, stepdaughter, stepmother, and stepfather are also considered affinity relations. As is the case with consanguinity relationships, first- and second-degree affinity relatives are included under California domestic violence law.

Parenting Relationship: California’s Family Code also covers domestic violence involving children. Under the law, your child can be your biological child (but not if you acted as a gestational surrogate or if your parental rights have been terminated) or your adopted child. Under the law, you can be the presumed father of the child, you can acknowledge paternity, or a court can have determined your paternity. Because the law covers children who are subject to the Uniform Parentage Act, you can also be considered the de facto parent of a child if the child resides or resided in your household, if you consistently cared for the child, or if you took on parental responsibilities without being compensated or expecting compensation.

It’s important to know that domestic violence in relationships as described in the California Family Code is slightly different than what is considered “intimate partner domestic violence” in the California Penal Code. The latter is what people traditionally associate with spousal abuse, although it applies to any intimate partner or former intimate partner – not just married couples or former married couples. Regardless of the relationship, however, if you’ve been charged with domestic violence in Alameda County, it’s critical to contact an Oakland domestic violence lawyer.

 

Illegal Actions Under California Domestic Violence Laws

When thinking about spousal abuse vs. domestic violence in California, it’s important to note that the Family Code broadly defines abuse to include a number of actions. These include the following.

Bodily Injury: It is illegal to cause or attempt to cause bodily injury to a person who belongs in one of the above categories of relationships. This is true whether you intended to try and harm them or if your actions are considered simply reckless. The type of bodily injury covered under the law is quite varied. It can include physical fights that include hitting, kicking, and shoving, but it can also include things like throwing objects.

Sexual Assault: Sexual assault is also considered domestic abuse under the law. This can be rape, but it can also be coercion or forced participation in sexual acts. Essentially, it is unwanted sexual behavior in the eyes of the accuser or behavior that interferes with the accuser’s ability to say, “no.”

Telephone Harassment: California domestic violence law prohibits telephone harassment. This might include calling and hanging up, leaving messages that could be construed as intimidating or threatening, repeatedly calling the person’s workplace, or calling at all hours of the day and night.

Online Harassment: Domestic violence law in California includes a variety of behaviors that could be considered online harassment. For example, it’s considered abuse to pretend be another person and intimidating or threatening your accuser online – whether via email, social media, or a website.

Threats and Coercion: When people think of spousal abuse vs. domestic violence in California, they often think only of physical aggression. In fact, California law says that abuse can be psychological, verbal, or emotional. Threatening to harm someone or someone they love – like their child or a parent or a pet – is considered domestic abuse. Threatening to report your accuser to Child Protective Services, threatening to kill yourself, or coercing your accuser into dropping charges may all be viewed as domestic violence.

Economic Control: Having total economic control over another person can be considered abusive. For example, not allowing your spouse to work and instead giving them an allowance, taking money from your partner, or keeping bank account access and information from them can be forms of domestic violence.

Isolation: Psychological control is considered abusive. This can come up if you determine who your accuser sees and when, humiliate the other person by calling them names, “gaslight” them by making them second-guess themselves, or make them feel guilty.

It’s important to note that California domestic violence laws cover not only physical injury but also the fear of physical injury. In other words, if your accuser feels afraid that you’re going to hurt them, that can lead to an arrest and a host of other consequences. And, if you’ve been arrested for domestic violence, it’s important to call an Alameda County domestic violence attorney as soon as possible.

 

Consequences of Domestic Violence Charges in California

When thinking about spousal abuse vs. domestic violence in California, it’s crucial to understand the consequences of domestic violence accusations, arrests, and convictions.

Restraining Orders: If the police are called out on a domestic disturbance call and the officers believe you abused or threatened to abuse the other person, your accused may ask for (or agree to) an emergency protective order. If this happens, then the officer contacts an on-duty judge, who can issue an order that can last up to seven days. Your accused may also go to court and file paperwork for a temporary restraining order, which, if granted, stays in effect until your court hearing date. This can be up to or even slightly longer than three weeks. At the hearing, the judge can extend the restraining order and make it more permanent. If that happens, the restraining order can be in effect for up to five years. If criminal charges have been filed against you, a restraining order can be put in place until the criminal proceeding has reached its conclusion. If you plead guilty or if you’re found guilty at trial, that restraining order can stay in place for three more years.

A restraining order can have devastating consequences. It can prohibit you from seeing your significant other, your children, your pets, or others in your household. It can force you to move out of your house or apartment. A restraining order can mean you have to surrender your guns. It can force you to arrange for custody and visitation to see your children, as well as to pay child support. If you’re married to your accuser, the order can also place severe restrictions on your finances by keeping you from making large purchases or requiring you to pay certain bills. If you’re a noncitizen, you may be deported from the U.S. Lastly, your restraining order will become part of a state database that is accessible by any police officer.

Domestic Violence Convictions: The penalties associated with a domestic violence conviction vary depending on the charges, the type of injuries sustained by the accuser, and your criminal record.

Most people arrested for domestic violence are accused of violating California Penal Code section 273.5, which pertains to bodily injury. This applies to an accuser who is your intimate partner, meaning your spouse, cohabitant, fiancé or fiancée, or someone in a dating relationship. Remember, these relationships can either be current relationships or former relationships – like your ex-girlfriend or ex-husband.

Sometimes, a person gets arrested when they’re innocent. Sometimes, the wrong person gets arrested. Officers often take into account who made the phone call to the police, who appears to be injured, and who seems more distressed. They assume that is the victim and then arrest the other person.

A section 273.5 crime is called a “wobbler.” This means that it can be tried as a misdemeanor or a felony. A misdemeanor conviction can result in a fine of up to $6,000 and up to a year in county jail. A felony conviction can mean two, three, or even four years in state prison and up to $6,000 in fines. You’ll likely also be ordered to pay for your accuser’s expenses, which can include medical bills, counseling, and lost wages. In addition, you’ll be required to pay money to a domestic violence prevention program. Finally, you’ll likely be required to attend a batterer’s counseling program.

If you’ve had a prior domestic violence conviction within the previous seven years, you’ll have a mandatory jail sentence of 15 days. If you’ve had two or more prior convictions, that becomes a minimum of 60 days in jail. One or more prior convictions also increase fines up to $10,000.

Jail or prison isn’t necessarily a sure thing. You can get misdemeanor or felony probation even if you’re convicted for violating section 273.5 of the California Penal Code. Still, you’ll likely be required to pay a fine, pay restitution, and attend a counseling program.

 

Alternatives to Section 273.5 Convictions

If you’re charged with a section 273.5 crime in Oakland, it’s important that your first call is to an Alameda County domestic violence attorney. With an experienced attorney by your side, you may be able to have the charges dropped or be charged with a lesser crime. For example, a misdemeanor battery or a simple assault conviction comes with lower fines and a lighter sentence. Similarly, your Oakland domestic violence attorney may be able to poke holes in the prosecutor’s case, which could result in a lesser charge of disturbing the peace – something that can be charged as an infraction or a misdemeanor.

If a plea deal isn’t feasible, your Alameda County domestic violence lawyer can navigate the criminal justice system with confidence, providing you with a strong defense that results in the best possible outcome. Potential defenses for section 273.5 crimes include that you were acting in self-defense, that you were falsely accused, that the injury was actually an accident, or that the prosecutor failed to meet the burden of proof for a conviction.

The bottom line? Understanding spousal abuse vs. domestic violence in California is a critical first step in grasping the implications of being charged with – and convicted of – a section 273.5 bodily injury crime.



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