Several years ago jurors were summoned to hear a trial in the Johnson County, Kansas, District Court. The prosecutor and defense attorney began by questioning the jury panel for a few hours. The jury was then chosen. Before the presentation of evidence, the judge read the Complaint to the jury, which is the document that alleged the criminal act that the defendant committed.
The Complaint alleged that the defendant intentionally broke his wife’s coffee mug. This crime is called criminal damage to property. This was considered a domestic violence case, because in Kansas, a domestic violence case refers to any crime committed by one member of a family or household against another member of a family or household.
One juror raised his hand. He asked the judge if he could be excused from jury duty if he simply payed for the coffee mug himself, and there were a few laughs in the courtroom. The judge did not allow this juror to leave. The case was heard. Fortunately, the defendant was acquitted.
This story is not recited to make light of domestic violence offenses. Domestic violence offenses can be seemingly minor and almost silly, like the one above. But domestic violence cases can also be incredibly serious, including crimes such as:
- Stalking
- Eavesdropping
- Aggravated battery
- Aggravated assault
- Rape.
Domestic violence cases often involve relationships, with a multitude of issues, and they are often filled with strong emotion.
These cases can have a large disruption to families, no matter what the allegation against the defendant is.
These cases also have their own unique repercussions, and can also significantly affect your rights in the future.
Whether a domestic violence case appears to be a very minor allegation, or a very serious allegation, or anything in between, one should hire an experienced, knowledgeable, respected, and aggressive criminal defense attorney to guide them through the process.
What is a Domestic Violence Offense?
Kansas law defines “domestic violence” as an act or threatened act of violence against a person with whom the offender is involved or has been involved in a dating relationship, or an act or threatened act of violence against a family or household member by a family or household member.
Domestic violence also includes any other crime committed against a person or against property, when directed against a person with whom the offender is involved or has been involved in a dating relationship or when directed against a family or household member by a family or household member.
“Family or household member” means persons 18 years of age or older who are spouses, former spouses, parents or stepparents and children or stepchildren, and persons who are presently residing together or have resided together in the past, and persons who have a child in common regardless of whether they have been married or have lived together at any time.
Regardless of whether a man and woman have been married or have lived together at any time, if the woman is pregnant and the man is alleged to be the father they are considered a family or household member.
Why Was I Arrested For Domestic Violence?
One of the first questions individuals who have a domestic violence case ask their attorney is “why was I arrested?!”
In the broken coffee mug situation, the wife may have never wanted her husband arrested, and stated she “didn’t want to press charges.” The husband may have offered to pay for the mug. The husband could have been extremely professional and respectful to the police when they arrived. The police officers called to the scene may not have wanted to arrest the husband.
The bottom line, however, is that if the police receive a call involving a domestic situation in Kansas, someone is likely going to jail. Kansas statutes mandate that every law enforcement agency in the State write a domestic violence policy, and that policy must have a provision that if the police have probable cause that an individual committed a domestic violence offense, they are going to jail. K.S.A 22-3207. The days of victims declining to “press charges” and the police leaving are long gone in Kansas.
In the above case, if the police had probable cause to believe that the wife had an interest in the coffee mug, did not consent to the coffee mug being broken, and the husband broke the mug intentionally in Johnson County, Kansas, he will be arrested. He will be taken to the Central Booking Station in Olathe, Kansas. This is not the local police department. This is a real “jail” which also houses the people arrested for crimes such as murder and kidnapping. The defendant will likely be held overnight and without bond.
In most Kansas courts the alleged victim will be provided information about community resources like safehomes and shelters, counseling and the ability to obtain a civil restraining order to further protect them from the other person.
In Johnson County, they will be told to be in court the next day so that they can have input with the court as to whether they want to have any contact with the accused person during the pendency of the case. In Johnson County and some other counties, prior to the first court appearance, court services officers will prepare a “Threat Assessment” where they attempt to assess for the court what level of threat the accused person represents to the alleged victim, others or themselves.
Cooling Off Period And The No Contact Order
Usually, if the alleged victim says that she wants to have contact with the alleged offender, the court will order that there be no contact between the two of them for 72 hours, as a “cooling off” period as emotions are likely running pretty high. The court may then order that the can have contact going forward, if the victim consents to it, but “no violent contact”. That means there is to be no fighting, yelling, etc.
The court may order that there is a “no contact” order whether the supposed victim wants the person to come home or not. Meaning no contact;
- in person
- by phone
- in writing
- by text or email
- through a third person
They are not to go to the other person’s work or home or be where the other person is located for any reason.
The court will likely allow a neutral third party to go and get the accused person’s clothing and personal items for the house and may have the third party coordinate parenting time with the parties’ children.
This can often become a complicated situation when the accused person is not allowed to go back to his or her home, or when the parties have children between them that they have to exchange and parent, or when they work together or otherwise would normally be in the same place at the same time.
These no contact orders cannot be ignored by an individual charged with a domestic violence offense. If a prosecutor or law enforcement officer finds that a defendant has violated a no contact order, he is likely to be arrested, put in the county jail, and have a higher bond placed on him. Worst yet, he will likely be charged with a new misdemeanor case of violating a contact order.
Protection from Stalking and Protection from Abuse Orders
Victims in domestic violence cases sometimes will file a Protection from Staking Order, or a Protection from Abuse Order, against the defendant soon after he or she is arrested, although victims can do this without a criminal case filed against the defendant. These are civil orders that are very similar to a no contact order in the criminal case. Violation of these orders could result in an additional criminal charge or charges.
“Stalking” means an intentional harassment of another person that places the other person in reasonable fear for that person’s safety.
“Abuse” means the occurrence of one or more of the following acts between intimate partners or household members:
(1) Intentionally attempting to cause bodily injury, or intentionally or recklessly causing bodily injury
(2) Intentionally placing, by physical threat, another in fear of imminent bodily injury; or
(3) Engaging in any sexual contact or attempted sexual contact with another person without consent or when such person is incapable of giving consent.
If an individual alleges that stalking or abuse have occurred, and filed a protection order, it is imperative that the defendant be correctly advised, and he or she should hire an attorney familiar with these cases.
These are civil cases which allow different defense strategies, as you can force the other part to testify under oath before a trial (deposition), force them to answer questions in writing prior to a trial (interrogatories), and force them to deny or admit certain facts (request for admissions).
These cases sometimes can involve negotiated agreements between the parties, where the protection order case will be dismissed as long as certain conditions by the parties are met.
If you are facing a protection from abuse or protection from stalking case, with or without an accompanying criminal case, you should seek an experienced and dedicated attorney to assist you.
Other Bond Conditions Related to a Domestic Violence Charge
Other bond conditions in addition to a no contact order, may include
- drug or alcohol monitoring
- house arrest
- counseling for mental health or anger control
Not surprisingly, many domestic violence cases occur during divorce proceedings and the court may defer to the divorce court’s orders about child custody, parenting time or contact between the parties.
The court also may defer to the civil orders in a protection from stalking or protection from abuse case. It is important to remain compliant on bond, as failure to do so will lead to a bench warrant and an arrest.
Consequences of A Domestic Violence Conviction In Kansas
The phrase “domestic violence” has more of a negative connotation today than it ever has before. There is a stigma attached people charged with any crime that uses the phrase “domestic violence.” The phrase itself leads to stigmatization, whether it is from family members, friends, or to an employer. There are also unique ramifications that can occur too people charged with these types of offenses.
Loss of Rights to Own a Firearm
Many people think that loss of firearm rights can occur only with felony convictions. This is not true. If you are convicted of a misdemeanor domestic violence offense you can lose your right to own, possess, or sell firearms. It is imperative that the accused have an attorney advise them of these rights and how to preserve them.
Federal law removes one’s firearm rights if he or she is convicted of any misdemeanor crime of domestic violence. 18 USCA § 922 (g) (9). However, federal law defines “domestic violence” somewhat differently than Kansas. Under federal law, domestic violence is a crime that “has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim.” 18 U.S.C. § 921(33).
It is important for a defense attorney to advise their clients on issues of firearm ownership and firearm rights when they are charged with domestic violence offenses. An attorney must have some knowledge how the federal statute reads, and apply it to their client’s case. Failure of an attorney to properly advise their client on a domestic violence case can jeopardize the client’s 2nd Amendment rights to own and possess firearms.
Anger Control or Batterer’s Intervention Classes
If it is determined that a domestic violence was committed by the judge, usually a “domestic violence” designation will be attached to the case. What this designation does is trigger two things. One, the defendant must undergo a domestic violence offender assessment conducted by a certified batterer intervention program; and two, the defendant follow all recommendations made by such program, unless otherwise ordered by the court or the department of corrections. The recommendation is typically that the defendant complete anger control classes, or batterers intervention classes.
Anger control classes are the lesser of the two. Anger control classes typically last about 12 weeks, with one session per week. You only have usually two unexcused absences that are allowed. These classes cover topics such as stress time outs, assertive communications, and recognizing anger cues.
Batterer’s intervention treatment is a minimum of 24 weekly group sessions. Intake and orientation are in addition to these sessions. Each session is a minimum of 90 minutes. It takes about 6 months to complete the program. The Attorney General’s guidelines for Batterer’s Intervention Programs states that: “The mission of batterer intervention in Kansas is to hold batterers accountable, create nonviolent behavior, and promote safety for victims. On a wider scale, batterer intervention seeks to create social norms that reject rather than affirm or ignore battering within intimate family and household relationships. Batterer intervention participants may also need additional services for mental health/psychiatric assistance, drug and alcohol treatment, parenting education, or other issues. Batterers should be screened for these issues and referred to appropriate resources but these treatments should be in addition to, not in lieu of, a batterer intervention program.”
There is a way to avoid either program, even if one is convicted or diverted of a domestic violence case. The court should not place a domestic violence designation on the case if (1)
the defendant has not previously committed a domestic violence offense or participated in a diversion upon a complaint alleging a domestic violence offense; and (2) the domestic violence offense was not used to coerce, control, punish, intimidate or take revenge against a person with whom the offender is involved or has been involved in a dating relationship or against a family or household member. Again, it is important to have a good attorney to guide you through these issues.
Diversion
Diversion may be an option if the person has no prior domestic violence offenses on his or her criminal record. Diversion is a program whereby you enter into an agreement with the prosecutor to follow the terms and condition of a diversion agreement for a period of time, usually 12 months. If you successfully comply with the requirements of the diversion agreement the charge is dismissed and there is no conviction.
Probation and Incarceration
If you are convicted of a domestic violence offense, you could be subject to probation, time in the county jail, or prison. The result depends on a variety of factors, such as the severity of the misdemeanor or felony, the performance of a defendant on bond, the judge and courtroom you are in front of, the defendant’s criminal history, the desires of the victim, and whether the victim and defendant have had previous interaction. The strategies, and risks, of defending these cases, and obtaining a dismissal, an acquittal, or a lesser sentence, require a knowledgeable and zealous attorney.
You Need A Criminal Defense Attorney Experienced With Domestic Violence Defense
A domestic violence charge can have very serious consequences for the person accused. Not only is there the possibility of having a criminal conviction on your record, but a domestic violence conviction can affect gun rights, military careers, and immigration status. A domestic violence conviction is a deportable offense and will often result in non-citizens being deported.
A DV charge can also affect whether you see your children, or in what capacity, and can have other impacts on your family life, professional life and your freedom.
Domestic violence is a very common and very real problem. It occurs within the most intimate of relationships and can lead to terrible long-term consequences for victims and for the children of these relationships.
Unfortunately, the domestic violence laws can also be used by one partner to a relationship against another to try to gain some control in the relationship or the upper hand in a divorce or custody battle. Again, they are often complicated and fraught with emotion. An experienced attorney is required to navigate a charge of domestic violence.
