ASSAULT AND DOMESTIC VIOLENCE

In the past, familial disputes were viewed as a private issue to be handled inside the house. Today, it is considered a serious problem and most allegations are thoroughly investigated by law enforcement.  Law enforcement officers are required by law to make a mandatory arrest if they respond to a domestic violence call.  Unfortunately, the spouse or family member making the 911 call is unaware of the consequences.  The arrestee will be held in jail pending the next court date or released on the condition he not have contact with family members.  A violation of the “no contact order” subjects a person to additional criminal charges and a trip back to jail.  Faced with these consequences, an arrestee is simply forced to move out of the house until the case is resolved. Now, a simple argument spiraled out of control and is leading to devastating and unintended consequences.  Furthermore, if convicted a person faces jail time, loss of firearm rights, immigration consequences, an order prohibiting contact with family members, forced attendance in a 12 month domestic violence program, anger management, and a heavy monetary fine.  The Law Office of Michael P. Sheehy, PLLC is here to help.  We have represented hundreds of clients charged with domestic violence and know the best defenses available.   

In Washington, any offensive touching is considered a fourth degree assault regardless of the existence of visible injuries. Even a slight push is considered a fourth degree assault and is punishable up to a year in jail.  The State can charge and convict you of an assault even if the victim recants, changes his/ her story, or doesn’t appear for trial.  Although a victim’s wishes may be considered, ultimately it is the prosecutor’s decision on whether or not to proceed with the case. 

In Washington, the Courts recognize three different ways of committing an assault in the fourth degree. See RCW 9A.36.041: http://apps.leg.wa.gov/RCW/default.aspx?cite=9A.36

•  INTENTION TO INFLICT BODILY INJURY
• An attempt to inflict bodily injury on another, accompanied by an apparent present ability to do so. 
• For example, swinging a fist, but failing to connect with the victim is an assault.

• INTENTION TO CREATE APPREHENSION
• Intentionally creating in another person reasonable apprehension and fear of bodily injury, whether or not the actor actually intends to inflict or is incapable of inflicting that harm.  The conduct must go beyond mere threats; there must be physical action that creates a reasonable apprehension that injury is imminent. 
• For example, throwing a plate against a wall above a person’s head is an assault.

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• INTENTIONALLY COMMITTING UNLAWFUL TOUCHING
• Intentionally committing an unlawful touching, regardless of whether physical harm results.
• For example, spitting in a person’s face or a slight push is considered an assault.

An assault in the third, second, or first degree are felonies and the maximum punishments are between 5 – 20 plus years in prison.  The degree of assault is determined by numerous factors including:

•    a weapon was used including guns, butcher knives and bottles
•    the victim sustained bodily harm, requiring more than first-aid at the scene
•    there are threats / intent to kill
•    child was assaulted,  bruising after spanking or more severe discipline
•    the person assaulted was in law enforcement, transit operator, or health care

 
Unfortunately, many people are arrested after the police arrive and listen to false or misleading allegations.   After an arrest, the court will set bail at the preliminary appearance.  An individual may be released on their personal recognizance (release without bail) unless one of the following 3 factors exists:

1. Appearance: The court is not “reasonably assured” that the defendant          will appear at subsequent hearings; or
2. Crimes: There is “shown a likely danger that an accused will commit a                 a violent crime” which may include a misdemeanor; or
3. Intimidation: There is shown a likely danger that an accused will                         intimidate a witness or “interfere with the administration of justice.”

The court will consider:

• how long the accused has been at his current residence
• employment status, employment history and financial condition
• family ties and relationships
• reputation, character and mental condition
• prior history of appearing in court
• criminal record of the accused
• willingness of others to vouch for reliability and help with compliance
• nature of the charge
• other factors indicating ties to the community
• record of threats to victims/witnesses or interference with witnesses                   or the administration of justice       

If you bail out of jail or are released on your personal recognizance the court can place conditions of release including:

• placing restrictions on travel, association or place of abode
• require execution of a bond or cash bail
• prohibit the accused from going to certain premises or contacting certain persons      
• prohibit the accused from possessing weapons, possessing or consuming alcohol or nonprescription drugs or other activities

In many cases there are lawful defenses to an assault.  Lawful defenses include:

1. General Denial – the victim fabricated the assault
2. Mutual Combat – both parties assaulted each other and are equally at fault
3. Self Defense -  a person was defending himself or another person or his property.  A lawful claim of self defense depends on several factors including:

• The person claiming self defense was in fact in danger. 
• The person had not provoked or invited that danger
• The means which the person used were only those which were reasonably necessary to achieve the protection authorized by law. 
• The person was not engaged in criminal conduct substantially related to the events giving rise to the charge filed.
                

Remember, the Government can charge and convict you of an assault even if the victim recants, changes his/ her story, or doesn’t appear for trial.  You need to contact an experienced criminal lawyer who knows how to analyze the evidence and the strength of a case. Michael has handled thousands of assault cases as a prosecutor and as a defense attorney.   He knows how the criminal justice system works inside and out; and will provide the best defenses available for your case.  Michael will take the time and effort to explain “the system” and to discuss all of the options that are available to you during this emotional time.   

Disclaimer: this information is not intended as legal advice and is provided for illustrative purposes only. Please contact an attorney before making assumptions about your case.

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