By: Larry Kohn, Law Partner and Best Lawyers in America and Super Lawyers Rated
What Is Domestic Violence?
Because domestic violence laws are written by the Legislature of each individual state, a domestic violence definition cannot be universally stated. However, certain common components of these many state statutes from various jurisdictions are universal. All states have set up both felony or misdemeanor crimes to escalate criminal law consequences for REPEAT offenders, or for crimes like assault or aggravated assault that injure, maim or kill another.
For many people facing family violence charges in the State of Georgia, this is the first time in cuffs or going to jail. Since J. Edgar Hoover ran the FBI, federal law requires that all arrested persons be fingerprinted, and a mug shot taken. The “history” of this happening will be available to law enforcement and prosecutors permanently. This criminal history of an arrest allows access to the charging document (an accusation or an indictment by a grand jury), plus will show how that arrest was “resolved” and when that event occurred.
Like most crimes, repeat offenders are treated more harshly than a person facing a first offense, for example, the crime of family violence battery under OCGA 16 5 23.1. That 1st offense is a simple misdemeanor offense that carries a maximum jail penalty of up to 12 months, plus a $1,000 fine. A person’s 2nd (or subsequent) conviction involving the same victim or involving another family member will result in a felony offense that carries up to a maximum penalty of five (5) years in state prison.
This paragraph about domestic violence from Wikipedia helps set up the “big picture” when it comes to family violence crimes (footnotes omitted):
Globally, the victims of domestic violence are overwhelmingly women, and women tend to experience more severe forms of violence. They are also likelier than men to use intimate partner violence in self-defense. In some countries, domestic violence is often seen as justified, particularly in cases of actual or suspected infidelity on the part of the woman and is legally permitted. Research has established that there exists a direct and significant correlation between a country’s level of gender equality and rates of domestic violence, where countries with less gender equality experience higher rates of domestic violence. Domestic violence is among the most under-reported crimes worldwide for both men and women. Due to social stigmas regarding male victimization, men face an increased likelihood of being overlooked by healthcare providers.
Recently-enacted laws in Georgia (in 2010, 2015 and 2016) define family violence as being certain types of criminal acts between people occupying a household together, which usually occurs with one or more domestic partners being family members. The possible penalties for crimes within that residence (or between those who formerly cohabited) are written in a way to punish more harshly than if two strangers got into a fist fight or public verbal altercation.
Georgia Family Violence Act – An Overview of the Broad Sweep of These Laws
Georgia family violence law has provisions for a procedure for victims of domestic violence to obtain a judge’s protective order against alleged abusers who are current or former family members, or from former domestic relationships. This includes persons who are parents of the same child, foster parents, step-parents, and persons currently or formerly living in the same household.
Significantly, the Georgia Legislature placed mandatory arrest responsibility when a law enforcement officer investigating claims of family violence acts is told, or investigates and finds out about certain facts creating probable cause to believe that the law has been violated. Plus, a permanent State Commission on Family Violence with 37 members from all disciplines was put in place to oversee family violence issues and suggest legislative changes in the future.
The deciding factor between garden-variety assault (which laws are applicable to ALL people) and domestic violence are the identities and relationships (present or past) of the people getting in the fight. This maxim applies to assault, simple assault, battery, simple battery, aggravated assault, stalking, or aggravated battery.
The same criminal conduct has taken place, but when the folks involved have a current or former DOMESTIC relationship, Georgia laws ramp up punishment and calls for a quick arrest of the perceived perpetrator to diffuse the potential deadly escalation. So, when a domestic violence crime is involved, new legal protections from a Judge like a “no contact” order or restraining order can quickly be obtained.
Most of the following types of actions can support an accusation, arrest, or indictment of a person:
(O.C.G.A. § 19-13-1)
- financial abuse
- simple battery
- simple assault
- sexual abuse
- physical abuse
- criminal trespass into a former intimate partner’s living quarters
- criminal damage to property
- unlawful restraint
- any felony crime committed between such persons
- use of controlling behavior as evidenced by power and control over the wife, husband or domestic partner (e.g., battery, simple assault) and particularly if children are used as a pawn or to gain leverage by the wrongdoer to compel the other domestic partner to yield to force or intimidation
- In some states, like Georgia, the mere presence of a child within the same home or abode as the adult who is verbally abusing and threatening can lead to an arrest.
The starting point for family domestic violence is to think broadly in terms of the scope of legislation proscribing domestic abuse, assault family violence, or (in some states, like Georgia) exposing a child to a domestic argument. Examples of thinking broadly include the fact that physical abuse or touching of another (like slapping, punching grabbing) is not a requirement for a suspect to be arrested and charged with domestic violence abuse.
Plus, “family” is defined very loosely so that the persons living together need not be married or even currently living in the same household. Because domestic relationships and partnerships are far more common today than in 1950, the State is not expecting forced marriages to take place for any victims to be able to receive protection from our Georgia laws on domestic violence. Thus, people living or formerly living together qualify for family violence protection under the GA family violence act. Common sense and the need to protect children are common reasons to leave the relationship when safety concerns call for a departure.
Assault is placing someone in fear of apprehension or bodily harm. A person does not have to have physical contact. Simple assault can be an exchange of words that (to a reasonable person) would communicate a belief that an injury is about to occur. Domestic violence is the same conduct as an assault, but the family-related crime is between members of the same household.
For example, a person could have an argument with their girlfriend. If they do not live together it may not be a big deal, however, if they lived together at one time, it is a bigger deal according to the justice system. The key to what determines domestic violence is the word domestic; it must be people in the same household.
If you have been charged with domestic violence or family violence battery, contact a Georgia domestic violence attorney to learn more about building a defense, as well as how it might differ from an assault charge.
An accusation or indictment is created by the prosecutor’s office in your case. The tendency is to charge you in alternative “counts” (separate charges) in as many ways as a creative young State prosecutor can imagine, from the facts stated. Two primary objectives of the prosecution team are (a) to hopefully coerce the accused person into trying to negotiate a plea to a lesser number of charges, and (b) for those who are not represented by legal counsel, to allow the prosecutor to offer these non-lawyers a “deal” that sounds good to them.
Some accused citizens (upon learning that their first offense charge is a mere misdemeanor) don’t seek out top-rated criminal defense lawyers near me, for representation. By hiring the best of the attorneys near me for legal help, he or she would learn all the consequences of pleading guilty to this crime.
Federal laws are in place to bar a person who has been convicted of any crime of domestic violence to no longer be allowed to lawfully possess a firearm. The misdemeanor crime of family violence battery is clearly covered by the federal definition of “domestic violence.” Because Georgia is one of the leading “right to bear arms” states, this loss of entitlement (if known) would justify hiring a criminal defense attorney Atlanta with top lawyer ratings to handle the criminal case. If caught in possession of a weapon, after such a conviction, a felony under federal law would be brought against the perpetrator.
In addition, while the maximum time behind bars includes 12 months in custody and a fine of $1,000, many Georgia judges will permit individuals convicted of FVB (family violence battery) to serve this potential time on probation, as long as he or she is compliant with the rules of probation. Almost 100% of the time, the sentencing judge requires the convicted misdemeanant to attend and successfully complete a domestic violence educational program. Such programs are State-certified family violence intervention programs and will involve the probationer attending 24 weeks of classes, undergoing counseling, plus paying all program fees that are not included in the court fine assessed by the judge. Some judges add on community service hours and (where evidence of substance abuse exists) tack on alcohol and drug evaluations and obtaining necessary treatment.
The Text of the 2010 Georgia Domestic Violence Law
As used in this article, the term “family violence” means the occurrence of one or more of the following acts between 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:
(1) Any felony; or
(2) Commission of offenses of battery, simple battery, simple assault, assault, stalking, criminal damage to property, unlawful restraint, or criminal trespass.
The term “family violence” shall not be deemed to include reasonable discipline administered by a parent to a child in the form of corporal punishment, restraint, or detention.
Is “Spanking” a Child Domestic Abuse?
No, but the physical discipline must be restrained and not go overboard. The new statutes on family violence specifically exempt a parent’s “reasonable discipline” of a child by administering corporal punishment, detention or other reasonable restraint methods. This special provision is a sort of “affirmative defense” to alleged family violence between a parent disciplining a child.
Like with most alleged crimes, two sides to the story may exist. The new laws on family violence in Georgia have retained a parent’s right to utilize corporal punishment, so long as not abusively used. Unruly children who reach adult size that cannot be controlled and retaliate or abuse their parent, grandparent or stepparent at home, can be arrested for domestic violence in Georgia. Those 17 and older will be in the regular criminal justice system, and those 16 and under in juvenile court.
Defenses to Domestic Violence in Georgia
A partial list of recognized criminal defenses in Georgia to any crime include this long list of possible legal theories your domestic violence attorney may utilize:
- Self-defense (no obligation to retreat if first attacked by another)
- Use of reasonable force to defend property or others (e.g., a mother protecting children)
- Alibi, or basically showing that the alleged perpetrator was somewhere else at the time of the alleged attack and that the complainant has made up a story to put the other person in jail and get a protective order
- Justification of the accused person, considering what happened initially by the conduct of the alleged “victim.”
- Use of force in defense of a person’s habitation
- Impossibility, which is a rarely used defense in domestic battery or assault case, but possibly could pertain to impotency
- Multiple criminal complaints arising out of the same alleged conduct on a certain date
- Involuntary intoxication, such as taking Ambien (generic is “zolpidem”) or other sleep meds for the first time, and “sleep-walking” leading to a physical attack
When Children Are Present: Child Cruelty Charges
The other thing to be aware of is that if a person has a child under the age of 14 who hears the people involved in an argument or witnesses it, this person could be charged with child cruelty in the third degree, which is a misdemeanor.
Simply having a fight in the presence of a child, in addition to the domestic violence or family violence battery charge, can result in a child cruelty charge. If you have been charged with either of these crimes, contact a Georgia domestic violence lawyer right away.
Penalties for Family Violence in Georgia
A person would not be charged with both domestic violence and assault. It is essentially the same charge but punished differently (and with more Court options) when connected with a family violence crime. Domestic violence cases are treated very differently from assault cases. This is because the court believes that if the people know one another, a greater chance exists that additional, future problems may arise.
So, the legal penalties and punishment consequences are more serious for domestic violence charges than for assault charges between strangers. For example, a second offense for family violence battery will be charged as a felony. Yet, between non-family members, two acts of assault or simple assault do not immediately lead to a felony charge, absent egregious circumstances.
Domestic Violence Fines and Potential Jail Time
Georgia takes acts of domestic violence seriously and will punish crimes involving family violence more harshly than acts committed by people with no personal or domestic relationship. Fines and imprisonment periods for domestic violence crimes are higher or longer than the identical crime committed between strangers.
An assault that might typically be treated as a misdemeanor offense in GA becomes a high and aggravated misdemeanor when it occurs between individuals with a family connection or domestic relationship. The potential fine for “high and aggravated” crimes is $5,000.00 (plus surcharges) with a maximum jail sentence of 12 months in custody.
An initial domestic violence battery charge is a $1,000 fine with a maximum of 12 months in jail, but subsequent convictions of family violence are treated as felonies with the possibility of being sentenced to five (5) years in state prison.
Possible Loss of Certain Parental Rights But Not Being Relieved of Child Support and Maintenance
Domestic violence convictions can lead to loss of custody of a child or children. As part of new Georgia laws, a police officer who is responding to a domestic altercation is required to complete a family violence report. This will detail the allegations, document physical bruising or bleeding, identify the nature of the abuse and (most importantly) state whether any children witnessed or overheard the argument, dispute or attack.
The victim of domestic violence is also able to receive a protective order that includes having no contact with the alleged perpetrator’s minor children. Once a judicial protective order is issued and served upon the alleged perpetrator, subsequent attempts to contact the child or other victim is a misdemeanor crime in GA that may be punished with a $1,000 fine (plus applicable State surcharges) and incarceration for up to 12 months in jail.
Under Georgia law, two types of Family Violence Protection Orders must be considered:
- A temporary ex parte order (temporary restraining order or “TRO”) that is automatically in place for 30 days, unless extended by the Judge for good cause shown; and
- Family Violence Protection Orders
Even if the protective order is not extended past the thirty-day emergency period it is difficult for a person who has a domestic violence conviction to convince a court to allow him or her to have joint physical or legal custody of minor children. The answer to this common question is that it IS POSSIBLE to lose most parental rights while still being responsible for paying child support.
The defense strategy used by attorneys generally does not differ whether someone’s charged with just assault or the full domestic violence or family violence battery charge. The main difference is who the witnesses are, but the strategy itself is not different.
Usually, if the people know one another, as within a domestic violence case, there is a definable instance that caused the fight. There is some sort of problem that is underlying the whole violent exchange. For stranger-on-stranger conduct, usually, the event occurred in reaction to something happening or drunken stupidity.
FREE Consultation with a Domestic Violence Attorney Near Me
For a FREE lawyer consultation, dial our law office NOW: 404-567-5515. Out law firm TRAVELS statewide to represent accused citizens facing family violence charges. Our partners are 24-hour lawyers, when you need our legal advice and assistance.
For other related, important Resources on various related topics for sexual abuse, identifying abusive behavior and obtaining protective orders, see these links:
DOWNTOWN ATLANTA GA LOCATION (about 1 mile away from Atlanta Courthouse and within a 15-minute walk):
235 Peachtree Street NE
Atlanta, GA 30303
MAIN LAW OFFICE IN SANDY SPRINGS, GEORGIA (just south of where I-285 crosses Roswell Road):
5590 Roswell Road
Sandy Springs, GA 30342
MARIETTA, GA COBB COUNTY LOCATION:
109 Anderson Street
Marietta, GA 30060
ALPHARETTA-ROSWELL-MILTON GA LOCATION in North Fulton County, GA:
1001 Cambridge Square
Alpharetta, GA 30009