In Washington State, there is no crime of Domestic Violence. Rather, Domestic Violence is a tag that is put on other crimes indicating that there is a family or household relationship between the parties involved. Most jurisdictions will impose a No Contact Order that prohibits the defendant in a Domestic Violence (“DV”) case from having contact with the alleged victim of the crime. The order will often prohibit contact with the victim’s children, residence and place of work too.
Family or household relationship
According to RCW 10.99.020(3), family or household members is defined as:
[S]pouses, former spouses, persons who have a child in common regardless of whether they have been married or have lived together at any time, adult persons related by blood or marriage, adult persons who are presently residing together or who have resided together in the past, persons sixteen years of age or older who are presently residing together or who have resided together in the past and who have or have had a dating relationship, persons sixteen years of age or older with whom a person sixteen years of age or older has or has had a dating relationship, and persons who have a biological or legal parent-child relationship, including stepparents and stepchildren and grandparents and grandchildren.
As you can see, this definition is extremely broad. It is far more inclusive then what most people would expect it to be. The same is true for the types of crimes that are labeled “Domestic Violence.” Most people only think of Assault when it comes to domestic violence, however there are many other crimes that can carry the DV tag.
According to RCW 10.31.100(2)(c), an officer must make an arrest if: The person is sixteen years or older and within the preceding four hours has assaulted a family or household member as defined in RCW 10.99.020 and the officer believes:
(i) A felonious assault has occurred;
(ii) an assault has occurred which has resulted in bodily injury to the victim, whether the injury is observable by the responding officer or not; or
(iii) that any physical action has occurred which was intended to cause another person reasonably to fear imminent serious bodily injury or death. Bodily injury means physical pain, illness, or an impairment of physical condition. When the officer has probable cause to believe that family or household members have assaulted each other, the officer is not required to arrest both persons. The officer shall arrest the person whom the officer believes to be the primary physical aggressor. In making this determination, the officer shall make every reasonable effort to consider:
(i) The intent to protect victims of domestic violence under RCW 10.99.010;
(ii) the comparative extent of injuries inflicted or serious threats creating fear of physical injury; and
(iii) the history of domestic violence between the persons involved.
If you get arrested for a crime involving domestic violence, a No Contact Order will slam into place almost immediately.
No Contact Orders
There are two types of No Contact Orders in Washington State: Pre-Trial and Post Conviction. Both types of orders prevent the defendant from having contact with the alleged victim. However, neither type prevents the victim from trying to have contact with the defendant, since only the defendant goes to jail if the order is violated. In other words, the No Contact Orders limit only the defendant’s behavior.
Pre-Trial Orders are issued against the defendant (sometimes called a Respondent) before he or she is convicted of having done anything wrong. These orders can preclude contact between the Respondent and the alleged victim of the crime, the victim’s children (even if they are the Respondent’s children too), the victim’s place of work and the victim’s home (even if it’s the Respondent’s home too).
In other words, these orders can force you away from your home and your kids before you have even been convicted of a crime. This is true even if the victim says that nothing happened or that whatever did happen was blown all out of proportion.
Pre-trial orders stay in place until there is a resolution to the criminal case or until a Judge lifts it.
A No Contact Order issued after conviction can carry the same types of restrictions that a Pre-Trial order does. Post-Conviction Orders are generally good for a year, however a Judge can extend that if he or she feels that the facts warrant it.
Since a No Contact Order can preclude you from going to your own home, the Courts will generally allow you one trip home to get clothes and a few personal items. However, you must be accompanied by a Law Enforcement Officer. This process is called a “Civil Standby.” You must contact the law enforcement agency and schedule a time for the Civil Standby. Be aware, however, that this is a low priority action for most law enforcement agencies, so the civil standby will only be done when they have the time to spare.
Violating a No Contact Order
A willful violation of a No Contact Order is a gross misdemeanor; which means that you can get up to a year in jail and a $5,000 fine. Since violating a Domestic Violence No Contact Order is itself labeled a crime of domestic violence, your rights to own or possess firearms will be forfeited upon conviction – even if no gun was used, possessed, mentioned or in any other way used or contemplated. This is true even where the underlying criminal case, which caused the No Contact Order to be issued, is dismissed.
Being in a public place, even the courthouse, is not a defense to violating the order. This means that if an order is issued against you and you see the protected person at a grocery store then you must leave. Inadvertent contact may technically not violate the order, but you may well have to go in front of a Judge to defend yourself. Besides the stress involved, you may have to spend more money in order to hire an attorney.
Even if the victim invites the contact, the respondent can face jail time if the order is violated. What I see most often in my cases, is the following scenario:
Two people have a relationship. Something happens and the police are called. Because of everyone’s sensitivity to “Domestic Violence” the police err on the side of charging someone. A No Contact Order then slams into place, precluding the two people from having contact with one another. It may also make one of them unexpectedly homeless – but that is a different issue. People, being people, want to work the problem out and the alleged victim contacts the defendant and says something to the effect of “I’m so sorry that all of this is happening. Come home and I’ll make it worth your while.” The problem, of course, is that the defendant takes the alleged victim up on the offer. Generally, legal problems multiply for the defendant shortly thereafter as the happy couple go out to celebrate their rekindled relationship only to pull a “slow and go” at a stop sign – or some other minor traffic infraction. They then get stopped by the police. When the officer runs the occupants’ information, up jumps the No Contact Order and the defendant is arrested then taken to jail where he is now facing an additional charge.
Removing the Order
It is very difficult to remove a Pre-Trial No Contact order once it is in place. Even if the victim comes in and testifies before the Judge that the order is not needed, most Judges will leave the order in place.
One strategy is to have the defendant evaluated by a Domestic Violence Treatment Agency. If a counselor is willing to tell the Judge that the defendant would not pose a danger to the victim if the order is removed, then the Judge can eliminate the order. The Treatment Agency may want to get the defendant into classes before agreeing to make a recommendation to the Judge.
Another strategy is to ask the Court to modify the No C0ontact Order to allow marriage counseling. Some Judges will require that contact only be allowed while monitored by a third party from the treatment agency.
Once a No Contact Order has been modified to allow conditional contact, a Judge is more likely to remove the order later, unless there is a new problem.
Most Prosecutors’ Offices have a Domestic Violence Advocate. It is this person’s job to help the victim of a domestic violence offense understand what services are available to them and help keep them informed as the court process moves along.
I have seen numerous cases where the victim does not want the No Contact Order to be in effect. Going through the victims advocate person can sometimes be helpful.
Most courts have a form that the alleged victim can fill out requesting that the Judge drop the No Contact Order. In my experience, most Judges will maintain the order even after the victim asks to have it dropped. Even though the order remains in place, having the victim ask for it to be removed is still valuable, since it may be useful on a later attempt to remove the order.
Conviction for a crime labeled Domestic Violence will cause you to loose your right to own or possess firearms. This is a lifelong ban.
In one case I had, the husband was arrested for a Domestic Violence charge when, during an argument, he threw a bowl into their kitchen sink, chipping it. The argument was overheard by a nearby neighbor who called the police. The police arrived and when they looked in the sink, they found the chipped bowl and arrested the husband for domestic violence malicious mischief. There was no allegation that the husband threw the bowl at, or even near, his wife. Since Washington is a Community Property state, both the husband and the wife had an ownership interest in the bowl, thus by chipping his bowl, the husband damaged property belonging to another (i.e. his wife) and was therefore liable under Malicious Mischief. Without counsel, the husband (who had no prior criminal history) pled guilty at arraignment. He was given a one year No Contact Order which prevented him from going home for a year or having any contact with his wife.
Had the husband contacted an attorney prior to pleading guilty, he may not have had a conviction at all. Even if there was a conviction, an attorney could have helped him avoid such a long No Contact Order.
Copyright (c) 2007 The Cahoon Law Office – All rights reserved.