Misdemeanor Domestic Violence: What Are the Consequences and What Does the Prosecutor Have to Prove?

A person convicted of misdemeanor domestic violence under Penal Code §243(e)(1) may be punished by:

• Imprisonment in county jail for up to one year;[i]
• A fine of up to $2,000;[ii]
• Both jail time and the fine;[iii]
• A criminal protective order that prohibits contact with the victim for up to 10 years;[iv]

If granted probation[v], the person will not go to jail[vi]. But, in exchange, he must comply with several conditions that include:

• Completion of a 52-week batterer’s treatment program;[vii]
• Payment of a fee of at least $500 that goes toward various state-run, domestic violence-specific funds; [viii]
• A fine of up to $2,000 or, in the alternative, payment to a battered women’s shelter and/or reimbursement of the victim’s counseling and other related expenses;[ix]
• A criminal protective order that prohibits contact with the victim for 3 to up to 10 years.[x]

Also, whether granted probation or not, once convicted, the person must:

• Pay a restitution fine that can range from $150 to $1,000;[xi] and
• Reimburse the victim for any economic loss he has caused (such as property damage, medical expenses).[xii]

Proving the Charge of Misdemeanor Domestic Violence

First, the prosecutor must establish that a person shared an intimate relationship with the alleged victim. Specifically, the alleged victim must be[xiii]:

• A current or former spouse;
• A current or former fiancé;
• Someone that a person currently cohabitates with;[xiv]
• The parent of a person’s child; or
• Someone with whom a person currently or previously had a dating relationship with.

Second, the prosecutor must prove that a person battered the alleged victim. The word “battered” may conjure up images of a face that is bloodied and bruised. But, under California law, a “battery” means any touch that is done in a harmful or offensive manner.[xv]  Even the slightest touch — one that does not injury the alleged victim or cause her pain — counts as a “battery” if it is done in a rude or angry way.[xvi]

Are There Any Defenses to an Allegation of Misdemeanor Domestic Violence?

Yes. There are times when a person can use force to defend himself or others from an alleged victim.[xvii] However, self-defense is a fact-dependent defense and should not be asserted until thoroughly discussed with a criminal defense attorney.

An alternate strategy is to highlight the lack of evidence that corroborates the alleged victim’s accusation. Just because a person has been charged with a crime does not mean that he is guilty.[xviii] In fact, the opposite is true: the person is presumed innocent unless the prosecutor can prove the person’s guilt to a jury.[xix]

The presumption of innocence is critically important in the context of domestic violence, which is a crime that often occurs in the privacy of the home. Accusations are easy to make in such an environment, especially by those who have succumbed to vindictiveness.

The absence of corroborative evidence — such as photographs of the victim’s alleged injuries, testimony from a third party who witnessed the incident, text messages or voicemails from the accused person — makes an accusation of domestic violence less credible. An accusation can be further undermined by emphasizing the alleged victim’s lack of credibility[xx] as well as the absence of any domestic violence in the background of the accused person.

Conclusion

Suffering a conviction for misdemeanor domestic violence can result in serious consequences. However, a mere accusation does not guarantee a conviction. Defenses are available to the accused person, and the prosecutor is still required to marshal enough corroborative evidence to prove that domestic violence actually occurred. And, with the help of a skilled criminal defense attorney, accusations motivated by vindictiveness, rather than corroborated by evidence, can be exposed as not credible.