criminal domestic violence – what does the state have to prove?
In order for the state to prove a charge of domestic violence they really only have to prove that there was the requisite relationship (victim and defendant are/were married, live(d) together, have a child together) and that the victim was hurt or threatened to be harmed by the defendant, and the defendant had the ability to carry out the threat. For instance, if the defendant says he is going to shoot the victim, the victim must believe the defendant has a gun or can quickly get his hands on one.
However in many cases, the injury is slight or no injury at all. There is no requirement that the victim is injured. If a defendant shoots but misses, it is still a crime.
The state does not have to prove intent. What does that mean? It means that even if it was truly an accident, the state could still go forward with the case, especially if they don’t believe it really was an accident. The state does not have to show the defendant was mad at the victim, wanted to hurt the victim, or even that the victim felt it really was domestic battery (so long as there is a physical injury).
This produces many unjust arrests for domestic violence because every year there are numerous arrests based on the fact that the police saw an injury and the victim said a spouse caused the injury. Prosecutors are afraid to drop cases because if the victim does in the future get hurt by the defendant, the victim could point the finger at the prosecutor and say, “I was not protected the first time I was battered!” While there might be immunity from a lawsuit, the boss of the prosecutor must fire the prosecutor to look like they are on the side of justice.
First offenses usually don’t result in jail time, but these are very tricky and sticky cases, and defendants should not underestimate the potential impact to job/freedom/rights. Keep in mind a CDV 1 cannot be expunged for five years, and so long as that conviction stands, those defendants cannot own or possess firearms. A person charged with this crime should definitely hire an attorney.