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Does Domestic Violence Have to Be Physical?

Domestic violence is a serious crime in California but the term can be thrown around to include things that are not crimes. In general, domestic battery requires physical force. Calling someone names is generally not a crime. If someone is accusing you of domestic violence, you need to take their allegations seriously or you could end up convicted of domestic violence.

If someone accuses you of domestic abuse and you never hurt anyone, you should not plead guilty to domestic battery. Just because you are accused of abuse or arrested for domestic abuse does not mean you have to be convicted. If you want to know more about your legal rights after a domestic violence arrest in the East Bay, contact the Gorelick Law Offices for help.

Domestic Battery and Traumatic Injuries

Domestic abuse can be different from domestic violence. There are many types of abuse but not all abuse is a crime. Physical abuse and sexual abuse are criminal offenses. However, emotional abuse or psychological abuse are not always crimes. It is important to understand the differences between domestic battery and domestic abuse. 

According to the National Domestic Violence Hotline, there are different types of abuse, including: 

  • Physical abuse
  • Emotional and verbal abuse
  • Sexual abuse
  • Financial abuse
  • Stalking

Physical abuse is generally a crime in California. Even when physical abuse is not in a domestic situation it can be charged as assault or battery. Sexual abuse is also a crime, and can be charged as rape, sexual battery, or sexual assault. Financial abuse can involve crimes of theft or larceny. Stalking can also be a crime. With emotional abuse, it can depend on the situation.

Under California Penal Code 273.5, domestic battery involves inflicting corporal injury resulting in a traumatic condition. A traumatic condition means "a condition of the body, such as a wound, or external or internal injury, including, but not limited to, injury as a result of strangulation or suffocation, whether of a minor or serious nature, caused by a physical force." 

An injury does not have to be serious to be considered abuse. A traumatic condition could be minor but generally has to be caused by physical force. 

When Is Emotional Abuse a Crime?

Emotional abuse and verbal abuse can be hurtful for the alleged victim of abuse but it is not always a crime. Under California Penal Code 13700, abuse can include causing bodily injury or "placing someone in reasonable apprehension of imminent serious bodily injury." 

Imminent bodily injury could involve the victim or another person. If you threaten someone with harm and they reasonably believe they or someone else is going to suffer serious bodily injury, it can be abuse even if there is no physical contact. This is similar to the criminal charge of assault. 

Many people think of assault and battery as the same thing but assault does not require any physical contact. Assault can be considered like making someone think they are going to be a victim of battery. Under California Penal Code 240, "an assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another."

The threat of contact does not have to be violent. For assault, contact can be harmful or offensive. Offensive touching is something that would offend a reasonable sense of personal dignity. However, words alone do not amount to an assault. 

Stalking Does Not Have to Be Physical

Stalking can be a type of domestic abuse and stalking is a crime in California. Stalking does not have to involve any physical contact between the stalker and victim. Stalking can include internet contact or online harassment.

Under California Penal Code PC §646.9, any person who willfully, maliciously, and repeatedly follows, or harasses another person and who makes a credible threat with the intent to place that person in reasonable fear for their safety, or the safety of their immediate family is guilty of the crime of stalking.

For the crime of stalking, harassment means a willful course of conduct directed at a specific person that seriously annoys, alarms, torments, or terrorizes the person and serves no legitimate purpose. A credible threat can include any verbal or written threat, including online threats, to make the target fear for their safety or the safety of their family. 

Stalking is a wobbler offense, and can be charged as a misdemeanor or a felony, depending on the situation. The penalties for stalking can include imprisonment a year or more jail and a fine. Stalking can also result in a temporary restraining order and stalking in violation of a restraining order is generally a felony crime. 

Defending Against Domestic Violence Charges

There are defenses available for someone who is falsely accused of domestic violence. Unfortunately, many people plead guilty to domestic violence because they don't think they have any other choice. A domestic battery conviction will put a permanent mark on your criminal record and may impact your ability to get a job in the future. 

Defenses to domestic battery charges can include self defense or defense of others. If someone else put you at risk of harm and you only defended yourself, you should not be convicted of domestic battery. If you were only acting to protect others, that can also be an affirmative defense to domestic battery charges.  

Just because you were arrested for domestic violence in California does not mean you have to plead guilty. A strong legal defense can help you avoid a conviction and get back to your normal life. Your attorney may also be able to negotiate your case with the prosecutor to reduce the charges and penalties. 

East Bay criminal defense attorney Lynn Gorelick has more than 40 years of domestic violence defense experience and understands the challenges involved in California domestic violence cases in Oakland and the East Bay.

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