When most people think about domestic violence situations, it usually involves an abusive man and a female victim. However, domestic violence can happen in any kind of close relationship, including female-on-male violence or violence between same-sex partners. Sometimes the police and prosecutors take too narrow an approach to domestic abuse situations, where the victim of abuse is facing criminal charges.
Even if your partner doesn't want to press charges, you can still be prosecuted. California's mandatory arrest policies and criminal prosecution means the state will make an arrest if there is a suspicion of abuse. The prosecutor can even take the charges to court even without the support or testimony of the alleged victim.
If you were arrested for domestic battery in California, make sure you understand your rights. A domestic violence conviction can mean jail time, a permanent criminal record, and loss of your rights. For legal advice about a DV charge in the East Bay, contact the Gorelick Law Offices for help.
Domestic Violence in the LGBTQ+ Community in California
Under California law, domestic violence involves assault or battery against a person with whom the other has a close family or intimate relationship. Domestic violence charges can involve relationships like:
- Spouse or former spouse
- Cohabitant or former cohabitant
- Someone in a current or former dating relationship
- One has a child with or is having a child with
- Fiancé or fiancée
Domestic violence can include more than just physical assault or battery, it can also include harassment, stalking, psychological aggression, and sexual abuse. The Centers for Disease Control and Prevention (CDC) conducted a National Intimate Partner and Sexual Violence Survey with findings on sexual violence among gay, lesbian, and bisexual women and men in the U.S.
According to the survey, the lifetime prevalence of rape, physical violence, and/or stalking by an intimate partner was:
- For women:
- Lesbian – 43.8%
- Bisexual – 61.1%
- Heterosexual – 35.0%
- For men:
- Gay – 26.0%
- Bisexual – 37.3%
- Heterosexual – 29.0%
According to the findings, bisexual women had a much higher lifetime prevalence of sexual violence, physical violence, or stalking by an intimate partner compared to lesbian and heterosexual women. Bisexual women are twice as likely to experience stalking compared to heterosexual women. Transgender individuals may also be more likely to experience intimate partner violence in public.
Given these findings, law enforcement and the criminal justice system should reflect how domestic violence cases are handled for partners in LGBTQ+ relationships.
Mandatory Arrest Policies in California for Domestic Violence
Under California Penal Code Section 13701, "The written policies shall encourage the arrest of domestic violence offenders if there is probable cause that an offense has been committed."
Police officer domestic violence training informs officers that the sexual preference or orientation of the people involved should not be used to avoid making an arrest. However, some police officers still consider sexual orientation, whether consciously or not. California's arrest policies can mean the wrong person ends up under arrest when accused of domestic violence.
According to the National LGBT Health Education Center, "police are more likely to make a dual arrest in cases of same-gender intimate partner violence compared to heterosexual cases." Police can misinterpret the dynamics of pattern violence in LGBTQ+ relationships. Many people report hostility from law enforcement when involved in domestic violence police calls. Even judges can be more likely to issue mutual restraining orders to same-gender partners.
The Costs of a Domestic Violence Conviction
There are severe penalties involved in a domestic battery offense. Under Penal Code Section 243(e)(1), domestic battery is punishable by fines of up to $2,000 and up to one year in prison. In addition to jail time and fines, consequences of a domestic violence conviction can include:
- Criminal protective order (CPO)
- Probation
- Batterer's treatment program
- Community service
- Substance abuse treatment
- Victim restitution
- Payment to battered women's shelter
Under California Penal Code 29805(a), anyone convicted of misdemeanor domestic battery under PEN 243 is prohibited from owning, purchasing, possessing, or receiving a firearm for 10 years. Possession of a firearm in violation of this law is punishable by not more than one year in state prison and a fine of up to $1,000.
Under California Penal Code 29805(b), anyone convicted of domestic battery with traumatic injury under PEN 273.5 is prohibited from owning, possessing, purchasing, or receiving a firearm.
There can also be immigration consequences for non-citizens or LPRs convicted of domestic violence. Domestic violence, stalking, and violation of a protective order are deportable offenses under federal immigration laws.
Many people forget about the social costs of a domestic violence arrest. Even if the person is never charged or convicted of a crime, simply being arrested can hurt your reputation. Many people in the LGBTQ+ community rely on their friends and support groups, especially when they have been turned away by family members. An accusation of domestic battery, even if it turns out to be false, can ruin their relationships with friends and others in the same community.
How Can I Defend Against Domestic Violence Accusations?
You need to take domestic violence accusations seriously. The police can arrest you even without proof that you did anything wrong. The police don't need to even see physical marks of abuse to make an arrest. The police may also arrest the wrong person or both parties because they have prejudices or preconceptions about people based on their perceived sexual orientation.
Domestic violence charges can mean jail time, probation, and a permanent criminal record. Talk to an experienced East Bay domestic abuse defense attorney for legal advice. There are defenses to domestic battery charges, including:
- Self-defense
- Defense of another
- The alleged victim was the instigator
- False accusations
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 39 years of domestic violence defense experience and understands the challenges involved in California domestic violence cases in the LGBTQ+ communities.
