What is Domestic Violence?

by Attorney Howard F. Dworman

Under Arizona law, “Domestic Violence” (“DV”) is not a crime, it is an enhancement. It is vital for you to understand “Domestic” and “Violence” are separate words.

 

“Domestic” is defined by the relationship. DV enhancements are proscribed through A.R.S. §13-3601(A) and described as “relationships” between the defendant and victim. The types of relationships are:

  1. Married, or have been married, or merely lived together at any time.
  2. Have a child in common.
  3. Either defendant or victim is pregnant by the other person.
  4. Related by blood or through law (i.e. marriage): Parent, grandparent, child, grandchild, sibling. Including “step-“parents, grandparents, children, and siblings.
  5. Victim is a child who currently or formerly lived with the defendant AND related to defendant’s former spouse OR to any person who has lived with the defendant.
  6. Current or Former romantic/sexual relationship (i.e. significant others).
    • Factors that may be used to determine if the relationship qualifies:
      • Type of relationship.
      • Length
      • How frequent the victim and defendant interacted with each other.
      • How long has it been since the relationship ended (if it ended).

Violence” is behavior or criminal acts.   Arizona identifies several crimes, both felonies and misdemeanors.   Some of the several crimes are: assault; criminal damage; disorderly conduct; and even first-degree murder, which Arizona law can attach a DV enhancement.

I’ve been throwing around the word “enhancement” a lot.   You are probably wondering, “what do you mean “˜enhancement?'”   There are several ways an offense can be identified as DV, but the enhancement(s) are the most important because, here, enhancement is synonymous with direct and collateral consequences.

  1. Pursuant to A.R.S. §13-3601.02, any (misdemeanor or felony) DV enhanced crime can be a class 5 felony “Aggravated [DV]” ( §3601.02(F)) if the defendant:
    • Commits a 3rd or subsequent DV violation within 7 years either in Arizona or anywhere else in the United States, including tribal courts.[1] §3601.02(A).
      • Must serve “not less than [4] months in jail” before being placed on community supervision (parole or probation), pardoned, or received a commuted sentence. §3601.02(B).
    • Commits a 4th or subsequent DV violation within 7 years either in Arizona or anywhere else, must serve “not less than [8] months in jail.” §3601.02(C).
      • Arizona uses the offense date(s) to determine the 7-year gap. §3601.02(D).
        • Understand this enhancement is offense-date driven, not conviction date, is crucial. I cannot tell you how many clients meet with us and are shocked to learn this is the only reason their offense (usually a misdemeanor) is being charged as an Aggravated felony requiring mandatory jail time.
  2. Pursuant to §3601(L) and (N):
    • If the victim was pregnant at the time of the offense, the “court shall [] consider[] the fact . . . and may increase the sentence.”
    • If the defendant committed a felony against a pregnant person and knew the victim was pregnant, “the maximum sentence SHALL be increased by [2] years.”
  3. Collaterally, the defendant WILL LOSE THEIR GUN RIGHTS. Yes, even for the defendant’s first and only misdemeanor DV offense.   Pursuant to 18 U.S.C. §922(g)(9), “It shall be unlawful for any person who has been convicted in a court of a misdemeanor crime of domestic violence to . . . possess any firearm or ammunition. . . .”   More commonly known as part of “The Brady Handgun Violence Prevention Act” which was signed into federal law on November 30, 1993.

domestic violence

Offense Classifications and Punishments

American jurisprudence requires punishment for a person convicted of committing a crime.   Arizona’s laws afford a variety of punishments, many of which focus on rehabilitation.   Let’s face it, chances are – even if convicted – the defendant is likely to re-join society.   In a lot of cases, the defendant is not in-custody prior to conviction (other than their arrest date) or the defendant will be released after serving their sentence.   Noted, all punishments will require the defendant to pay the victim restitution.

Misdemeanors:

  • Arizona has 3 misdemeanor classes, the highest is a class 1 and is punishable by up to: 6 months jail, 3 years on probation, and $2,500.00 in fines and fees.

Felonies:

  • Arizona has 6 felony classes, other than first-degree murder (class 1), the highest is a class 2 felony. Felonies have a wide range of punishments including: not less than 1 year in prison, probation, and fines and fees.

Misdemeanors and some felonies are eligible for “Diversion” programs.   Diversion programs are designed to focus on two things: 1) rehabilitate the defendant: provide the defendant with tools to prevent the behavior from being repeated; 2) make the victim whole: ensure the defendant financially reimburses the victim for any financial loss incurred as a result of the defendant’s behavior.   Upon successfully completing a diversion program, the defendant’s case is dismissed with prejudice (the charges can never be brought again).

  • Noted, a defendant charged with Aggravated DV because the charge is the 3rd or subsequent, is highly unlikely to receive a diversion program.

Probation will include a variety of terms and conditions.   Generally, the defendant will be required to meet with a probation officer, who is responsible for monitoring the defendant’s progress and reports directly to the sentencing court.   For felonies, most counties in Arizona have specific probation terms for DV offenses (DV terms) and include being placed that county’s Domestic Violence Court Program.   Some of the DV terms usually include: complying with the Probation department; no contact with the victim (directly or through a third-party) without written permission from the court and probation department; participate and successfully complete a counseling program; submit to psychological testing as directed; notify the probation department of any intimate/romantic relationships and inform the partner(s) why you are on probation; 4 months jail (deferred) and can be served in any increment the court sees fit to impose, if any.

A defendant placed on DV probation usually is supervised by a probation officer and will be monitored by a surveillance officer.   “Supervised” and “monitored” sound like the same thing, right?   I agree, but in this context, they are very different – almost mutually exclusive.   The defendant will most likely see their surveillance officer in the field completing home visits, verifying employment, and verifying progress in treatment.   The defendant will most likely see the probation officer during in-office visits (the surveillance officer will be there too).   Only the probation officer can give the defendant orders – additional terms and conditions or instructions to complete certain terms at certain times.   The probation officer is also the only one who can submit documents to the court.

 

Defenses

Now, up to this point, we have discussed what the police need to develop probable cause to arrest someone (some evidence the defendant committed a crime listed in §3601(A) and a relationship listed in §B.   We also know some of the consequences the defendant faces if convicted.   There is one very important piece missing though.   We skipped the Prosecutor, the person who represents the People of Arizona and, more importantly, the victim.

The prosecutor must prove the defendant’s guilt beyond a reasonable doubt; each element of each crime must meet the burden for a judge or jury to convict the defendant.   Misdemeanor DV offenses do not afford the defendant a jury trial; all felonies require a jury (unless waived – a topic for another time).

I want to use some plain language to help guide you along as you read about the majority of defenses to DV accusations.   I am going to explain away some myths (I think).   The victim does not need to testify against the defendant; unfortunately, victims change their story often and sometimes refuse to aid in prosecution or appear in court.   This is not a guaranteed or absolute defense.   Justification defenses hinge on a couple of things: immanency and reasonableness.   Said another way, the question presented to a jury will be, “Do you believe the defendant acted reasonably?   Do you believe the defendant’s acts were in response to an immanent threat?”   Okay, let’s dive into these common defenses.

Let’s discuss some common defenses to DV allegations:

  1. Victim is uncooperative/does not desire prosecution.
    • While this defense appears strong, it is not a guarantee and the prosecutor may not be inclined to dismiss the case merely for this reason. Often, victims refuse to cooperate with the prosecutor.   Sometimes, the victim even recants their original statement to police (usually the day of the offense).   After all, every defendant enjoys the Right to Confront their Accuser, right?     Yes they do, BUT the prosecutor does not need the victim to testify.   Exceptions to many evidentiary rules allow the prosecutor to illicit testimony, and offer the evidence, from a competent witness.   Moreover, if the defendant causes the victim to change positions, the defendant’s Right to Confront is waived.   However, an uncooperative or recanting victim may still present serious mitigating factors which a good lawyer will present to the prosecutor.   The prosecutor may be inclined to dismiss the case, or offer a diversion program (basically the same result), or some other offer the defendant and victim can agree with.   (I will explain why I included “victim” in that sentence in a moment).
  2. Statutory defenses, a.k.a. Justifications:
    • Use of Physical Force R.S. §13-403(1) and (4)
      1. “A parent of guardian . . . of a minor . . . may use reasonable and appropriate force upon the minor . . . when and to the extent reasonably necessary and appropriate to maintain discipline.” 403(1).
      2. “A person acting under a reasonable belief that another person is about to commit suicide or [otherwise cause themselves serious physical harm] may use physical force upon that person to the extent reasonably necessary to [stop it].” 403(4).
    • Self Defense R.S. §13-404(A)
      1. “A person is justified in threatening or using physical force . . . when and to the extent a reasonable person would believe the physical force is immediately necessary to protect him[/her]self from [the] other [person]. . . .”
        1. IMPORTANT – Mere words alone are not enough to justify self-defense.
        2. IMPORTANT – “immediately necessary” means imminent.
    • Use of Deadly Physical Force – WHEN APPROPRIATE R.S. §13-405(A)(1) and (2)
      1. “A person [may] threaten or us[e] deadly physical force, IF [ §404] applies AND . . . to the degree a reasonable person would believe deadly physical force is immediately necessary. . . .”
    •  Defense of Premises R.S. §13-407
      1. “A person . . . in lawful control of premises is justified in threatening to use deadly physical force[,] or threatening or using physical force . . . when and to the extent a reasonable person would believe it immediately necessary to prevent or terminate a criminal trespass[, including an attempted criminal trespass].”
    • Defense of a Third Person R.S. §13-406
      • “A person is justified in threatening or using deadly physical force to protect a third person IF, under the circumstances as a reasonable person believes them to be, [the third person] would be justified under §404 or 405 . . . against unlawful physical force or deadly physical force a reasonable person believe[s] the third person [is in danger].”
    • Use of Force in Crime Prevention R.S. §13-411
      • “A person is justified in threatening or using both physical force and deadly physical force . . . IF AND TO THE EXTENT the person believes [the] force is immediately necessary to prevent the OTHER’S commission of Arson, Burglary, Kidnapping, Murder/Manslaughter, Sexual Conduct with a Minor, Sexual Assault, Child Molestation, Armed Robbery, or Aggravated Assault.
        • IMPORTANT – No duty to retreat.
    • Domestic Violence as a Justification R.S. §13-415
      • “If there have been past acts of domestic violence . . . against the defendant by the victim, the STATE OF MIND of a reasonable person under §404, 405, and 406 SHALL be determined from the perspective of a reasonable person[, similarly situated].

Victims

When police officers are called to a DV situation, the police are required to give the potential victim a written document which provides information.   The information includes: obtaining an Order of Protection or Injunction Against Harassment; phone numbers for local police and local emergency services; and website addresses for local DV resources.   §3601(J).

Also, Arizona codified specific Victim’s Rights in the Arizona Constitution, known as the “Victim’s Bill of Rights.”   AZ Const. Art. 2 §2.1.   While there are several Rights, I am going to highlight what are arguably the most important.

  • To be informed when the defendant is released from custody or escaped.
  • To be present at all criminal proceedings where the defendant has a right to be.
  • To be heard at any proceeding involving a release, plea agreements, and sentencing, and post-sentence hearings such as probation violation or release on parole.
  • To refuse any pre-trial defense interviews.
  • To receive prompt restitution from the defendant.
  • To a speedy resolution.

Victims are heard.   The Arizona Constitution requires all criminal courts and prosecutors afford the victim an opportunity to give input.   Victims are encouraged to maintain an active role in the case and communicate with the prosecutor, usually through a Victim’s Advocate.   As mentioned above, victims do not have the authority to dismiss the case; prosecutors charge cases and judges dismiss them.

Some victims choose to hire an attorney to fight for, and protect, their guaranteed Rights.   Victimization of any kind is an emotional experience.   Certainly, being the victim of DV is no exception to those emotions.   We represent DV victims for various reasons.   Some victims feel their voice is not being heard and want an attorney to appear on their behalf; victims want motions filed on their behalf; victims love the defendant and want the defendant to receive help instead of punishment.   Whatever the reason, the attorneys at the Attorneys For Freedom law firm support and fight for Victim’s Rights.

domestic violence

Important Facts; Common Questions; General Advice[2] – Applies to Victims and Defendants

 

  1. As of 2019, The S. Dept. of Justice provided the following facts/statistics:
    • 40% of on-duty officer deaths are related to responding to DV calls.
    • There are approximately 3,000,000 (3 million) DV incidents reported each year.[3]
    • Each year, 4,000 DV victims are killed during the incident, or as a result.
    • 53% of battered women blame themselves for the defendant’s behavior.
  2. Police take DV calls, and respond to them, very seriously.
    • The most recent DV incident in Arizona occurred on March 29, 2020 – during the Covid-19 pandemic.
      1. The call did not involve intimate or romantic partners.
      2. The police were called because a group of roommates wanted to evict their 22-year old roommate.
        1. The 22-year old had displayed behavioral issues and his roommates no longer wanted him in their home.
        2. The 22-year old male was eventually killed by police officers.
      3. Upon arrival, the officers contacted the victims and suspect.
      4. The situation appeared relatively calm; the 22-year old packed up his belongings and started to leave.
      5. Upon returning to the home, to grab more items, the 22-year old exited and began shooting at police officers.
    •  Three officers were shot:
      1. A 22-year old female officer – on duty for 2 years at the time – survived.
      2. A 23-year old female officer – on duty for 3 years at the time – survived.
      3. A 56-year old male officer – Commander Greg Carnicle – on duty for 31 years and mere months away from retiring was killed.
  3.  The police were called to my home for a DV matter and they are here now. What do I do?
    1. Chances are, if for no other reason, the police will detain you for safety reasons. Usually, you will be handcuffed and separated from everyone else.
    2. Rule #1Just shut up!”
      1. It is at this point you want to politely and respectfully explain to the officer(s), you want to call an attorney and will not answer any questions without your attorney present.
    3.  Remain Calm
    4. Identify yourself – refusing may be a crime itself.
      1. Pursuant to A.R.S. §13-2412, “you must provide your true full name on request of [law enforcement when you are] lawfully detained . . . based on reasonable suspicion a crime is, has, or will be committed.
    5.  Have nothing in your hands.
    6. If you have weapons in the home:
      1. Tell the police where the weapon is.
        1. Should be safely put away (i.e.- a drawer, closet, safe, etc.).
        2. What type of weapon is it/are they.
        3. How many weapons.
        4. How many people are in the home.
    7.  Cooperate – to an extent.
      1. Nearly all (if not, all) police departments have policies requiring an arrest for all DV calls.
      2. If you are going to be arrested, be cooperative; polite; calm, BUT DO NOT MAKE ANY STATEMENTS – See Rule #1.
        1. Do not fight with the police – doing so could result in additional and potentially worse charges.
        2. Do not flee or attempt to flee – doing so could result in additional and potentially worse charges.
        3. Do not argue with the officer.
          1. You are not going to talk your way out of being arrested. I assure you, the officers decided, long before you were being told, they were going to arrest you.
          2. You are not going to convince the police they shouldn’t arrest you.
            1. Again, see Rule #1.
      3. As to speak with an attorney before answering any questions.
    8. If for reason you forget Rule #1, the police will remind you:
      1. “You have the right to remain silent,” “anything you say will be used against you.”
      2. “You have the to speak with an attorney before questioning.”

Howard Dworman, Esq.

 


[1] To determine if the out-of-state conviction qualifies as DV under Arizona law, Arizona applies the out-of-state’s statute(s) to the Arizona Revised Statutes.   Said another way, even if the conviction was not considered a DV offense in another jurisdiction, Arizona may consider the offense a DV offense and apply it accordingly.

[2] Every case is unique; this advice is not directed to any specific person or set of facts.   This advice should be relied upon only for foundational purposes.   Contact an attorney, if you can/have time, before you do anything.

[3] Statistics are only taken from criminal activity actually reported.   Not all criminal activity is reported to law enforcement.