The defense of domestic violence cases, misdemeanor or felony, is unlike any other field of criminal-defense law. If you need representation in this specialized field, call attorneys Mark & Jennifer Bennett at 713-224-1747.
Victimization & Vengeance
Most criminal cases are “victimless” — even if the crime was committed there is no injured person complaining. For example, DWI, drug cases, and prostitution are victimless crimes.
Assaults, robberies, rapes, thefts — these are crimes with victims. When the State of Texas accuses a person of one of these offenses, it alleges (and must prove) not only that the crime was committed, but also who it was committed against. Often this adds another factor to the equation;
- 1st because the alleged victim often wants to get something — for example a sense of justice, safety, peace of mind, closure, or money — out of the prosecution (not the alleged victim in a murder case, obviously, but his family),
- and 2nd because the State of Texas has to rely on a witness other than a police officer to make its case.
Criminal Cases involving Domestic Violence
Family-violence cases are crimes with victims. The State has to prove that an assault (the intentional, knowing, or reckless causing of bodily injury) occurred, but also that it was committed against a family member.
Family members, or people who could be the considered victims of domestic violence according to the State of Texas, includes;
- a person who lives, or used to live, with the defendant,
- and a person who is dating, or used to date, the defendant,
- as well as a person who dates someone who used to date the defendant).
The relationship between the complainant (the alleged victim) and the defendant makes things even more interesting than most crimes with victims. The complainant and the defendant had a relationship before the alleged assault, and usually the alleged assault arose from and was because of that relationship — that is, if they hadn’t had the family relationship the defendant would never have been accused.
The Escalation of Domestic Strife
People in loving relationships often don’t treat each other as well as they should. Things get a little rough, then a little rougher, then out of control. They lose their tempers and hurt each other, physically or emotionally. They hit or choke each other, or they make false allegations. False allegations of family violence are by no means rare — women use their legal advantage (of making a phone call and being believed) to hurt their partners about as much as men use their physical advantage to hurt theirs.
In family-violence cases the relationship is always an added complication. Maybe the complainant has motivation to invent a story. Maybe she doesn’t, but regrets calling the cops. Maybe she just wants to get the defendant as far out of her life as possible. Maybe she is pressing for him to get the max. Maybe not.
Dropping Family Violence Charges
Often a woman will contact us after her husband has been arrested for assaulting her. “I just want,” she’ll say, “to drop charges.” “Dropping charges” so that the prosecutor does not prosecute a person is often not a simple matter.
The position taken by many prosecutors is that, once the victim has made the initial complaint, the case is not the victim’s to drop or continue. This position is technically correct. Especially in a family violence case, the state can prosecute a defendant, and possibly convict him, without the assistance and against the wishes of the victim. In such a case a wife can be forced to testify against her husband, and her initial report to the police or neighbors can be introduced as evidence against him. The government is trying to save battered wives from themselves.
There Are No False Allegations
District attorneys’ offices in some large counties — Harris County, TX included — even have employees whose job is to try to get recanting complainants to assist the prosecution; they will even threaten (though I have yet to see them follow up on the threat) to file criminal charges for making a false report against the recanting complainant.
The logic is that often battered spouses will get the batterers out of trouble, only to be beaten again or killed for their trouble. So as far as the DA’s family-violence prosecutors are concerned, there are no false allegations of family violence.
Immigrants & Domestic Assault
All of this is further complicated by the fact that, for immigration purposes, even a misdemeanor assault against a family member is an “aggravated felony,” for which a legal resident can be deported. Many women find themselves losing their husbands to deportation after a hastily-made accusation of abuse.
What’s more, a family-violence assault with any allegation of contact to the neck is going to be filed as a 3rd Degree Felony choking (Assault by Impeding Breathing) case. A conviction (including a deferred-adjudication probation) for even a misdemeanor family violence offense means that the next family violence allegation will be a 3rd Degree Felony.
Houston Domestic Violence Defense
There is no one-size-fits-all solution to domestic-violence cases. They require a lawyer with an understanding of human nature, the tools to turn it to his client’s advantage, and the flexibility to adjust to change course as required by the vicissitudes of emotion at the intersection of love and violence.
(Incidentally, in Harris County, TX, bonds on family violence assault cases are initially set at $50,000. Don’t make this bond before talking to us!)
Houston criminal law attorney Mark Bennett is interested in hearing from you if you or a loved was formerly charged with an assaultive offense based on family violence. Our law office is located in Downtown Houston and our phone number is 713-224-1747.