Domestic Violence and Domestic Abuse

The crime of domestic violence, how it's prosecuted, and how victims can get help.

Domestic violence crimes are characterized by physical abuse and threats between two people who are in a close familial or social relationship. This article defines domestic violence and looks at common issues in criminal cases involving domestic violence. It also provides some information on stopping abuse.

What Is Domestic Violence?

Domestic violence is a catch-all term for violent acts or threats that occur between people who have a particular kind of relationship. They may be married, living together, or even just dating. They may share a child in common. They may be family. They may be heterosexual, lesbian, or gay. While anyone can become a perpetrator or victim, serious domestic violence injuries typically result from males attacking females. Though murder and rape can be forms of it, domestic violence often consists of lesser forms of physical abuse, such as slapping and pushing. Stalking can also be a form of domestic violence. (Some use "domestic violence" to describe abuse against children, too.)

Is There a Crime Called "Domestic Violence"?

Many states define domestic violence as a distinct crime. So, for example, someone who strikes a significant other could be charged with a form of domestic violence instead of (or in addition to) other crimes like assault and battery.

Recognizing that domestic abusers take advantage of their victims' trust and confidence, prosecutors often push for harsher sentences in domestic violence cases. A prosecutor might, for example, want more jail time for someone who attacked a spouse than for someone who did the same to a stranger. And domestic violence sentences typically include special protections for past (and potential) targets. For example, the conviction of a crime of domestic violence may entail a mandatory jail sentence and some type of restraining order (more on this below). Identifying a crime as one of domestic violence often allows judges to order abusers to participate in therapeutic counseling.

Here's an example of a state that defines domestic violence as a distinct crime: In Wisconsin, "domestic abuse" is any of the following acts committed against a spouse or former spouse, an adult the defendant lives or used to live with, or an adult with whom the defendant has a child in common:

  • intentionally inflicting physical pain, physical injury, or illness
  • intentionally impairing a physical condition
  • sexual assault, or
  • a physical act that may cause the victim reasonably to fear the imminent occurrence of any of the above.

(Wis. Stat. § 968.075 (2020).)

Charging and Prosecuting Domestic Violence: Special Challenges

Police and prosecutors face two common problems when it comes to arresting, charging, and prosecuting for domestic violence.

Victims' Hesitancy or Failure to Report

First, victims of domestic violence are often reluctant to report the abuse. Abuse victims may hope that the abuse was an isolated act that won't happen again. Or they might be fearful that reporting the violence will only goad the attacker into further violence. If a woman and her children are dependent on their abuser's income, she may fear that reporting the violence will lead to loss of financial support. Understandable though such reactions may be, the result is that most crimes of domestic violence go unreported.

Victims' Reluctance to Testify

A second difficulty with prosecuting domestic violence cases is that even when they report attacks to the police, victims often refuse to testify against their attackers at trial. As defendants have a constitutional right to confront and cross-examine their accusers, prosecutors often cannot offer domestic violence victims' statements to the police into evidence in lieu of the victims' actual testimony in court. As a result, prosecutors must sometimes dismiss domestic violence charges.

The combination of failing to report and refusing to cooperate with prosecutors makes domestic violence one of the hardest crimes to successfully prosecute.

Help for Domestic Violence Victims

Many localities have domestic violence hotlines. People who fear domestic violence should always know how to contact a hotline. Those who have been subjected to domestic violence may also go to court and secure a protective order or restraining order, which often prohibits the abuser from coming into contact with or even being in close proximity to (say 500 feet within) the victim. An abuser who violates the terms of a restraining order—for example, by showing up at a victim's home or place of work—may be arrested and charged with a crime. Because many domestic violence victims call 911 for assistance, it may help to know that statements made to 911 operators may be admissible in court to prove that a domestic abuser is guilty.

Domestic Violence Convictions and Guns

Because many domestic abusers are recidivists, Congress passed a law making it a federal crime for people convicted of domestic violence to have a gun. The law additionally prohibits those subject to domestic violence restraining orders from having a gun. States may also have laws that overlap with the federal ban. (18 U.S.C. § 921 and following; see What kind of "domestic violence" conviction prevents you from having a gun?)

The U.S. Supreme Court upheld the federal law in the case of United States v. Hayes. The Court essentially ruled that the law applies to any conviction for an act of domestic violence, even if the conviction doesn't explicitly fall into the "domestic violence" category. (555 U.S. 415 (2009); see Can a past misdemeanor that's technically not "domestic violence" prohibit you from having a gun?)

Talk to a Lawyer

If you've been accused of domestic violence, consult an experienced criminal defense attorney in your area. The law varies at least somewhat from state to state, and from state to federal court. A knowledgeable attorney will be able to explain the law and procedures to you and advise you.

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