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Domestic Violence

What Is Considered a Domestic Violence Crime in Washington?

Washington law defines a domestic violence crime as any crime when committed by one family or household member against another or against someone with whom you have a "dating relationship".  RCW 10.99.020.  To determine if your case is a domestic violence crime, you must ascertain whether the relationship to the complaining witness is defined by this statute.

  1. "Family or household member" means:
  • A spouse;
  • A former spouse;
  • People who have a child in common;
  • Adults related by blood or marriage;
  • Adults who are presently living together or who have lived together in the past;
  • People 16 years or older who are living together or have lived together in the past;
  • People sixteen years of age or older who have or have had a dating relationship; People who have a parent-child relationship (biological or legal).  This includes stepparents, stepchildren, grandparents and grandchildren.
  1. Dating Relationship (RCW 26.50.010)A "dating relationship" means a social relationship of a romantic nature. To determine if a "dating relationship" exists, the court may consider:
  • The length of time the relationship has existed;
  • The nature of the relationship;
  • The frequency of interaction between the parties.

These definitions should be strictly construed.  If you do not have a relationship that is specifically defined in this list, then it is not a crime of domestic violence and RCW 10.99 does not apply.  See, State v. Garnica, 105 Wn. App. 762 (2001).

Why Does it Matter if a Crime Is Designated Domestic Violence (DV)?

A person accused of a domestic violence crime faces very serious and long-term consequences. Domestic Violence crimes carry additional consequences including mandatory arrest provisions, prohibitions against possession of firearms, court ordered treatment, travel restrictions and enhanced penalties.

  1.  Consequences before conviction can include:   ·
  • Immediate arrest and incarceration in jail when police respond to a domestic violence call. Washington DV laws require that the police make an arrest when responding to a DV call if there is probable cause to believe that a crime has been committed. This is true even if your client has no criminal history, the accusations are conflicting, there are no injuries, or the accusations are relatively minor.  RCW 10.99.030
  • The issuance of a no-contact order while the case is pending which can prevent your client from residing in the home, contacting family members, or accessing property. This no-contact order can, and generally will, be imposed whether or not the other person involved in the incident wants it. RCW 10.99.040
  • Prohibitions on possessing firearms or dangerous weapons as a condition of release from jail.
  • Restrictions on movement, including the ability to leave the state or county where the crime is said to have occurred for any period of time.
  1. Consequences After Conviction

Consequences upon conviction, either by pleading or after trial may include:

  • Jail time.
  • Fines and costs as authorized by law.
  • Community Supervision (Probation), which may include restrictions upon your client's movement.  Probation requirements may also make it impossible for your client to move from the county of conviction until probation is completed.
  • Court ordered participation in a state approved Domestic Violence Batterer's Treatment Program at the client's expense for at least a year (a minimum of 30 sessions).  It is a rare case where this does not occur.  This also may result in your client having to engage in drug and alcohol dependency treatment.
  • Issuance of a no-contact order that can remain in affect during the entire time the court has jurisdiction. This can, and often will, be imposed even if the other party to the order does not want it.
  • Loss of rights to possess a firearm.  This loss is permanent unless you successfully petition to court to reinstate these rights and is governed by both state and federal guidelines.  RCW 9.41.040
  • Limitations on rights to residential custody and visitation with children.  RCW 26.09.191 & RCW 26.10.160
  • Serious immigration consequences if the client is not a United States citizen.  Always speak with an expert on immigration issues prior to entering into any sort of disposition in cases involving non-citizens as domestic violence charges will have an effect on their right to remain in this country.
  • Sentencing Ramifications under the SRA.  It is a ground for an upward departure from the standard range that the current offense involved domestic violence, as defined in RCW 10.99.020, where an aggravating factor also is present.  Where the court makes this finding, the defendant can be sentenced to the maximum sentence punishable allowed for the offense.

Washington Domestic Violence Related Crimes In Washington State

Any criminal charge may be labeled as a DV case if it fits the legal definition of Domestic Violence. Some charges are more common as Washington DV crimes. Often charged as domestic violence are the following crimes:

  1. Assault:  Assault is intentional touching of another person that is harmful or offensive regardless of whether any physical injury is caused. A touching is considered offensive if it would offend an ordinary person who is not unduly sensitive.  Attempted battery is also considered assault. An assault can also be an act done with unlawful force and the intent to create an apprehension and fear of bodily injury which does in fact create in another a reasonable apprehension and imminent fear of bodily injury (even if there was no intent to actually inflict bodily injury).  Whether there has been an assault in a particular case depends more on the apprehension created in the mind of the victim than upon the undisclosed intention of the assailant. State v. James, 56 Wn.2d 43, 351 P.2d 125 (1960).   There are four degrees of assault.  The degree of assault determines the seriousness of the charge and the possible sentence range.
  • Assault in the 4th Degree:  9A.36.041 is a gross misdemeanor and is often referred to as a "simple assault.”  A person can (and often is) charged with assault in the 4th degree even if the alleged "assault" is very minor and there are no marks or injuries.  An information charging fourth degree assault, that does not specifically allege intent, is constitutionally defective.  State v. Taylor, 91 Wn. App. 606 (1998).  Since a simple assault can occur where the defendant creates an apprehension of a battery, it takes very little conduct to commit assault in the 4th degree.
  • Assault in the 3rd Degree:  9A.36.031 is a Class C non-violent Felony.  Primarily a status crime, in DV cases it is typically alleged where bodily harm is caused to another person (1) by means of a weapon or other instrument or (2) accompanied by substantial pain that extends to cause substantial suffering.
  • Assault in the 2nd Degree:  9A.36.021 is a Class B violent Felony (unless with a sexual motivation – then Class A).  In DV circumstances, it is typically an assault by use of a deadly weapon or where an intentional assault recklessly inflicts bodily harm.
  • Assault in the 1st Degree:  9A.36.011 is a Class A serious violent Felony.  A person is charged with Assault in the 1st degree when one (1) assaults another with a firearm or any deadly weapon or by any force or means likely to produce great bodily harm or death (2) assaults another and inflicts great bodily harm.
  1. Harassment – RCW 9A.46.020Harassment is committed by knowingly and unlawfully threatening (when by words or conduct it places the person threatened to reasonably fear that the threat will be carried out) to:

(1) cause bodily injury in the future to another person; or

(2) cause physical damage to another person's property; or

(3) subject another person to physical confinement or restraint; or

(4) maliciously to do any act which is intended to substantially harm another person with respect to his or her physical or mental health or safety. Harassment becomes a Class C Felony: when it is established that there is a previous conviction for harassment of the same victim, victim's family or household member, or any person named in a no contact or no harassment order; or the threats are to kill the person threatened or any other person.

  1. Malicious Mischief – RCW 9A.48.070; 9A.48.080; 9A.48.090A person is guilty of malicious mischief if he or she knowingly and maliciously causes physical damage to the property of another.
  • Malicious Mischief in the 1st Degree is committed when damage amount is five thousand dollars or more and is a Class B Felony.
  • Malicious Mischief in the 2nd Degree occurs where damages amount is seven hundred and fifty dollars or more but is less that five thousand dollars.  It is a Class C Felony.
  • Malicious Mischief in the 3rd Degree occurs where damages are under seven hundred and fifty dollars.  Where the damage is less than fifty dollars it is a misdemeanor; over fifty dollars makes it a gross misdemeanor.  State v. Williams, 144 Wn.2d 197 (2001).
  • Community Property:  Damaging property that is community property can still give rise to domestic violence charges.  It is not a defense to the crime that you destroyed your own property when the property in question is community property.  Instead the court has held that community property co-owned and co-possessed by a defendant and his spouse is "property of another" for purposes of the crime of malicious mischief. State v. Coria, 105 Wn. App. 51 (2001).
  1.      Interfering with Reporting Domestic Violence -- RCW 9A.36.150This crime is committed when a person commits a crime of domestic violence and prevents or attempts to prevent the victim or a witness to that domestic violence crime from calling a 911 emergency communication system, obtaining medical assistance, or making a report to any law enforcement official. In order for this crime to be proved, the state must show that the intent was to prevent a person from reporting and not for some other purpose.

Orders Prohibiting Contact: No Contact Protection Orders

There are four types of court orders for no contact, however only one (the no contact order) is criminal. The rest of the orders, Protection Order, Restraining Order, and Anti Harassment Order are civil orders. Washington courts have the authority to issue Orders Prohibiting Contact in a variety of circumstances. Washington RCWA 26.50.  These orders may be issued in the following situations:

  • When an individual (the petitioner) requests that the court issues an order preventing another person (the respondent) from having any contact with them.
  • When a criminal charge has been filed and the court issues an order for the protection of someone.  In this circumstance the court can issue such an order even if the people involved want to have contact and object to the order. These orders generally prohibit all contact of any kind (including, but not limited to, phone calls, letters, e-mail and contact through a third party) and may restrict your client's ability to come within a certain distance of someone's home, work or school. The Consequences of Protection Orders are Serious.
  • Under 18 U.S.C. 922 (g) (8) and state law persons subject to a protection order may lose their right to possess firearms. Where these conditions apply check that:
  • The Penalties if Order Is Violated can be Severe. Under RCW 26.50.110, there is a mandatory arrest policy for violating restraint and exclusion provisions.  If this policy is violated there is the risk of criminal charges or contempt.  It is a Class C felony if there is assault or reckless endangerment; otherwise it is a Gross Misdemeanor.  It is not a defense to a charge of violation of a court order that a person protected by the order invited or consented to the contact with the defendant.

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Amendment VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.