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Domestic violence is a scourge for many people, mostly women. Whether physical or moral, the brutality exerted by one spouse on the other spouse is too often devastating. Following an incident of domestic violence, it will then be frequently necessary to petition a judge for family matters either in the context of a divorce proceeding or in the context of a request for setting the right of access and accommodation, as we may do when there are children.
Therefore, you may wonder: “With domestic violence, when should I consult a lawyer?” Remember, domestic violence may be psychological violence (insults, moral harassment, threats, etc.); physical abuse (injuries, beatings, etc.); or sexual (sexual assault or rape). Domestic violence can, therefore, take different forms that often accumulate or intermingle and the purpose of which is to belittle, denigrate and dominate the other.
Domestic violence goes far beyond the mere arguments of a couple. It is a relationship of dominant / dominated which is long-term and which progresses towards acts that are more and more violent. This violence can be: psychological (screams, humiliating or belittling remarks, threats concerning relatives or oneself, insults, etc.); physical (blows, jostling, wounds, etc.); sexual (forced or non-consensual sexual relations). Indeed, the penal code provides that: any activity constitutes a sexual assault if it is a sexual act committed with coercion, violence, or threats.
In the majority of cases, they are part of a process in which there is a gradual escalation of violence, resulting in aggressive, violent and destructive behavior. As a reminder, rape is a crime, and for that reason, it is tried before the criminal courts. Consult your lawyer to find out what your rights are as a victim. Remember, the victim often remains ambivalent about an aggressor, who seeks to minimize the aggressor’s actions by justifying them, denying or reducing the aggression and making the victim feel guilty.
The role of the family law lawyer for the perpetrator of domestic violence will be to advise, assist and defend him/her in civil or criminal proceedings. A judicial review or a placement in a restraining order allows, in principle, the avoidance of risk. In this context, a competent lawyer for domestic violence, assures your defense and will help you get custody of your children if you are the victim.
In general, you should prefer a lawyer with whom you feel comfortable. Family law is a personal domain, and you will have to entrust a lot of things, sometimes sensitive, to your lawyer so that he can better advise you and defend you. An excellent domestic violence lawyer should be a specialized, experienced professional who has been fully involved in family law for years.
Also, after this type of trauma, it may be useful to be followed by a specialized psychologist. The victim who wishes to file a complaint is then informed of the date of the hearing. To the penal aspect was added a civil protection measure called a restraining order.
Therefore, a judge can forbid an aggressor to meet a victim, or force an aggressor to submit to a health care, social or psychological evaluation. A judge can thus force an aggressor to reside outside the couple’s home, to refrain from appearing in that home or the immediate vicinity of it. Remember, a lawyer’s competence is not limited to encyclopedic knowledge of the rules of law and legal information.
In parallel to the domestic violence proceedings, if you are a victim of domestic violence, I advise you to initiate a divorce procedure for fault against your spouse. Also, taking action in the wrong jurisdiction or failing to meet legal deadlines can waste a lot of time, and seeing your case returned several times without understanding the cause can be very frustrating. Therefore, take decisions to protect yourself, to protect one’s children, to overcome shame, to defend oneself with discretion, to confide in someone, to express oneself, and to find the legal solutions to get out of a domestic violence situation.
Remember, once the custody battle is over, in cases of domestic violence it is widespread for the accused to be brought directly before a court.
When domestic violence is alleged in the state of California, it will be prosecuted under penal code 273. This covers spousal abuse, domestic abuse, domestic violence, battery and corporal injury. Should an individual be accused of domestic violence in California, they can be charged with a misdemeanor or felony. The circumstances surrounding the case, as well as the history of the accused and more, will influence the type of charges brought.
Charges Can’t Be Dropped
Once an investigation for domestic violence has started, the charges can’t be dropped. The victim is unable to stop an investigation even if they recant their accusation. Prosecutors will attempt to get a conviction with the maximum punishment, even if the victim reverses their statement. The defendant’s past record of violence and criminal history will also influence the court’s decision to proceed.
An individual is usually arrested for domestic violence after a loud verbal argument escalates into a physical altercation. At this point, the victim or someone who has heard the altercation will call the police. When law enforcement arrives, they will attempt to get a statement from the alleged victim. Should a responding police officer notice any type of injury on the victim, they will take photographs of the injured area. A case for arrest and prosecution can be made from even small injuries. The injuries a victim sustains during an altercation will have a large impact on the type of charges brought against the accused.
A person found guilty of violating California penal code 273 can receive a misdemeanor conviction. They could receive a punishment of three years of informal probation, twelve months in the county jail, a fine of $6,000, payment to a battered women organization, regular payments to the victim, a protective order, restraining order, abuse classes, counseling and community service.
A person receiving a felony conviction under California penal code 273 can receive formal probation. They may also be given four years of incarceration, five more years if it is determined they inflicted great bodily harm. They may also have to make payments, receive a protective order, restraining order and take abuse classes. A person who has been convicted may also have to do community service and receive counseling.
In certain circumstances, it is possible to prove the victim received injuries as the defendant tried to protect themselves. This would be a legitimate claim of self-defense. If a victim becomes injured during an altercation because of an accident, there is no crime. This is a very difficult thing to prove during a trial. Another very common defense is false claims. One person can make a false accusation against another for a variety of reasons. The motivation is usually revenge. People can make false accusations of domestic violence during an emotional moment. This could result in the accuser being charged with a crime.
When a person is accused of domestic violence in California, it is in their best interest to immediately seek professional legal assistance. An experienced lawyer will be able to review the facts of the case and provide the best possible defense. They can help a person understand their rights in this situation.