Should I fight my family violence case?
Family violence has evolved dramatically through time, most of it in the last few decades. At common law, a wife and children were property that the husband/father could deal with as he pleased for the most part. The world has grown up, and we now have very strict family violence statutes. Many men (and some women) are often falsely accused of family violence resulting lifelong disabilities and loss of civil rights. Domestic violence is a serious issue, but many uncscrupulous people take advantage of our lack of tolerance for domestic abuse.
Few accusations come easier than one partner claiming that their other partner slapped/punched/kicked/kneed/elbowed/body slammed/suplexed the other during a domestic confrontation. Husband (or better yet, ex husband or soon to be ex-boyfriend) isn’t doing what you want, so what better to do than call 911 and see if you can get him arrested, right? The worst you face is a false report to a police officer, right, and how is he going to prove that? These thoughts often run through the heat of a nasty argument, but the position you are putting the police and another human being in is very horrible.
First of all, you make the officer make an arrest decision. Many police departments have policies regarding an arrest at a family violence scene. If the officer has probable cause to believe family violence has occurred, he will likely arrest the accused. Probably cause is among the lowest standards in the law, requiring only that there be some evidence that a crime was committed and the person accused committed it. Some evidence, not much. If the officer believes your story, that is enough. Your estranged is now under arrest for one of the most serious misdemeanors, which in some ways is more serious than DWI. If he has a prior family violence conviction, he is under arrest for a third degree felony. Paying bond and hiring an attorney may be the least of his problems.
Under Texas law, assault causing bodily injury is a Class A misdemeanor, but assault family violence (assault plus a judicial finding of family violence) has special consequences. Public records (including employment background searches) now show him arrested for assault family violence. A person under indictment for a felony cannot possess a firearm under Federal law. If you have been convicted of family violence, you cannot possess a firearm under Federal law.
These consequences mean the only way to argue with one’s loved one is to leave. One does not have to be married to the person to be charged with family violence under Texas law. You can be in a dating or past dating relationship or living together. Yes, you can be charged with committing assault family violence against anyone living in your household.
Assault is broadly defined under Texas law. Under Section 22.01 of the Penal Code, one commits an assault if he (1) intentionally, knowingly or recklessly causing bodily injury to another, including the person’s spouse; or (2) intentionally or knowingly threatens another with imminent bodily injury, including the person’s spouse, or (3) intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative. Non-bodily injury assault (by threat or contact under (2) or (3) are normally Class C misdemeanors). You must be very careful with these two charges as well, for even Class C misdemeanor assaults appear to allow family violence findings that result in an enhancement to a third degree family if a later family violence assault is charged.
Juries can be very skeptical of domestic assault allegations for the reasons mentioned here. Like fraud, it is very easy to accuse, but very hard to prove. You certainly should NEVER make the decision to assault anyone, especially a loved one, but you should also take extra caution not to put yourself in a situation where a loved one/ex/household member can falsely charge you.
False assault allegations are one of the few instances where it may be better to talk to the police officer about what happened, and what motive your loved one has for falsely accusing you, unless you have already been arrested or charged. If someone has threatened to get you arrested, avoid them at all costs. An enemy can find a way to make your life miserable, including having you thrown in jail. Be extra careful in divorce/separation situations, and bring a witness along if you expect a confrontation with an estranged love one.
Additionally, Section 22.07 of the Penal Code outlaws “terroristic threats,” i.e. threatening to commit any offense involving violence to any person or property with intent to: 1) cause emergency or volunteer agencies to respond, 2) place any person in fear of imminent serious bodily injury, 3) prevent/interrupt use of public building/place/aircraft/automobile etc. 4) impair or interrupt public communications/transportation/water/gas/power supply or other public service, 5) place the public or substantial group of public in fear of serious bodily injury, or 6) influence the conduct or activities of a branch of government of the United States or Texas (including subdivisions). This offense is normally a class B misdemeanor, with exceptions that range up to the felony level. Never miss a good opportunity to keep your mouth shut.
If you are falsely accused and arrested on assault family violence, call an attorney. The consequences are too severe and permanent to not fight back, and assault cases are too winnable to roll over and take a plea – especially if you are innocent.