What is the legal definition of domestic violence in Alabama?
Alabama defines domestic violence to include criminal offenses that occur where: “the victim is a current or former spouse, parent, child, any person with whom the defendant has a child in common, a present or former household member, or a person who has or had a dating or engagement relationship with the defendant”
Incidents resulting in the abuse, assault, harassment, or the attempt or threats thereof, between family, household, or dating and engagement relationship members will constitute grounds for a domestic violence arrest.
Of course, there are many other crimes that may not be directly called a domestic violence crime, but which, involve domestic violence. These can be serious crimes such as murder, rape and other sexual offenses and other diverse crimes such as stalking and violation of protection from abuse orders.
What is the state of Alabama's position about prosecuting domestic violence charges?
The state of Alabama takes the issue of domestic violence very seriously. Individuals faced with domestic violence crimes are often vigorously prosecuted. The approach an individual prosecutor will take will depend upon not only the nature of the crime charged but also the criminal record of the accused person as well as other factors such as the prosecutor's personal view and, even personality.
What is a no drop policy?
While different prosecuting agencies may have varying policies, most have a “no drop” policy meaning they will not simply dismiss a domestic violence case based upon a request of the victim or without a very strong reason to do so.
Why are domestic violence cases so aggressively prosecuted?
There are a variety of reasons that these cases are strongly pursued by prosecutors. One reason is the recognition of “battered woman's syndrome” or “battered person's syndrome” where the victim of abuse feels helpless and often believes they are to blame for the crimes accused against them rather than their abuser. Prosecutors wish to break the cycle of violence that occurs in these situations.
Of course, simply because someone is accused of domestic violence does not mean that he or she is guilty. Unfortunately, some individuals have learned they can “work the system” and will file false charges for a variety of reasons such as revenge or retribution.
Even in true instances of domestic violence, not every victim suffers from battered woman syndrome or battered person syndrome.
If you have been accused of domestic violence, expect your case to be vigorously prosecuted. Obtain the best representation possible.
Under Alabama law, if the police are called on a domestic violence matter, must someone be arrested?
It is not mandatory for an officer to arrest someone when they are called out on a domestic violence case but, this is frequently the end result. A law enforcement officer may arrest a person without a warrant, at any day or any time when an offense involves domestic violence and the arrest is based on probable cause. The officer is free to arrest for either a misdemeanor or felony domestic violence offense.
What if there are two different opposing stories when the police officer arrives in a domestic violence call?
If a police officer receives a complaint of domestic violence from two or more opposing people and both of them had injuries, the officer will evaluate each complaint person separately to try to determine who the predominant aggressor was.
Typically, the officer will consider a number of factors to determine who the predominant aggressor was. These factors can include prior complaints of domestic violence, the severity of the injuries of each person the likelihood of future injury to either person or whether or not someone acted in self-defense.
Typically under the circumstances at least one party will be arrested and depending on the officer's discretion, both parties may be arrested.
What if the allegations of domestic violence against me are false?
For anyone to be found guilty of a domestic violence crime the prosecutor must prove, beyond a reasonable doubt that the person committed the crimes they are accused of. If the evidence does not meet the standard of proof beyond a reasonable doubt the persons entitled to judgment of acquittal.
In a perfect world no innocent person would ever be convicted of a crime, however, our world is far from perfect and instances of false allegations it will be up to your attorney to establish either that the evidence is not sufficient, false or not to be believed.
Different lawyers have different approaches and the strategy your lawyer uses will depend on the specific facts and other variables pertaining to your case. In some instances, your lawyer might choose to present, prior to trial the evidence that you are wrongly accused. In some circumstances, your lawyer may wish to wait and reveal this information during the course of your trial. Every case is different and different approaches may be used depending on the circumstances.
If I am guilty of domestic violence is there anything a lawyer can do to help me?
It is sometimes easier to avoid a conviction for a person who is actually guilty of domestic violence than one who is not.
You may want to read that sentence again…. Yes it is sometimes easier to avoid a conviction for a person who is guilty of domestic violence than for a person who is not guilty.
While this may sound like something out of Alice in Wonderland there is logic to it. This is because with the existence of many pretrial counseling programs, it is often easier (and safer) for an accused person to avoid a conviction by attending a counseling program instead of having a trial. While the results of the trial are never certain, the successful completion of a domestic violence program will result in the dismissal of the criminal charges.
In almost all instances a person who has negotiated for their charges to be diverted into a domestic violence program can avoid a conviction if they successfully complete their program and are not arrested for any other charges.
Because the outcome of a trial is uncertain, many people charged with domestic violence are offered an opportunity to avoid a conviction by attending counseling and choose to do so.
What is a domestic violence order (or Protection from Abuse Act) violation case?
There are a variety circumstances under Alabama law were a judge may issue some form of domestic violence order typically restraining an individual from contact another individual listed in the order. Violation of any form of domestic violence order is a crime and may result in criminal proceedings.
How is a domestic violence case prosecuted?
As in any criminal case, the burden of going forward is on the prosecution. The accused person has nothing to prove and has no burden of proof. The state must establish, beyond a reasonable doubt, each and every element of the crime the person is accused of. If the state fails to meet its burden, the accused person is entitled to be found not guilty.
Can a domestic violence case go forward if the victim is not present?
A domestic violence case can be prosecuted without the victim if there is sufficient evidence to do so. The most serious type of domestic violence might involve the murder of a person's spouse or lover. Obviously, the murder victim cannot testify at trial but, as long as the prosecution has sufficient evidence, the case will go forward.
Of course in some instances, the critical evidence is the testimony of the victim in a domestic violence case. In that type of case, with the victim refuses to testify or fails to show up for court it is quite possible the charges could eventually be dismissed.
In most instances, the prosecutor will have a subpoena issued for the complaining witness (or victim); a subpoena means the person is obligated to come to court under penalty of law. Thus, a person who fails to comply with a subpoena may face legal consequences. An aggressive prosecutor may ask that the witness be physically brought to court. There are other remedies the prosecution may seek to compel a witness's compliance.
Can I assert self-defense in a domestic violence case?
Yes, if the facts support this claim, this is a perfectly valid defense. You may speak with your lawyer as to how appropriate a self-defense claim may be in your case.
What are some of the types of criminal charges and punishments that fall under Alabama domestic violence laws?
For the charge of Domestic Violence First-Degree the underlying charges could include:
1. Assault, First Degree pursuant to section 13A- 6- 20, Code of Alabama.
2. Aggravated Stalking pursuant to section 13A- 6-91, Code of Alabama.
Domestic violence in the first degree is a class a felony with a minimum sentence of one year without consideration of probation, parole or goodtime credits, or any other reduction in time. The maximum sentence for a class a felony is up to 99 years or life in prison.
Typical charges for Domestic Violence in the Second Degree include:
1. Assault in the Second Degree under Section 13A-6-21.
2. Intimidating a Witness pursuant to Section 13A-10-123.
3. Stalking pursuant to Section 13A-6-90.
4. Burglary first and second degrees pursuant to Sections 13A – 7 – 6 and 13A -7-7, Code of Alabama.
5. The crime of criminal mischief in the first degree pursuant to section 13A–7-21 of the code of Alabama.
Domestic violence in the second degree is a class B felony, however; there is a minimum term of imprisonment of six months without consideration of probation, parole or goodtime or any other reduction in time. The maximum sentence for a class B felony is up to 20 years in prison.
Typical charges for Domestic Violence in the Third Degree include:
1. Assault in the third degree pursuant to 13A-6-22, Code of Alabama.
2. Menacing pursuant to13A-6-23, Code of Alabama.
3. Reckless endangerment pursuant to13A-6-24, Code of Alabama.
4. Criminal coercion pursuant to13A-6-25, Code of Alabama.
5. The crime of harassment pursuant to subsection a of section13A-11-8, Code of Alabama.
6. The crime of criminal surveillance pursuant to13A-11-32, Code of Alabama.
7. The crime of harassing communications pursuant to subsection B of section13A-11-8, Code of Alabama.
8. The crime of criminal trespass in the third-degree pursuant to13A-7-4, Code of Alabama.
9. The crimes of criminal mischief in the second and third degrees pursuant to sections13A-7-22 and 13A-6-23, Code of Alabama.
10. The crime of arson of the third degree pursuant to section13A-7-43, Code of Alabama.
Normally conviction for these crimes are misdemeanors with a maximum sentence of one year in jail under state law, however; a second conviction carries with it a minimum of 10 days in jail and third conviction is treated as a felony with a punishment range of the year the day 10 years in prison.