I saw a news report the other day that talked about the increase in domestic abuse incidents not only in Wisconsin but throughout the nation. This increase is undoubtedly an unintended consequence of the quarantine orders associated with the COVID-19 pandemic. The Coronavirus alone is putting extraordinary stresses on our personal health and finances as a record number of Americans recently filed for unemployment. Further there are less options available to people in terms of peacefully resolving disputes. You cannot as freely and easily go outside, go to work, or take a walk in a park to blow off steam like you could in the past. Finally, added to this pressure cooker is a documented increase in drug and alcohol consumption.
Oftentimes when we hear the phrase domestic abuse we form images of a man, often portrayed with a poor moral character, that is physically aggressive towards a woman. Although sadly those types of incidents still occur many people are surprised to find out how domestic abuse laws work in Wisconsin. For example, people I consult are often very surprised to discover that domestic abuse laws can apply to arguments among roommates, or even former roommates!
This article defines domestic abuse for you, explains the main potential consequences you should care about, and provides you with three recommendations that you can immediately take to help yourself and protect your rights.
What is Domestic abuse?
Domestic abuse is a phrase that often produces very negative thoughts and emotions. However, domestic abuse in Wisconsin and has a specific legal meaning. Domestic abuse takes place when one of four prohibited acts occurs between two or more specially situated persons. Let me flush this out a bit for you.
First, for an act of domestic abuse to occur there must be evidence of:
1. Intentional infliction of physical pain, physical injury, or illness.
2. Intentional impairment of a physical condition.
3. A felony level sexual assault.
4. A physical act that may cause the other person reasonably to fear imminent engagement in the conduct described in 1-3 above.
In my opinion, those prohibited acts cast a pretty wide net and captures a lot of conduct. For example, if you and I were in an argument and I said that I was so upset that I could hit you, even if that act never occurs, and even if I really had no intention of ever hitting you, a prosecutor could still conceivably charge me with an act of domestic abuse assuming we fit into one of the relationship categories below. However, a pure verbal argument, without any physical acts of violence, does not constitute an act of domestic abuse.
Second, if a person commits any one of those prohibited acts identified above, it only constitutes “domestic abuse” if it is engaged in by an adult person against:
1. Your spouse or former spouse.
2. An adult with whom you reside or formerly resided.
3. An adult with whom you have a child in common.
Wisconsin has a more expansive definition of domestic abuse compared with federal law. Notice that number 2 above permits the arresting and charging of an individual for fighting with a roommate even if there is no familial relationship. I have spoken with, and represented, many people who were shocked to learn of this nuisance in our law.
Is Domestic Abuse a Crime?
No, the domestic abuse statute, by itself, does not set forth a crime in Wisconsin. Our domestic abuse statute is considered an “enhancer” and not a substantive crime. For example, if you and I engaged in a fight (assume you punched me) the crime would be battery. If you and I fit into one of the three relationship categories above (spouses, children in common, roommates, etc.) then my charge would appear as Battery (domestic abuse).
Stated differently, the domestic abuse statute can “enhance” any substantive crime applying to the four prohibited acts above. If convicted, the enhancer imposes a surcharge and other potential collateral consequences discussed in more detail below.
What Are the Potential Consequences of Domestic Abuse?
If you have been arrested or charged with committing an act of domestic abuse you may already be painfully aware of the potential consequences associated with your situation. Below are the main reasons you should care about the domestic abuse enhancer and how it may impact your case.
1. The Police Follow a Mandatory Arrest Policy.
Our domestic abuse statute tells police officers that they “shall” arrest you if the officer has reasonable grounds to believe that you were committing, or have committed, domestic abuse, that your actions constitute the commission of a crime; and any of the following apply:
A. The officer has a reasonable basis for believing that continued domestic abuse against the alleged victim is likely.
B. There is evidence of physical injury to the alleged victim.
C. You are the predominant aggressor.
“Predominant aggressor" means the most significant, but not necessarily the first, aggressor in a domestic abuse incident.
Thus, if the cops show up and determine that you were the predominant aggressor, you will be arrested even if the complaining person tells the cops that s/he does not want you to be arrested.
2. Arrest Without Immediate Release.
Besides getting arrested, you will not be released from custody until you can either post cash bail or appear before a judge. Depending on the time of your arrest, and the jurisdiction where this occurred, neither of those options may occur quickly. Obviously, being stuck in custody can create tremendous issues including the loss of employment, disruption to school, and significant issues related to child custody.
3. You May be Subject to a No Contact Order.
Unless there is a waiver by the complaining witness, during the 72 hours immediately following an arrest for a domestic abuse incident, you will be ordered to avoid the residence of the alleged victim. Further, you will be ordered to avoid contacting or causing any other person, (other than your attorney) to contact the complaining witness. This 72-hour period is designed to be a “cooling off” period between the parties. This is important to you because you could be forced to find another residence for a minimum of three days following an arrest.Keep in mind, a violation of the mandatory no contact order is a crime and exposes you to a fine of up to $10,000 and/or 9 months in jail.
4. The Possibility of a Criminal Conviction.
As you can see there can be very swift and severe consequences associated with an accusation of domestic abuse. Following an arrest, you could be held in custody for up to 48 hours and prohibited from returning to your residence. Those issues can be the tip of the iceberg as you are still forced to deal with the direct consequences of the charges itself. Needless to say, if you are charged with one or more crimes, you face the possibility of fines, probation, jail and in severe cases, a prison sentence.
5. Impact on Your Firearm Rights.
You are likely aware that if you are convicted of a felony you forever forfeit your right to carry and possess a firearm. However, you may be surprised to learn that your ability to carry and possess a firearm may be compromised under federal law, even if you were only convicted of a misdemeanor. How can that be?
Well, federal law imposes a lifetime gun possession ban on people convicted of what is labeled a "misdemeanor crime of domestic violence." Whether your situation fits into this category or not is beyond the scope of this article, however, you should be aware that if you see the domestic abuse enhancer attached to any of your criminal charges, your firearm rights may be impacted.
What Can You do to Protect Yourself?
Although an arrest for domestic abuse can be stressful, you must remain focused on obtaining the best possible outcome to your situation. If you follow the recommendations below you can ensure your case gets started on the right foot:
1. Do Not Resist Arrest.
You do not have a legal right to resist an arrest, even an unlawful one. What this means is that even if the police are totally wrong and they are arresting the wrong person you do not have a legal right to fight, struggle, or otherwise resist arrest. The law requires you to submit to an arrest, even if you believe it to be unlawful. Disputes about the legality, or not, of your arrest are to be determined after the fact, in a court of law, by a judge.
2. Comply with Your Bail Conditions/No Contact Order.
If you are charged with a crime the judge must set reasonable bail conditions. Conditions of bail fall into two categories: monetary and non-monetary. Monetary conditions of bail, referred to as “cash bail,” is the amount of money that you would have to post in order to get released from custody.
The alternative to cash bail is a signature bond. A signature bond means that you will not have to post any money. Rather, you will simply sign your bail form and pledge to follow the conditions that are set in your case.
The judge will also likely impose reasonable non-monetary conditions of bail as well. Examples of common non-monetary conditions of bail include: no contact orders, geographical restrictions, or restrictions on the consumption of alcohol or controlled substances. I strongly recommend that you adhere to your bail conditions, especially when it comes to no contact orders.
It is important to remember that after your bail is set initially, a judge can modify your bail in the future. Thus, if a judge, or court commissioner, sets unreasonable conditions you can file a motion and ask the judge to act (i.e. modify, rescind, etc.). However, unless or until a judge modifies your bail, you are legally obligated to follow all conditions. Do not make your situation worse by violating bail and risk getting charged with additional crimes.
3. Consult with an attorney
At the risk of you thinking that I am giving self-serving advice, I will state the obvious: if the government wants to take away your liberty, you need an attorney to fight for you. If you are reading this on behalf of a loved one, you are doing that person a big favor by researching information in order to make the best possible decision.
If you were arrested for battery, disorderly conduct, criminal damage to property, or any other domestic abuse crime, or if you have already been charged, I strongly recommend that you consult with an attorney so you can discuss the details your situation in private. The consequences for a domestic abuse conviction can be severe and have a permanent, lasting impact on your life.
I welcome you to have me to tell you exactly and precisely what I would do in your situation. If, after reading this article, you are looking to work with an attorney who believes in doing things right, having full accountability, and backing it up with action that actually gets results, give me a call. There is no cost or obligation associated with our initial consultation.
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