Updated: Dec 1, 2021
First of all, domestic violence allegations have several names. In criminal court, the most common domestic violence allegations are called domestic battery on a spouse or cohabitant (domestic battery) or inflict corporal injury on spouse (spousal abuse). In family law court, domestic violence allegations are made in connection with a family law domestic violence restraining order (DVRO).
Often times, the accused is facing domestic violence criminal charges in criminal court while simultaneously defending against a request for domestic violence restraining orders in family law court. A person facing this scenario should contact a criminal defense lawyer familiar with DVRO law, procedure, and defense because DVRO cases can have criminal consequences in criminal court, and vice versa.
Criminal court v. family law court: There are lots of differences between criminal law court and family law court when it comes to defending allegations of domestic violence. Perhaps the biggest difference is that in criminal court the defendant is facing actual jail or prison time if she is found guilty. On the other hand, in family law court, even if the defendant (litigant) has a DVRO sustained against her she is will not be going to jail unless she later violates the terms of the DVRO (see violation of a domestic violence restraining order).
Also, the defendant in a criminal law case has the right to an attorney. This is true even if the defendant cannot afford a criminal defense attorney. On the other hand, there is no right to an attorney in family law court, even if the family law litigant cannot afford an attorney. Finally, the burden of proof is very high in criminal court. The burden in criminal court is placed on the district attorney and the district attorney must prove beyond a reasonable doubt to twelve jurors that the defendant committed the alleged domestic violence offense. In family law court, the burden of proof is also on the person alleging the domestic violence conduct, but the burden of proof is only by a preponderance of evidence (“more likely than not standard”) and that burden must be demonstrated to only one person…the family law judge.
Note: Keep in mind that this is only a sampling of the differences between criminal court and family law court and that there are other differences between criminal court and family law court when it comes to domestic violence allegations.
Other crimes that are sometime included with domestic violence criminal charges in criminal court can include: violation of a domestic violence restraining order, stalking, criminal threats, harassing phone calls, and assault with a deadly weapon. In family law court, the request for domestic violence restraining order does not change names even if the underlying allegations are different. For example, in family law court, stalking a person is not called "stalking." Rather, it's called "domestic violence" and the evidence received by the court will include evidence of stalking.
Note: When domestic violence is technically available as a criminal charge, but there exist evidence of greater criminal charges, then the district attorney does not usually include the lesser domestic violence allegations as part of his or her prosecution. For example, if the defendant is alleged to have committed spousal rape (technically a domestic violence offense), the district attorney will likely charge the rape offense and forgo the domestic violence charges. This is because spousal rape is a much greater offense than domestic violence. The same is true with other crimes between domestically related persons, such as murder, mayhem, torture, etc.
What does domestic mean in domestic Violence cases: The start of any discussion on how to defend against false allegations of domestic violence necessarily starts with a definition of domestic.
In court, the term domestic is a term used to define a relationship between two persons who share a close affinity or blood relationship, such as a parent and child, a husband and wife, etc. The relationship between two persons must fall within the definition of family code 6211 in order to be considered domestic in nature (criminal court uses the same definition of domestic as does the family law court for purposes of domestic violence crimes).
Under family law code 6211, all of the following are persons domestically related to each other: Spouses or former spouses, cohabitants or former cohabitants, persons in an intimate relationship (or have been in an intimate relationship), persons who have a child together where the father is presumed to be the parent of the child, and all other persons related by blood to the second degree (parent, child, aunt, uncle, grandparent, sibling, cousin, half-sibling, etc.).
Violence defined in DV cases: Next, in order to properly defend against false allegations of domestic violence, we must first understand the definition of violence in the term domestic violence. Keep in mind that the term domestic is defined the same in criminal court as it is in family law court (see above), but the term violence, is defined differently in criminal court as it is in family law court.
In criminal court, the term violence in domestic violence crimes, refers to a type of affirmative negative conduct (violence or abuse) between persons who are domestically related. Violence in criminal court means some type of physical touching or harm, or the direct threat of physical touching or harm. For example, if the defendant in a criminal case attempts to hit her husband with her fist, but the defendant misses her mark and the victim is never actually struck, then the defendant may be charged with domestic battery, inflict corporal injury on spouse, or assault (without the domestic violence component). This is true even though the victim is never struck by the defendant because the defendant intended to do physical harm to the victim and the two persons are domestically related (husband and wife).
In family law court, the term violence is used more broadly and does not necessarily include affirmative physical conduct intended to cause physical harm. For example, in family law court, a litigant may have a domestic violence restraining order levied against her when she commits any of the following against another person with whom she is domestically related: stalking (regardless of physical injury to victim), harassing phone calls (no physical injury to victim), criminal threats (no physical injury to victim), assault (no physical injury to victim), assault with a deadly weapon (regardless of physical injury to victim), battery (regardless of physical injury to victim), kidnapping (regardless of physical injury to victim), child neglect of a related child, child molestation of domestically related child, contributing to the delinquency of a domestically related child, and more.
Note: Notice how in criminal court the defendant is not accused of domestic violence against a person that she did not physically harm or threaten to physically harm. But in family law court, a litigant may face a domestic violence restraining order which protects a person that the litigant did not harm, or even allege to harm. For example, in family law court, a domestic violence restraining order usually applies to protect the victim and the victim’s children. This is true even if the person alleged to have committed domestic violence against the victim is not alleged to have committed domestic violence against that person’s children. Of course, in a criminal case of domestic violence, a victim could request that the judge issue a criminal protective order against the defendant and in favor of the alleged victim and his or her children, but without the special request by the alleged victim the criminal protective order usually only includes an order that is intended to protect the named victim.
Also, the term domestic violence is a term commonly used by the general public and in the family law courts between petitioner and respondent with requests for domestic violence restraining orders (DVRO). The term domestic violence is not a commonly used term in criminal court. In criminal court, the term domestic term violence usually refers to one of two different crimes: inflict corporal injury to spouse (penal code 273.5(a)), and domestic battery (penal code 243(e)(1)).
Common Defenses to Domestic Violence
Every case of domestic violence is different; therefore, every defense to a domestic violence allegation is different. With that said, there are some common defenses used by attorneys in these types of cases. These defenses include:
Truth: Truth does not mean that the defendant in a domestic violence case tells her side of the story. Rather, it means that the truth is an easy story to tell. In other words, the more the false allegations of domestic violence are explored, the more the allegations tend to be inconsistent or otherwise lack trustworthiness. The exploration of truth can include the defendant, who can recite a version of the alleged conduct that is more believable than the accuser’s, but this can be a very dangerous defense option because anything a person says, or writes, may be used against her in both criminal and family law court. Therefore, the exploration for truth is usually directed by cross-examining the accusers and impeaching his credibility. This can take enormous effort because proving the negative is no easy task. However, when certain evidence exist, a defense of truth can be a great option. This defense tends to be a good option when the accuser has a history of lying (criminal record or reputation evidence), there is good physical that points to innocence (i.e. texts, video, etc.), and where the accused has reliable witnesses in his corner that can refute the accuser’s allegations, and more.
Note: It is not uncommon in a domestic violence case that the accuser has recently filed for divorce or child custody of the defendant’s children. When an alleged domestic violence victim files for divorce or child custody, and thereafter makes an allegation of domestic violence against the same person that he or she faces in the family law court, then those domestic violence allegations are often deemed suspicious to say the least. Every case is different of course, but there is a greater tendency of defendants in this situation that “take the stand” in his or her own defense. Always keep in mind that no defense to a domestic violence allegation (or any criminal conduct) should be considered or used without first talking to a domestic violence defense lawyer and anything a person says may be used against her in a court of law. A person has the right to remain silent in the face of accusation(s); only in rare cases, and with the assistance of an attorney, should she give up that right.
Insufficient evidence: A defense of insufficient evidence simply means that the prosecutor in a criminal case does not have enough evidence to meet the burden of proof (see above). In family law court, the term insufficient evidence is not used but the idea is same…namely, that the burden of proof was not met by the accuser(s) seeking a DVRO. The defense of insufficient evidence does not require the accused to do anything other than require the accuser to meet his or her burden of proof. For example, in a criminal case of domestic battery, if the defendant does absolutely nothing in her own defense, then the case must still be dismissed if the district attorney does not prove beyond a reasonable doubt that she committed the alleged offense. Similarly, in family law court, the accused is not required to provide a defense. Rather, the burden of proving that the victim needs a DVRO rests with him. Insufficient evidence is similar to a truth defense (see above) except that a defense of insufficient evidence is a more commonly used term in criminal court and it tends to imply that the defendant is relying on the burden of proof as opposed to providing a defense. For more information, see Insufficient Evidence.
Self-Defense: A person is allowed to use a reasonable amount of force against another person in order to defend himself or herself from bodily harm from the other person. The amount of force that is considered reasonable depends on the level and circumstances of the threat a person faces. In domestic violence cases it is often difficult to ascertain which person is the initial aggressor. In turn, without knowing which person is the initial aggressor there is no easy way to ascertain whether or not a person acted in self-defense. For example, without witnesses to an event (other than the alleged victim and the accused), it can be difficult to ascertain whether or not a wound, such as a bruise, cut, scratch, etc., is a defensive would or an offensive wound. Often times in a self-defense case the issue will come down to which person has a history or violence or anger, if any, or which person has a history of misrepresenting the fact (perjury conviction, fraud conviction, reputation for lying, etc.), if any. Of course, self-defense can be proved by any legal and reliable means, such as security camera footage, legal recording (see PC 632.7), witnesses, etc., but rarely in a false allegation of domestic violence case is the defendant blessed with possessing such great evidence. When the defendant does possess this exonerating evidence there is not likely going to be a criminal case or DVRO request in the first place (see Pre-filing Litigation in Criminal Cases).
Note: Self-defense is privilege. That privilege is not absolute. Only reasonable force, which is necessary to avert an immediate harm from another person, is allowed under this privilege. Also, the privilege does not apply where the person claiming she used self-defense was the same person who was the initial aggressor (with some exceptions). For more information, see Self Defense.
Recorded Evidence: Sometimes, in a false allegation of domestic violence case, the alleged victim is attempting to bribe or extort the accused and the accused has no solid way of proving that he or she did not commit the allegations. Thankfully, there are some laws that allow for a person to record another person without the other person's knowledge or consent. These laws include situations where a person is being bribed, extorted, harassed by telephone, or is otherwise the victim of a violent crime. Keep in mind that it is illegal to record another person without permission in a situation that does not fall within these exceptions (or without prior implied or express permission by the person recorded or without prior express permission by the court). See PC 632 for more details on when it is permissible to record another person without the other person’s knowledge or consent.
Defense of Others: Just like in a case of self-defense, a person has a privilege to use force against another person to stop that other person from using unjustified physical force against a third person. For example, if a wife uses physical force against her husband to stop her husband from unjustifiably harming the wife’s child, then the wife is probably privileged to use a reasonable amount of force against her husband which is necessary to protect her child. In this situation, if husband files for a DVRO against wife, or if the district attorney actually files criminal charges against wife, then the privilege of defense of others would probably apply to successfully rebut those claims or criminal charges, respectively.
Note: Defense of others is not an absolute privilege. In order for the privilege to apply, the person defended must have been privileged to use self-defense if he or she was able (see self-defense and exceptions above). For more information, see Defense of Others.
Defense of property: A person is privileged to use reasonable and necessary force against another person in order to defend his or her property from imminent harm. Keep in mind that deadly force used to protect property is never privileged. Also, the property protected must be in imminent danger of significant damage and the person against who force is used must be the person who is endangering the property. Defense of property is not commonly used in domestic violence cases as a defense except in one situation: where a person uses force to protect his or her phone (or cellphone) against a person who is attempting to damage the phone because the person protecting the phone is attempting to contact law enforcement (to report the domestic violence). In fact, damaging or interfering with a wireless telecommunication device to stop a domestic violence victim from contacting the police is a separate crime (See Penal Code 591.5).
No Physical Harm or Threat of Harm: As stated, for criminal violation of domestic violence, there must be some physical injury inflicted upon the alleged victim, or the threat of physical injury to the victim. Therefore, without injury, or threat of injury, domestic violence allegations are not usually filed in criminal court. Of course, domestic violence related charges can still be filed against the defendant regardless of the presence of injury or threats of injury to the alleged victim. These domestic violence related criminal charges include stalking, criminal threats, violation of a domestic violence restraining order, and annoying or harassing phones.
Statute of Limitations: The statute of limitations is a period of time in which the district attorney must bring criminal charges against the defendant. If the district attorney does not bring criminal charges against the defendant within the statute of limitation for that particular alleged criminal conduct then the district attorney is barred from ever charging the defendant for that conduct. The statute of limitations also applies to stop a domestic violence victim from filing for money damages after a certain period of time. However, for domestic violence restraining orders (DVRO), there is no statute of limitations. In practice, if a family law judge believes the allegations are too remote in time to give the defendant a reasonable opportunity to defend against those allegations, then the judge is likely to dismiss the accuser’s DVRO request. The statute of limitations for the two most commonly charged domestic violence crimes in criminal court are as follows: 5 years from the date of occurrence for any misdemeanor or felony violation of PC 273.5(a) [Inflict Corporal Injury to Spouse], and 1 year from the date of occurrence for any misdemeanor violation of a PC 243(e)(1) [Domestic Battery]. For more information, see Statute of Limitations.
Note: The statute of limitation is a time bar to prosecution in criminal and civil cases. Other time bars could apply that are shorter than the statute of limitations. In criminal court, this happens where the district attorney has unreasonably waited to charge criminal conduct and the defendant has lost memory or physical evidence that could have otherwise been used in her defense if the prosecuted had not unreasonably waited to charge the defendant. This is discussed in further detail under Serna Motion.
Other Defense: Less common defenses used in domestic violence cases include Insanity defense (not available in DVRO cases), intoxication (not available in DVRO cases), duress (not available in DVRO cases), mistake of fact, illegal search and seizure, coerced confessions, alibi