Technically speaking, domestic violence is not a crime. Rather, it is an element to an eligible underlying offense that gets added to the charge against the defendant if the defendant and the purported victim had a close relationship with one another. When an offense becomes a domestic violence offense, there can be additional penalties on the table, and the process of enforcing the law becomes much stricter for the person who has been accused. All told, an allegation with a domestic violence component to it leads to an expedited process that aims to protect the alleged victim but comes at the expense of the due process rights of the accused.
When facing charges for an offense of domestic violence, hiring a defense lawyer like Joseph D. Lento can ensure your rights are protected.
Underlying Offenses That Are Eligible for Domestic Violence Charges
Under New Jersey's Prevention of Domestic Violence Act, only certain crimes can become crimes of domestic violence in the state. All of the offenses that are eligible for the domestic violence “upgrade” involve an act of violence or threat of violence, and many of them involve conduct that includes a sexual component to it. Some of the most common include:
- Homicide under N.J.S.A. 2C:11-2
- Assault under N.J.S.A. 2C:12-1
- Stalking under N.J.S.A. 2C:12-10
- Criminal restraint under N.J.S.A. 2C:13-2
- False imprisonment under N.J.S.A. 2C:13-3
- Sexual assault under N.J.S.A. 2C:14-2
- Criminal sexual contact under N.J.S.A. 2C:14-3
- Harassment under N.J.S.A. 2C:33-4
Each of these offenses carries its own sanctions and penalties. In many cases, they can be quite severe, even without an added element of domestic violence. However, if one of these criminal offenses is alleged to have been done to someone closely related to the defendant, the allegation becomes more severe.
Types of Relationships That Can Lead to Domestic Violence Charges
If any one of the eligible offenses is alleged to have been committed against someone sufficiently close to the defendant, then the underlying offense will become a domestic violence offense. Therefore, the type of relationship between the defendant and the alleged victim is critical. Under N.J.S.A. 2C:25-19, in order for an element of domestic violence to get added to an eligible underlying offense in New Jersey, the alleged victim has to be:
- Aged 18 or older, or is an emancipated minor (someone under 18 but who is married, in the military, with a child, expecting a child, or declared independent by an agency or court), and the defendant is…
- A spouse
- A former spouse
- A current or former “household member,” as determined by police on a case-by-case basis
- Any age and the defendant is…
- The other parent of the alleged victim's child or expected child
- Someone the alleged victim is, or was, dating
If the alleged victim of an eligible offense falls within any of these categories, then the criminal charge becomes a domestic violence offense, which comes with numerous repercussions that change the course of the case's progress through the criminal justice system.
What Happens When a Charge Becomes a Domestic Violence Offense
There are a wide variety of repercussions that get triggered when an underlying offense takes on a domestic violence element, each of which can seriously infringe on your rights and interests.
Mandatory Arrest
When a 911 call is made and the police respond to the scene, if the officer thinks that any of the following situations is true, they are legally required to arrest the person being accused of a domestic violence offense:
- The purported victim has a sufficiently close relationship to the person they are accusing and exhibits signs of an injury caused by an eligible domestic violence offense
- There is probable cause to believe that a no-contact order has been violated
- A warrant is in effect
- There is probable cause to believe that a weapon was used
The mandatory arrest requirement for domestic violence defendants can create a very embarrassing scene, particularly when the situation is in public. The fallout from a mandatory domestic violence arrest – even if the resulting charges go nowhere – can be difficult to deal with.
A Defendant's Right to Bear Arms
Another important difference between a regular criminal allegation and a domestic violence allegation is that a domestic violence charge results in immediate Second Amendment repercussions for the accused.
During an arrest for domestic violence, police make strong efforts to locate and seize any weapons on the premises that they believe could conceivably be used to harm the alleged victim. If the premises are jointly used by the alleged victim and the domestic violence suspect, the victim can consent to a search for the weapon and its seizure. If the alleged victim does not have access to the weapon but knows of its existence, they can obtain a court order that the defendant surrender the weapon.
Restraining Orders and No Contact Orders
Finally, alleged victims of domestic violence have the ability to pursue and obtain temporary and emergency restraining orders and no contact orders. Emergency temporary restraining orders can be obtained in a matter of minutes by the police officer who responds to the scene of an alleged domestic violence incident. When these orders are served on the defendant, it can drastically limit what they can do and cause serious problems on the short-term: They may prevent a defendant from going home for days or even weeks, and can even keep them from work if their place of employment is at or near where the alleged victim works or lives.
Joseph D. Lento: A Domestic Violence Defense Lawyer in New Jersey
An accusation of domestic violence is often just the start to a turbulent and confusing time. Even if you are completely innocent and know it – and many domestic violence allegations are empty, merely vengeful attempts to use the criminal justice system to get back at someone – it can take the skills and legal representation of a domestic violence defense lawyer to fight the charges and prove your innocence.
Joseph D. Lento is a domestic violence defense attorney in New Jersey who can help. Call his law office at (888) 535-3686 or contact him online for the defense that you need at this truly difficult time.
