DOMESTIC VIOLENCE

Let me say at the beginning of this article that I believe in zero tolerance when it comes to physical violence between spouses. By that I mean under no circumstances do I think one of the spoused can hit, slap, or in anyway physically abuse the other during arguments. I get several calls a week from a spouse who has been involved in an argument with their partner. In many of these instances there was no violence, or the parties each pushed on the other, never intending and not causing any harm to the other. Obviously, married people don’t ever need to get physical. But we all know friends who lost their temper and got in shoving matches. If this happens and the police are called, I can almost guarantee you that someone is going to jail. These days when the police are called to a domestic violence disturbance, the police are going to take one, and sometimes both of the parties to jail. Let me explain the law of domestic violence.

Mississippi Code, Section 97-3-7 sets out the law on simple assault, aggravated assault, and domestic abuse. The first requirement of domestic assault is the relationship. For an assault to qualify as domestic it must involve: a current or former spouse; a person who lived or formally lived as a spouse; someone who had a present or former dating relationship with the defendant; and of course other family member. The next requirement is the assault element of the crime. People often fail to understand this factor. A person can be found guilty of simple assault for hitting another, but in addition you can be found guilty for attempting to cause bodily injury or recklessly causing bodily injury, even if that injury is minor. So if you swing at someone and miss, you have attempted to cause injury. If you push your spouse and they trip and hurt themselves, you have committed simple domestic abuse. You can also be guilty if you use a weapon of any kind and negligently cause injury. Finally, this is the most misunderstood part of simple assault and simple domestic assault: You can be guilty if you attempt by physical menace to put someone in fear of imminent serious bodily harm. This is where we see lots of simple assault and simple domestic assault cases. One of the spouses threaten the other.

The law also provides for an enhancement or additional punishment if the violence took place in the presence or hearing of a child under (16) years of age. Domestic violence crimes are like many other crimes. If they are repeated, even though they may be very minor, the punishment gets more severe. If a act of domestic violence takes place three (3) or more times during a five(5) year period, even if the act does not cause injury, the crime becomes a felony punishable by not less than five(5)nor more than ten (10)years in prison. The Court in misdemeanor cases can order treatment and require the defendant (person charged and convicted) with all the costs of the treatment. The Order of Conviction for Domestic Violence is sent to the Mississippi Attorney General and put on the permanent criminal records. A conviction for domestic violence has very terrible consequences beyond the shame of being known as someone who assaulted a loved one or former loved one. A person convicted of a misdemeanor domestic assault is prohibited from possessing or owning a firearm or ammunition. Federal Law makes this very clear. You can see from what I have written that what might appear as a simple argument between family members can quickly end up as a domestic violence charge with life time consequences.

Before leaving this topic you should know a little about the power to arrest in Mississippi. Most people do not know that police officers have the power to arrest in misdemeanor cases only when the crime has been committed in their presence, or when they have knowledge that a misdemeanor warrant is in existence. The police officer does not have to have the warrant in his possession, he only has to know it is in existence. Over the years the words in their presence have changed a little in Mississippi. As a result of aggressive DUI prosecutions, the in your presence has come to mean the officers can arrest if the information comes through one of their senses. This was a practical result of many officers coming across people who were drunk in their car but not driving, and the Mississippi Supreme Court determined that the officer could arrest even though the accused was not actually driving. This is a fair and logical extension of the power to arrest. But in all other cases, as a general rule, the officer must witness the crime, or he could arrest if the accused made a harmful admission or confession. That is another topic I have written on in this Blog. A person under investigation should not make statements to the police before getting legal advice.

There is one other exception to the power to arrest in misdemeanor cases and that occurs in domestic assault cases. Mississippi Law allows a police officer to arrest when he has probable cause to believe that an act of domestic violence has occurred in the past 24 hours even though it does not take place in his presence. This is different from other misdemeanors where the police officer could not arrest without a warrant if the crime is not committed in his presence.

There are some practical things every person should know about domestic violence. First, don’t do it. Walk away. If you get in an argument with your spouse, girlfriend, boyfriend, or other present or past family member, walk away if it reaches the point either of you start grabbing each other or pushing. It will be easier to talk with each other later if there is not physical contact. Secondly, if one of you call the police, someone is going to jail. The officer is charged with determine who is the principal aggressor. The law defines the principal aggressor as the one who poses the most serious ongoing threat or who is the most significant aggressor. In most instances this is going to be the man, because of his physical strength. I have seen case after case where good, educated couples got in arguments that involved pushing or grabbing each other. One of the parties called the police and one goes to jail. This happens all the time even though the spouse who called the police begs the police not to take the other to jail. I believe over 1/3 of the cases I see involve this situation.

Mississippi also has a law called the Protection from Domestic Abuse Act. This law allows any court to issue a Temporary Restraining Order against the person accused of the domestic violence. If Court issues an Order it can prohibit the accused from going back to the marital home and from having any contact with family members. I have seen cases where families have been separated for months by these orders even when the families want to get back together and work out their problems.

Violence against family members should not be tolerated. Like I said earlier, I am for a zero tolerance policy, but there are many people who get arrested for domestic violence who probably did not need to be arrested. The police in the streets can’t tell who is “good and who is bad” so they usually take someone to jail. If you understand the issues involved then hopefully if you ever find yourself in this situation, you will just walk away until everyone cools off. Domestic abuse is wrong and dangerous physically and emotionally for everyone involved.

Disclaimer: This blog is intended as general information purposes only, and is not a substitute for legal advice. Anyone with a legal problem should consult a lawyer immediately.

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