It’s Out of Your Hands: The Myth of Pressing Charges in Virginia Domestic Violence Cases

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It’s Out of Your Hands: The Myth of Pressing Charges in Virginia Domestic Violence Cases

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I’m not sure where the idea came from, probably T.V. or movies, but many of my Arlington, and Alexandria domestic assault clients often believe that their case will go away if their spouse simply tells the prosecutor that they don’t want to press charges. But nothing could be farther from the truth. While prosecutors will almost always consider the feelings of the complaining witness when deciding what type of plea offer to extend to a domestic violence defendant, that consideration only goes so far. And it rarely leads to an outright dismissal. Once the police come to your home and arrest someone, the power of a complaining witness to control a criminal case immediately decreases. It is the Commonwealth of Virginia that decides whether to “press charges”—that right does not belong to an individual.

Sometimes, that isn’t such a bad thing. It is no exaggeration to say that women are the victims in domestic assault cases an overwhelming majority of the time. And historically, many women have been reluctant to pursue legal action against their husbands and boyfriends, and will often remain in abusive relationships. So it makes sense in these cases to ignore the wishes of a battered spouse, and use the power of the state to protect her from future abuse.

But not all domestic violence cases are created equally. For every case in which the defendant is a chronic wife-beater, there is another in which a couple got into an argument—often alcohol-fueled—which got out of hand. A domestic assault may involve a shove, a grabbed wrist, a single slap, or even knocking a glass or phone out of someone’s hand. Loud yelling often leads to a 911 call from a neighbor, a knock on the door by the police, and somebody being led away in handcuffs. In my experience, the defendant in these types of cases can be of either sex. And in many of them, the complaining witness simply wants the case to go away. Cases are rarely dismissed based on the wishes of the parties, however. Rather, this decision is almost always based on the strength of the evidence, and the testimony of the complaining witness.

The outcome of every Arlington or Alexandria domestic assault case is going to mainly be determined by the facts. But the road to resolution follows a familiar path. First, the defendant will be under an emergency protective order. That means that for the next 72 hours after the arrest, the defendant will be prohibited from contacting his or her spouse. This period can be painful for both parties. Rather than being given the chance to kiss and make up after what may have been a rare argument, the couple remain separated from each other, and are left to deal with their feelings alone. Moreover, this usually means that the defendant will have to find a couch to sleep on for the next three days, since they may be unable to return home.
In some cases, the magistrate who makes the bond determination, may impose a “no contact” condition as part of the release order. That order may stay in place until the case is resolved, which could be a month or more. Such an order can be devastating to both the personal and professional lives of a defendant. But there is hope: in most cases in which the complaining witness has no desire to be “protected,” by the state, your domestic assault lawyer can move the Juvenile and Domestic Relations Court to lift the order, and allow the couple to be reunited.

Having an experienced domestic assault lawyer early on in these “reluctant witness” cases can be very beneficial to a couple caught up in the system. A lawyer can reach out to the complaining witness during the protective order period, and communicate with both parties. The lawyer can arrange to have the complaining witness contact the victim’s advocate or prosecutor to express their wish that a no contact order be lifted. More importantly, the lawyer can start putting together a defense to the charge, based on his conversations with the complaining witness.

For both parties in a domestic violence prosecution, the uncertainty of the situation is often the worst part. Your lawyer should be able to alleviate some of the stress by guiding you through what is usually an unfamiliar process. If you have been charged with domestic assault in Arlington or Alexandria Virginia, contact Jay Mykytiuk Trial Attorney for a case evaluation.