Domestic assault in Virginia is an assault and battery against a family or household member. A Virginia domestic assault charge (Va. Code §18.2-57.2) can have very serious consequences. Virginia domestic assault is punished with jail, fines, and the inability to possess a firearm. There will also likely be employment consequences, especially if the convicted person has or is attempting to obtain a security clearance. Conviction for a Virginia domestic assault charge can also have severe immigration consequences for anyone that is not a United States citizen, including denial of admission to the country or potentially removal.
Additionally, a Virginia domestic assault charge will result in an automatic emergency protective order, valid for 72 hours, that prohibits the accused from having contact with the alleged victim. The victim can also file for an extension of that emergency protective order, which is called a preliminary protective order. Violations of any of these protective orders can result in additional criminal charges.
Proof of Virginia Domestic Assault Charge
Virginia domestic assault charges need to be taken seriously. An offender can be convicted even if the alleged victim does not want the offender to be prosecuted. Once the case is in court, it is not up to anyone to drop the charges-the case is in the hands of the prosecutor. To convict an offender of a Virginia domestic assault charge under Va. Code §18.2-57.2, the Commonwealth must prove an assault and battery and that the assault and battery was against a household or family member as defined in Va. Code §16.1-228.
Assault and Battery
An assault in Virginia is threatening a battery or attempting to commit a battery. A battery is any unwanted or offensive touching done in a rude or angry manner. The unwanted touching does not have to cause any injury to be a battery. An attempted battery is an attempted harmful or offensive touching. Therefore, assault can occur if the offender threatened a harmful or offensive touching against the victim and had the apparent present ability to do so, and it can also occur by an attempt to commit a harmful or offensive touching. For more information on assault and battery in Virginia, click here.
Family or Household Member
Family or household member is a broad term and covers extended family as well as people who don’t live with, or never lived with, the person who allegedly committed the domestic assault.
Va. Code §16.1-228 defines Family or Household Member as:
- spouse, whether or not he or she resides in the same home with the person
- former spouse, whether or not he or she resides in the same home with the person
- parents, stepparents, children, stepchildren, brothers, sisters, half-brothers and sisters, grandparents and grandchildren, regardless of whether they reside in the same home with the person
- mother-in-law, father-in-law, sons-in-law, daughters-in-law, brothers-in-law and sisters-in-law who reside in the same home with the person
- any individual who has a child in common with the person, whether or not the person and that individual have been married or have resided together, or
- any individual who cohabits or who, within the previous 12 months, cohabited with the person, and any children of either of them then residing in the same home with the person.
Defenses to Virginia Domestic Assault Charge
Domestic assault in Virginia still requires proof of an assault. Therefore, the usual defenses to an assault charge are applicable to a Virginia domestic assault charge. Some of these defenses might include self-defense, no intention to cause a harmful or offensive touching (it was an accident), or it simply never even happened.
Penalty for Virginia Domestic Assault Charge Under Va. Code §18.2-57.2
Virginia domestic assault charges are punished with jail and fines. Additionally, anyone convicted of a Virginia domestic assault charge is prohibited from owning a firearm.
Domestic Assault in Virginia is a Class 1 misdemeanor, punished with up to 12 months in jail and a fine up to $2500. A conviction for a third offense Virginia domestic assault charge within 20 years is a Class 6 felony, punished with a minimum of 6 months in jail and a maximum of 5 years in prison. The prior 2 convictions can be for domestic assault under Va. Code §18.2-57.2 or any combination of convictions of crimes committed against a family or household member that include domestic assault, malicious wounding (Va. Code §18.2-51), aggravated malicious wounding (Va. Code §18.2-51.2), malicious bodily injury by caustic substance (Va. Code §18.2-52), strangulation (Va. Code §18.2-51.6), or similar out-of-state offenses.
For more information on malicious wounding charges in Virginia, click here. For more information on aggravated malicious wounding in Virginia, click here. For more information on strangulation in Virginia, click here.
Deferred Disposition and Dismissal for First Offender
Va. Code §18.2-57.3 provides an opportunity for a first time offender to have his Virginia domestic assault charge dismissed upon successful completion of a deferred disposition program. This means that the court will defer (or delay) a finding of guilt for a specified period of time and place the offender on probation, with a number of requirements.
An offender is eligible for this program if he was an adult at the time of the crime, he has had no prior convictions of assault or assault and battery against a family or household member, the offender has not previously participated in this first offender program for a Virginia domestic assault charge, and the person agrees to the deferred disposition. Additionally, the offender must plead guilty, no contest, or the court must find that there are facts sufficient to find him guilty of the charge prior to placing him in this deferred disposition program.
During this period of probation, the offender must remain on good behavior and not pick up any new criminal charges for at least 2 years. The offender is also required to have a domestic violence evaluation and comply with any recommended treatment, pay the costs of participation in the program and any required treatment, and is prohibited from having any contact with the victim or possessing firearms.
If the person successfully completes the program, the Virginia domestic assault charge will be dismissed and he will not have a conviction. However, the charge cannot be expunged, and the offender is not able to participate in the program again. If the offender fails to complete the program, he will be convicted of the Virginia domestic assault charge and faces all of the potential penalties. Additionally, he will not ever be able to participate in the deferred disposition program for a future Virginia domestic assault charge.
Virginia Domestic Assault Statute
§18.2-57.2. Assault and battery against a family or household member; penalty.
A. Any person who commits an assault and battery against a family or household member is guilty of a Class 1 misdemeanor.
B. Upon a conviction for assault and battery against a family or household member, where it is alleged in the warrant, petition, information, or indictment on which a person is convicted, that such person has been previously convicted of two offenses against a family or household member of (i) assault and battery against a family or household member in violation of this section, (ii) malicious wounding or unlawful wounding in violation of § 18.2-51, (iii) aggravated malicious wounding in violation of § 18.2-51.2, (iv) malicious bodily injury by means of a substance in violation of § 18.2-52, (v) strangulation in violation of § 18.2-51.6, or (vi) an offense under the law of any other jurisdiction which has the same elements of any of the above offenses, in any combination, all of which occurred within a period of 20 years, and each of which occurred on a different date, such person is guilty of a Class 6 felony.
C. Whenever a warrant for a violation of this section is issued, the magistrate shall issue an emergency protective order as authorized by § 16.1-253.4, except if the defendant is a minor, an emergency protective order shall not be required.
D. The definition of “family or household member” in §16.1-228 applies to this section.