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Kansas Domestic Violence

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Several years ago, jurors were summoned to hear a trial in the Johnson County, Kansas District Court.  Before the presentation of evidence, the judge read the Complaint, the document that alleges the criminal act committed to the jury.  The Complaint alleged that the defendant intentionally broke his wife’s coffee mug, which is considered Criminal Damage to Property.  This is a crime punishable by up to 6 months in the county jail as a class B misdemeanor.  One juror raised his hand and asked whether the judge would dismiss the case if he simply paid for the coffee mug himself, thereby excusing the jurors from duty.  There were a few laughs in the courtroom, but the judge did not dismiss the case.  It was litigated and tried in front of a tax paying jury that took time off from their jobs, spouses, and children.  Fortunately, the defendant was acquitted. This is a real story. Domestic violence offenses can be seemingly minor and almost silly, like the one above.  But they can also be incredibly serious, including crimes such as stalking, eavesdropping, aggravated battery, aggravated assault, criminal threat, and rape. Domestic violence cases often involve long-standing and deeply dysfunctional relationships, with a host of complicated issues, and they are often fraught with emotion. These cases can cause a large disruption to families no matter what the allegation is.  Domestic violence cases have their own unique repercussions and can significantly affect your rights in the future. Whether a domestic violence case appears to be a minor allegation, a serious one or anything in between, one should hire an experienced, knowledgeable, respected, and aggressive criminal defense attorney to guide them through the process.

What is a Domestic Violence Offense?

Kansas law defines “domestic violence” as an act or threatened act of violence against a person with whom the offender is involved or has been involved in a dating relationship, or an act or threatened act of violence against a family or household member by a family or household member. Domestic violence also includes any other crime committed against a person or against property, when it is directed against a person with whom the offender is involved or has been involved in a dating relationship or directed against a family or household member by a family or household member. “Family or household member” means persons 18 years of age or older who are spouses, former spouses, parents, stepparents, children, stepchildren, persons who are presently residing together or have resided together in the past, and persons who have a child in common regardless of whether they have been married or have lived together at any time. Family or household member also includes a man and woman if the woman is pregnant and the man is alleged to be the father, regardless of whether they have been married or have lived together at any time.

The Start of a Domestic Violence Case

One of the first questions individuals who have a domestic violence case ask their attorney is “why was I arrested?!”  In the broken coffee mug situation, the wife may have never wanted her husband arrested, and stated she didn’t want to “press charges.”  The husband may have offered to pay for the mug to the police or to his wife.  The husband could have been extremely professional and respectful to the police when they arrived.  The police officers called to the scene may not have wanted to arrest the husband. The bottom line, however, is that if the police receive a call involving a domestic violence situation in Kansas, someone is likely going to be arrested.  Kansas statute K.S.A §22-3207 mandates that every law enforcement agency in the State write a domestic violence policy, and that policy must have a provision that if the police have probable cause (which is legally a very low standard to meet) that an individual committed a domestic violence offense, they are going to jail.  The days of victims declining to “press charges” and the police leaving are long, long gone in Kansas. In the coffee mug case, if the police had probable cause to believe that the wife had an interest in the coffee mug, did not consent to the coffee mug being broken, and the husband broke the mug intentionally in Johnson County, Kansas, (or whatever applicable Kansas County) he will very likely be arrested.  He will be taken to the Central Booking Station in Olathe, Kansas.  This is not the local police department.  This is a real “jail” which also houses people arrested for crimes such as murder and kidnapping.  The defendant will likely be held overnight and without bond until the next afternoon. In most Kansas courts the alleged victim will be provided information about community resources like Safehome and shelters, counseling and the ability to obtain a civil restraining order to further protect them from the other person. They likely will be told to be in court at the first court appearance so that they can have input with the court as to whether they want to have any contact with the accused person during the pendency of the case.  In Johnson County and some other counties, prior to the first court appearance, court services officers will prepare a “Threat Assessment” where they attempt to assess for the court what level of threat the accused person represents to the alleged victim, others or themselves.

No Contact Order

Usually, if the alleged victim says that he/she wants to have contact with the alleged offender, the court will order that there be no contact between the two of them for 72 hours, as a “cooling off” period because emotions are likely running pretty high. The court may then order that they can have contact going forward, if the victim consents to it, but “no violent contact”. That means there is to be no fighting, yelling, etc. If the alleged victim does not want the person to come home or to have contact, the court may order that there is a “no contact” order. That means that the offender is to have no contact with the other person whether it be in person, by phone, in writing, by text or email or through a third person. They are not to go to the other person’s home or work or otherwise be where the other is located for any reason.  The court will likely allow a neutral third party to go and get the accused person’s clothing and personal items for the house and may have the third party coordinate parenting time with the parties’ children. This can become a complicated situation when the accused is not allowed to go back to his or her home, or when the parties have children between them that they must exchange and parent, or when they work together or otherwise would normally be in the same place at the same time.  These no contact orders cannot be ignored by an individual charged with a domestic violence offense.  If a prosecutor or law enforcement officer finds that a defendant has violated a no contact order, he is likely to be arrested, put in the county jail, and have a higher bond placed on him.   Worst yet, he will likely be charged with a new misdemeanor case of violating a contact order.

Protection from Stalking and Protection from Abuse Orders

Victims in domestic violence cases sometimes will file a Protection from Staking Order, or a Protection from Abuse Order, against the defendant soon after he or she is arrested, although victims can do this without a criminal case filed against the defendant.  These are civil orders that are very similar to a no contact order in the criminal case.  Violation of these orders could result in an additional criminal charge or charges. “Stalking” means an intentional harassment of another person that places the other person in reasonable fear for that person’s safety. “Abuse” means the occurrence of one or more of the following acts between intimate partners or household members: (1) Intentionally attempting to cause bodily injury, or intentionally or recklessly causing bodily injury, (2) Intentionally placing, by physical threat, another in fear of imminent bodily injury, or (3) Engaging in any sexual contact or attempted sexual contact with another person without consent or when such person is incapable of giving consent. If an individual alleges that stalking or abuse have occurred, and filed a protection order, it is imperative that the defendant be correctly advised, and he or she should hire an attorney familiar with these cases.  These are civil cases which allow different defense strategies, as you can force the other party to testify under oath before a trial (deposition), force them to answer questions in writing prior to a trial (interrogatories), and force them to deny or admit certain facts (request for admissions).  These cases sometimes can involve negotiated agreements between the parties, where the protection order case will be dismissed as long as certain conditions by the parties are met.  If you are facing a protection from abuse or protection from stalking case, with or without an accompanying criminal case, you should seek an experienced and dedicated attorney to assist you.

Conditions of Bond

Other conditions of bond, besides a no contact order, may include house arrest, drug or alcohol monitoring and counseling, mental health or anger control counseling. Not surprisingly, many domestic violence cases also occur during divorce proceedings and the court may defer to the divorce court’s orders about child custody, parenting time or contact between the parties.  The court also may defer to the civil orders in a protection from stalking or protection from abuse case.  It is important to remain compliant on bond, as failure to do so will lead to a bench warrant and an arrest.

Consequences of Domestic Violence Cases

Domestic violence can create an even greater negative impact on the accused person than ever before.  There is a stigma attached to people charged with any crime that uses the phrase “domestic violence” whether they are family members, friends, or an employer.  There are also unique ramifications that can occur to people charged with these types of offenses.

Loss of Rights to Own a Firearm

Many people think that loss of firearm rights can occur only with felony convictions.  However, if you are convicted of a misdemeanor domestic violence offense you can lose your right to own, possess, or sell firearms.  It is imperative that the accused person has an attorney advise them of these rights and how to preserve them. According to the federal statute, 18 USCA § 922 (g) (9), the law will remove a person’s firearm rights if he or she is convicted of any misdemeanor crime of domestic violence.  However, the federal law defines “domestic violence” somewhat differently than Kansas.  Under federal statute 18 U.S.C. § 921(33), domestic violence is a crime that “has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim.” It is important for a defense attorney to advise their clients on issues of firearm ownership and firearm rights when they are charged with domestic violence offenses.  An attorney must have some knowledge of how the federal statute reads, and apply it to their client’s case.  Failure of an attorney to properly advise their client on a domestic violence case can jeopardize the client’s 2nd Amendment rights to own and possess firearms.

Anger Control or Batterer’s Intervention Classes

If the judge determines that domestic violence was committed, a “domestic violence” designation will usually be attached to the case.  This designation triggers two things.  (1) the defendant must undergo a domestic violence offender assessment conducted by a certified batterer intervention program; and (2) the defendant must follow all recommendations made by that program, unless otherwise ordered by the court or the department of corrections.  The recommendation is typically that the defendant complete anger control classes, or batterer’s intervention classes. Anger control classes are the lesser of the two.  Anger control classes typically last about 12 weeks, with one session per week.  You usually only have two unexcused absences allowed.  These classes cover topics such as stress time outs, assertive communications, and recognizing anger cues. In rare instances, a court may allow for a one day anger control class to satisfy the anger control requirement. Batterer’s intervention treatment is a minimum of 24 weekly group sessions. Intake and orientation are in addition to these sessions. Each session is a minimum of 90 minutes. It takes about 6 months to complete the program.  The Attorney General’s guidelines for Batterer’s Intervention Programs states that: “The mission of batterer intervention in Kansas is to hold batterers accountable, create nonviolent behavior, and promote safety for victims. On a wider scale, batterer intervention seeks to create social norms that reject rather than affirm or ignore battering within intimate family and household relationships. Batterer intervention participants may also need additional services for mental health/psychiatric assistance, drug and alcohol treatment, parenting education, or other issues. Batterers should be screened for these issues and referred to appropriate resources, but these treatments should be in addition to, not in lieu of, a batterer intervention program.” There is a way to avoid either program, even if one is convicted or diverted of a domestic violence case.  The court should not place a domestic violence designation on the case if (1) the defendant has not previously committed a domestic violence offense or participated in a diversion upon a complaint alleging a domestic violence offense; and (2) the domestic violence offense was not used to coerce, control, punish, intimidate, or take revenge against a person with whom the offender is involved or has been involved in a dating relationship or against a family or household member.  Again, it is important to have a good attorney to guide you through these issues.

Diversion

Diversion may be an option if the person has no prior domestic violence offenses on his or her criminal record. Diversion is a program whereby you enter into an agreement with the prosecutor to follow the terms and condition of a diversion agreement for a certain period of time, usually 12 months. If you successfully comply with the requirements of the diversion agreement the charge is dismissed and there is no conviction.

Probation and Incarceration

If you are convicted of a domestic violence offense, you could be subject to probation, time in the county jail, or prison.  The result depends on a variety of factors, such as the severity of the misdemeanor or felony, the performance of a defendant on bond, the judge and courtroom you are in front of, the defendant’s criminal history, the desires of the victim, and whether the victim and defendant have had previous interaction.  The strategies and risks of defending these cases and obtaining a dismissal, an acquittal, or a lesser sentence require a knowledgeable and zealous attorney.

You Need an Experienced Criminal Defense Attorney

Domestic violence is a common and very real problem. It occurs within the most intimate of relationships and can lead to serious long-term consequences for victims and for the children of these relationships. Not only is there the possibility of having a criminal conviction on your record, but a domestic violence conviction can affect gun rights, military careers, and immigration status. A domestic violence conviction is a deportable offense and will often result in non-citizens being deported. A domestic violence charge can also affect whether you see your children, or in what capacity. It can also have other impacts on your family life, professional life and your freedom. Unfortunately, the domestic violence laws can also be used by one partner in a relationship against another to try to gain some control in the relationship or the upper hand in a divorce or custody battle. Again, they are often complicated and fraught with emotion. An experienced attorney is required to navigate a charge of domestic violence.

If You Are Involved in a Domestic Violence Case with a Spouse or Loved One You Should Consult Attorneys Experienced in Criminal and Family Law

Domestic violence charges oftentimes overlap with family law matters such as divorce and post-divorce proceedings.  At Fairbanks DeMarco, LLC, attorneys who specialize in both areas can assist and guide you.  We are aggressive, knowledgeable and experienced. We look to maximize the result, minimize risk, and abide by our client’s desires and wishes.

Why Fairbanks Demarco?

Fairbanks DeMarco will provide quick, effective, honest, and aggressive advice on all family and criminal matters.

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