Although a local woman obtained a restraining order against her ex-husband, the dispute still ended violently.
43-year-old Robert Eichen shot himself in an office complex parking lot after pursuing his ex-wife with a firearm and shooting at her at least once. Mr. Eichen apparently owned several guns, and police removed them all after the judge issued the protective order. But he somehow acquired another weapon and confronted his ex-wife at her job.
Community Overcoming Relationship Abuse spokesperson Melissa Lukin remarked that many alleged abusers violate restraining orders. “The sad fact is that if somebody’s not interested in paying attention to that, there is not much one can do,” she said.
What is Domestic Violence?
“Broadly speaking, domestic violence in California is 1) any physical, emotional, verbal, or other attack that is 2) between two people who share a close relationship, at least as far as the law is concerned,” according criminal lawyer Vikas Bajaj, who regularly handles domestic abuse cases. The above story represents a typical domestic violence incident in California, because it involved an escalating series of events that culminated in violence between a husband and a wife.
At its core, domestic violence is any violent act that disrupts a family unit, and as we all know, a “family” is very broadly defined in American society. So, California Penal Code Section 273.5 specifies the relationships involved.
- Spouse or Former Spouse: California does not recognize informal marriages in most situations, so the alleged attacker and alleged victim must have been legally married in California or elsewhere at one time or another.
- Cohabitant or Former Cohabitant: Domestic violence is one of the few areas where a common-law spouse is also a legal spouse. Section 273.5(c) specifies that one spouse may not unilaterally declare a common-law marriage.
- Current or Former Dating Partner: Another part of the Penal Code rather disturbingly defines a “dating relationship” as “frequent, intimate associations primarily characterized by the expectation of affectional or sexual involvement independent of financial considerations,” but even that definition is rather subjective.
- A Mother or Father: The child must be a minor and presumably must be living with either the alleged victim or alleged attacker.
Note that this section says nothing about roommates or caregivers, so while such violence does not qualify as “domestic violence” per the Penal Code, alleged victims may be able to obtain protective orders, as outlined below.
What Are Some of the Laws Regarding Domestic Violence in California?
Because of the ongoing prevalence of domestic violence, and because such a high percentage of violence crimes (as high as 15 percent, according to some estimates) involve some form of domestic relationship, there are a number of laws on the subject. Some common ones include:
- Domestic Battery – PC 243(e)(1): If a person uses force or violence against a spouse, child, boyfriend/girlfriend, or other family violence victim, the defendant can spend up to a year in jail and/or be fined up to $2,000. Since the prosecutor does not need to show a visible injury, this Class A misdemeanor is one of the most commonly-charged domestic violence crimes.
- Corporal Injury (Domestic Violence) – PC 273(5)(a): Prosecutors bring these charges if the defendant inflicted a “corporal injury” that caused a “traumatic condition.” It is more like common-law assault, since the prosecutor must prove that the victim sustained a physical injury, like a cut or bruise; depending on the severity of the injury, domestic violence could be a misdemeanor or a felony.
- Child Abuse – PC 273(d): Simple spanking does not qualify, but if the child sustains any physical injury, including a long-lasting red mark, the act is considered “cruel or inhuman” and criminal charges are nearly always in order.
The stalking/harassment laws are scattered in other parts of the Penal Code. One of the most common ones is criminal threats (PC 422). To convict the defendant, the prosecutor must prove that the defendant intended to scare the victim and the victim was, in fact, scared. Criminal threats can be either a misdemeanor or a felony.
Consequences of a Domestic Violence Conviction
In addition to mandatory jail time, probation, fines, and other traditional criminal consequences, domestic violence convictions may have consequences in both federal and family courts.
For a noncitizen, a domestic violence conviction is a crime of moral turpitude that usually triggers deportation procedures.
Citizens and noncitizens alike face probable consequences in family court. A domestic violence conviction is nearly always admissible in a custody proceeding, no matter how long ago the criminal case went to court. These convictions may be admissible for property division and alimony purposes as well, unless the underlying behavior did not affect the children currently before the court.
Restraining Orders in Domestic Violence Cases
Under California law, a Domestic Violence Restraining Order may be valid against a person related to the alleged victim by blood or marriage (including two people who have a child together) or a romantic partner; in other types of situations, such as an allegedly abusive roommate or caregiver, a similar type of restraining order may be available. There are basically three types of DVROs:
- Emergency: Judges issue these orders without hearings if there is good reason to believe that the alleged victim, or someone else, is in immediate danger of serious bodily harm. Normally, these orders follow police intervention and they are valid for at most five days.
- Ex Parte: These orders are usually valid for up to three weeks, and judges usually issue them if there is some evidence of an imminent physical threat, so complaints based solely on harassment or stalking-type behavior are unlikely to qualify.
- Restraining Order: Even if a judge denies an ex parte order, the matter is automatically set for hearing. After listening to both sides, the judge may issue a long-term restraining order that lasts up to five years and can be renewed for another five years, or even for an indefinite period, after that.
These orders may contain a wide range of provisions, such as an order for the alleged abuser to stay away from the alleged victim, provisions for temporary support, and even a “kick-out” order that directs the alleged abuser to vacate a shared residence.