Defense of Domestic Violence Charges
Domestic Violence Lawyer
Domestic violence charges are, perhaps rightfully so, the political hot-button case of the current time. Certainly, within Georgia courts, the view towards domestic violence allegations has changed dramatically over the last few years, and whether you face misdemeanor or felony domestic violence charge, you need an attorney that understands how to tactfully address the allegations, yet protect your interests. The criminal defense attorneys at Sessions & Fleischman can help you if you have been charged with a domestic-violence related offense in Georgia.
Important Considerations in The Defense of Your Domestic Violence Case
- Early mitigation steps can make a tremendous difference in these cases.
- Preserving 911 calls, texts, voicemails, emails, and other records can make all of the difference in the results in these case.
- Abide by your bond conditions, even if that means having no contact whatsoever with your spouse and/or child.
What Steps Should You Take to Help in The Successful Resolution of Your Domestic Violence Case
Whether the charge is ultimately dismissed or if it eventually goes to trial, you need to be prepared to show the Court that you understand the seriousness of the charges. Obviously, domestic violence is a serious charge, and when it occurs, it can have a tremendous impact and exact a huge cost upon victims. We strongly recommend that most people facing serious family violence charges undergo some steps to address concerns that the Court may have. In this effort, we generally recommend that our clients consider a state-certified family violence intervention program.
The basic requirements for a family violence intervention program are as follows:
- General Model. While certified programs may use various curricula in running programs, all certified programs will use an educational model of group intervention that adheres to the following principles regarding family violence:
- Power and Control. Program topics must follow a model that identifies and challenges family violence as an overall system of physical and emotional abuse where the participant chooses to use tactics of power and control over a victim.
- Beliefs and Social Context. Program topics shall consistently identify and challenge personal beliefs the participant holds and social contexts that support those beliefs that motivate the use of power and control tactics over the victim.
- Effects. Program topics shall consistently identify and hold the participant accountable for the physical and emotional effects on victims of the participant’s violence and abuse.
- Appropriate Intervention Practices. Appropriate intervention practices are identified in Department SOP. Every program must, at a minimum, incorporate the following intervention practices:
- holding the participant accountable for past, present and future acts of family violence;
- appropriately identifying and challenging tactics of power and control;
- appropriately identifying and challenging myths and belief systems that support family violence; and
- identifying the effects a participant’s abusive actions have on others, including children.
- Prohibited Intervention Practices. Prohibited intervention practices are detailed in Department SOP. The following is a list of intervention practices that are specifically prohibited from inclusion in FVIP’s:
- any intervention approach that blames or suggests there is any behavior on the part of the victim that causes, provokes, or excuses abuse;
- any intervention approach that does not state clearly that participants bear sole responsibility for their choices;
- any couples, marriage, or family therapy or treatment;
- individual therapy or treatment by the program.
Ga. Comp. R. & Regs. 125-4-9-.06
What is “VAWA”, and how does it impact Georgia domestic violence charges?
VAWA is the acronym for the Violence Against Women Act. The Violence Against Women Act is federal legislation enacted to provide financial and technical assistance to communities throughout the United State. The VAWA seeks to create programs, policies, and practices with the goal of ending domestic violence, dating violence, sexual assault, and stalking.
The VAWA seeks to impose harsher new penalties upon convicted defendant and additional aid to the victims of domestic violence, dating violence, sexual assault, and stalking.
HOW DOES THE VAWA IMPACT THE PROSECUTION OF DOMESTIC VIOLENCE IN GEORGIA?
Policies and statutes are great, but what really drives policy change is, you guessed it, money. And there is lots of money distributed in connection with VAWA. Over $4 billion in grants and cooperative agreements have been distributed to further the goals of the VAWA by the federal government.
Practically speaking, these grants translate into specialized prosecutorial units aimed solely at the prosecution of violence against women. Below if the grant description for the VAWA prosecutor’s position in the DeKalb County Solicitor-General’s Office:
WHY DOES IT MATTER IF YOUR PROSECUTOR’S JOB WAS CREATED AS A RESULT OF A VAWA GRANT?
Anecdotally, what we see is that prosecutors who have jobs simply because of a grant with a singular purpose tend to be some of the most aggressive and zealous prosecutors that you will encounter. For whatever reason, VAWA prosecutors and others that have a grant-funded job tend to closely guard those cases that come within their “kingdom”.
HOW DOES VAWA IMPACT THE DECISION THAT YOU SHOULD MAKE IN SELECTING A CRIMINAL DEFENSE LAWYER?
If you know that your prosecutor is likely to understand the nuances of the type of criminal charge that you face and you know that the prosecutor is likely to be aggressive in seeking your conviction, the importance of selecting a qualified criminal defense attorney is greater.
Our Georgia criminal defense attorneys understand domestic violence cases and how to successfully defend them.
WHAT HAPPENS WHEN THE VICTIM IN A DOMESTIC VIOLENCE CASE DOESN’T WANT TO PROSECUTE?
One of the most common questions I am asked is: what happens to my domestic violence case or charge if the victim does not want to prosecute? As most people pretty quickly realize, the choice of whether a domestic violence case is dismissed does not rest with the victim. Instead, the decision about whether a domestic violence case is dismissed rests with the prosecutor. State v. Santiago, No. A15A1283, 2015 WL 4997743, at *1 (Ga. Ct. App. Aug. 24, 2015), illustrates this point. In Santiago, it was not so much the victim that wanted the case dismissed. Instead, it was the Judge that ultimately dismissed the case. From the dismissal, the State filed an appeal.
The record shows that Santiago was indicted for false imprisonment (OCGA § 16–5–41(a)) and family violence battery (OCGA § 16–5–23.1(f)) for gagging his wife, binding her wrists together, and beating her with a cord. Pursuant to a plea agreement, Santiago pled guilty to false imprisonment in exchange for the State’s dismissal of the battery count. At the guilty plea hearing, the trial court found that Santiago’s plea was freely, voluntarily, and knowingly made, and it accepted Santiago’s plea. As agreed to by the parties, the State recommended a total sentence of 10 years to be served on probation.During the sentencing phase of the hearing, the trial court questioned Santiago and his wife, and discovered that Santiago beat his wife after learning that she was having an affair. Shortly after the incident, the couple reconciled, and they were together at the time of the plea hearing. The trial court asked the State’s prosecutor whether the State still wanted to prosecute the case, and the prosecutor responded in the affirmative. The court then asked Santiago and his wife whether they “get in bed together and get it on?” When they responded that they did, the trial court stated that “[t]his is beginning to get a little ridiculous,” and asked Santiago, “Would this conviction be something that you think she would be holding over your head to make you do what she says?” Santiago responded, “Yes.” Defense counsel then asked the trial court to consider misdemeanor treatment, and the prosecutor objected. The trial court then sua sponte dismissed the case without elaboration.
State v. Santiago, No. A15A1283, 2015 WL 4997743, at *1 (Ga. Ct. App. Aug. 24, 2015)
The [S]tate has both the duty and the right to protect the security of its citizens by prosecuting crime. Because the purpose of criminal law is to serve the public functions of deterrence, rehabilitation and retribution, it is the [S]tate, not the victim, that has an interest in criminal prosecutions.(Citations and punctuation omitted.) Ambles v. State, 259 Ga. 406, 406–407(1), 383 S.E.2d 555 (1989).
ONE THING MADE READILY APPARENT BY SANTIAGO IS THAT THE TRIAL COURT DOES NOT HAVE THE AUTHORITY TO DISMISS A DOMESTIC VIOLENCE RELATED OFFENSE ON THE BASIS THAT THE VICTIM DOES NOT WISH TO PROSECUTE
While the trial judge has the duty and power to control the proceedings of the court, that power is “subject to the proviso that in so doing a judge does not take away or abridge any right of a party under the law.” (Citation omitted.) State v. Brooks, 301 Ga.App. 355, 359, 687 S.E.2d 631 (2009). “Our adversary system of criminal justice demands that the respective roles of the prosecution and defense and the neutral role of the court be kept separate and distinct in a criminal trial.” Bass v. State, 285 Ga. 89, 91, 674 S.E.2d 255 (2009). Thus, while a trial judge has broad discretion to control court proceedings, the judge should not usurp the role of either the prosecutor or the defendant’s counsel.
Here, it was the prosecutor’s decision whether to prosecute the case in light of evidence that Santiago and his wife had reconciled. While the trial court may have disagreed with that decision, the record reveals no legal basis for the trial court to take away the State’s right to prosecute Santiago. Not only do we find a lack of legal basis for dismissing the case, we consider the trial court’s questions to Santiago and his wife about her adultery, their sex life, and whether she would hold a conviction over his head highly inappropriate and irrelevant. By dismissing the case without any legal basis and over the State’s objection, the trial court impermissibly abridged the State’s right to prosecute Santiago. See, e.g., Brooks, supra, 301 Ga.App. at 359–360, 687 S.E.2d 631; State v. Perry, 261 Ga.App. 886, 887, 583 S.E.2d 909 (2003). Accordingly, we reverse.
State v. Santiago, No. A15A1283, 2015 WL 4997743, at *1-2 (Ga. Ct. App. Aug. 24, 2015)
WHAT CAN YOU DO TO STOP THE PROSECUTION OF YOUR SPOUSE FOR DOMESTIC VIOLENCE CHARGES?
If you called the police in connection with an argument with your spouse, you may be experiencing very real difficult stopping the prosecution against your spouse or loved one. It can be extremely frustrating when you – as the alleged victim in the domestic violence case – cannot stop the prosecution. However, there are things that you can do.
In this video, criminal defense lawyer Ben Sessions discusses some of the steps that you, as the spouse in a domestic violence case, can take to attempt to stop the prosecution of a domestic violence case.
If you intend to stop the prosecution of your spouse in a family violence case prior to a trial, you will need to be proactive and engage in the process with the prosecutor. If you do not speak with the prosecutor and express why you do not wish for the case to be prosecuted, you need to know that the case will very likely proceed to a trial and that may cause a lot of stress for you and/or your spouse.
You Must Follow Your Bond Conditions if You Face a Domestic Violence Charge in Georgia
If you do not follow the bond conditions imposed upon you when released from jail, you can be re-arrested. In most cases, if you violate your bond conditions and you are re-arrested, you will not be issued another bond. Judges take the bond conditions in cases involving domestic violence allegations very seriously. If you need a modification of your conditions, contact the criminal defense attorneys at Sessions & Fleischman to consider a modification motion.
Call Sessions & Fleischman Now to Speak with An Experienced Criminal Defense Lawyer
Are you looking for a Georgia criminal defense lawyer to help you address family violence charges? Look no further than the Session Law Firm. Ben Sessions has been recognized as a SuperLawyer by the Georgia SuperLawyers Magazine and Atlanta Magazine, and he maintains a Superb/10.0 Rating with AVVO. We will develop a strategy unique to your case and circumstances. If you are facing domestic violence charges, contact us today to discuss your case confidentially. (470)225-7710.