Because of increased financial stress and anxiety, domestic violence rates increased significantly during pandemic lockdowns.[1] Unfortunately, the domestic violence rate has continued to increase since 2020. The exact rate of increase varies, largely depending on who you ask.

Other things are more certain in this area. For example, domestic violence usually has criminal and civil consequences. Most law enforcement agencies have mandatory arrest policies. If officers suspect domestic violence occurred, the aggressor immediately goes to jail. Additionally, officers must usually inform victims of their right to obtain a protective order in civil court.

As the rate of domestic violence increases, the role of a Rochester criminal defense lawyer remains the same. Both parties have important legal rights in this area. Alleged victims have the right to seek protection, and defendants have the right to present their side of the story. An attorney is a strong voice for defendants in criminal and civil court cases.

Domestic Battery

Usually, domestic battery is a misdemeanor in New York. When possible, prosecutors enhance these charges to aggravated assault, a felony. The matter usually goes to a designated domestic violence court in both cases. Prosecutors in these courts have special training and, in many cases, access to additional resources.

Elements of the Case

Misdemeanor domestic battery is basically a harmful or offensive touch. Furthermore, the alleged victim must be in a protected class. Almost all domestic battery cases involve husbands and wives or estranged husbands and wives. Other protected classes include two people who are related by blood or marriage and current or former dating partners.

There’s a difference between a physical injury and a harmful or offensive touch. Domestic battery charges could hold up in court even if the alleged victim wasn’t physically injured. An injury just makes it easier for prosecutors to establish the intent element.

Usually, aggravated domestic battery involves a weapon or a serious injury. Almost any solid object that’s larger than a toothpick could be a weapon in this context. The serious injury must usually be something bad enough to put the alleged victim in the hospital.

Resolving the Case

Lack of evidence, specifically issues with the complaining witness, is usually the best defense against both kinds of domestic battery.

Technically, an alleged victim is a material witness. Therefore, the alleged victim cannot drop criminal charges. However, if the alleged victim refuses to cooperate, things get very tough for prosecutors. Typically, they can either subpoena the alleged victim and force him/her to testify or use an obscure loophole in the hearsay rule to admit part of the police report into evidence. Both these things are very rare. Usually, prosecutors would rather drop the matter and offer a favorable plea deal.

This arrangement usually involves reduced charges, like reducing aggravated assault to ordinary assault, or a reduced sentence, typically probation. Since domestic violence courts usually handle these cases, the conditions of probation often include anger management and other such classes.

Protective Orders and Rochester Criminal Defense Lawyers

Many states have civil and criminal protective orders. Civil orders are usually broader than criminal orders. Only criminal protective orders are available in New York. If an alleged victim cannot find a criminal judge, a civil judge may issue a protective order, but these orders are only valid for four days.

Types of Protective Orders

A judge may grant a temporary protective order based solely on the alleged victim’s affidavit. This order is usually a bare-bones order containing a keep-away order and an anti-stalking order. Judges may include other provisions based on good cause, such as an order excluding a defendant from a shared residence.

Temporary protective orders are valid until the defendant is served with the order and appears in court. Following a full hearing, a judge may grant a final protective order. These orders last for up to two years unless the alleged victim proves aggravating circumstances, such as:

  • Physical injury (which is usually present),
  • Use of a weapon,
  • History of repeated violations,
  • Defendant’s criminal history, and
  • Defendant’s injury of other people in the household.

An aggravating circumstances protective order could last up to five years in New York. Permanent protective orders often include additional provisions as well, such as financial support orders and firearms surrender mandates.

Protective Order Defense

Lack of evidence is also a defense in these matters. Obviously, the alleged victim is willing to press the issue. However, the alleged victim’s testimony might be tainted. For example, many alleged victims were drinking at the time of the incident. Memory and perception are question marks in these situations. Other times, a parallel proceeding is ongoing in family court. Very few alleged victims fabricate stories to gain leverage in a family court proceeding, but these things do happen.

An out-of-court protective order settlement usually features a shorter duration and less onerous legal provisions.

Book a Consultation with an Experienced Criminal Attorney in Rochester

There’s a big difference between a criminal arrest and a criminal conviction. Contact the Law Office of Frank Ciardi for a free consultation with an experienced Rochester criminal attorney. The sooner you call us, the sooner we start fighting for you.




The information in this blog is provided for general informational purposes only and should not be used as a substitute for legal counsel on any subject matter.

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