Commonly Charged Domestic Offenses
The most commonly charged domestic offense is called Disorderly Conduct. This is considered a Class B Misdemeanor, which carries penalties of up to 90 days in jail and a $1,000 fine or both. Section 947.01 of the Wisconsin Statutes defines Disorderly Conduct as activity that is violent, abusive, indecent, profane, boisterous, unreasonably loud or otherwise disorderly. It is further defined as conduct that tends to cause or provoke a disturbance.
It is not required that an act of Disorderly Conduct take place in a public setting. The law states that Disorderly Conduct can happen in a private place, such as a home. In addition no actual disturbance must occur. The law considers conduct that is likely to cause a disturbance to be disorderly. Typical examples of cases in which prosecutors charge Disorderly Conduct include loud yelling, pushing and throwing items around a home during a fight.
Although it is easy for a prosecutor to charge disorderly conduct, these can be among the most difficult for a prosecutor to prove to a jury. This is because jurors are often asked to determine whether the conduct truly rises to a level that merits a criminal conviction and violates the community’s sense of what is unlawful.
Another common domestic offense is assault. In Wisconsin, a physical assault is referred to as a Battery. There are several categories of battery in Wisconsin. The type of battery charged typically depends on the injury someone receives. The most frequent type of battery offense prosecutors charge is misdemeanor battery, contrary to section 940.19(1) of the Wisconsin Statutes. This is a Class A misdemeanor offense and carries penalties of up to 9 months in jail, $10,000 or both.
Before a person can be convicted of misdemeanor battery, the prosecution must show the defendant intentionally caused bodily harm to another person and did not have consent to do so. Bodily harm simply means pain. Prosecutors usually charge battery in cases involving punching, kicking, and sometimes slapping.
More serious, felony battery charges depend on the type of injury or the intended act. For example, prosecutors frequently will charge Substantial Battery, contrary to section 940.19(2) of the Wisconsin Statutes, in situations where the intent was only to cause another person pain, but the actual injury was substantial in nature. Substantial injuries include broken bones, stitches, staples, temporary loss of consciousness, sight or hearing, a concussion, or a loss or fracture of a tooth. Substantial Battery is a Class I felony and carries maximum penalties of up to three years and six months in prison, a $10,000 fine or both.
Charges of Aggravated Battery might be filed in cases where the intention was to cause great bodily harm to another person and the resulting injury was either one of great bodily harm or bodily harm. For an injury to be considered
great bodily harm, it must be one that creates a substantial risk of death, permanent disfigurement or permanent loss or impairment of a bodily organ or function. The maximum penalty for an Aggravated Battery is up to 15 years in prison, a $10,000 fine or both.
There also are unique battery cases in which the injury stemming from the assault is simple bodily harm; however, the prosecution is able to file felony charges. One circumstance is when the conduct creates a substantial risk of great bodily harm. This type of Aggravated Battery is a Class H felony and carries penalties of up to six years in prison, $10,000 or both. Another circumstance is called Battery: Special Circumstances, often referred to as Battery to an Injunction Petitioner.
In Wisconsin, it is possible for courts to grant injunctions against individuals under certain circumstances. In the context of a domestic abuse situation, injunctions often prohibit one person from contacting another person. The person who files the restraining order is known as the petitioner, and the person against whom the restraining order is sought is the respondent. Section 940.20(1m) makes it a felony if the respondent to an injunction intentionally causes bodily harm, which is pain, to the petitioner. In these types of cases, prosecutors usually also file a charge known as Violation of a Domestic Abuse Injunction.
There are defenses to a battery charge, including the act of self-defense. The privilege of self-defense allows a person to use physical force against another person or property under certain circumstances. For example, a person who reasonably believes he is in actual or immediate harm may use the amount of force reasonably necessary to prevent or terminate the threat.
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When confronted with a possible domestic situation, Wisconsin police officers are required to make a physical arrest if they determine probable cause for a crime exists, the facts of the situation constitute “domestic abuse,” and the people involved meet the definition of a domestic relationship under the law. The officer is required to make an arrest if there is evidence of a physical injury to a victim or if the officer reasonably believes continued domestic abuse against the victim is likely. Police officers also must make an arrest if the crime is the violation of a restraining order or an injunction.
Although the Wisconsin law requires police officers to make an arrest in situations of domestic abuse, many police departments have officers make a physical arrest even if the statutory requirements are not met. This is known as a “pro-arrest” domestic violence policy. In these circumstances, the police officer looks at the nature of the relationship between the parties.
For example two adults who are romantically involved, but who have never lived together nor have a child in common, might fall into this category. Many police officers will make a physical arrest under these circumstances. However these are not domestic-abuse cases under the law, because they do not fit the statutory definition.
Domestic Offenses and Disorderly Conduct
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Domestic Related offenses are often referred to as a domestic violence or domestic abuse case. However it is not just the type of crime that makes a case "domestic" in nature. It is the relationship between the people involved. Section 968.075 of the Wisconsin Statutes defines domestic abuse incidents. To be considered a domestic crime in Wisconsin, the crime must be committed by an adult against:
A current or former spouse
An adult whom the person currently lives or used to live with
An adult with whom the person has a child in common
This definition creates a variety of possible situations that may be considered "domestic," even though the individuals involved in the relationship are not romantically involved. For example, roommates in a platonic living arrangement are viewed as in a domestic relationship under the law. Similarly, siblings who lived together as children and now live apart may be considered to be in a domestic relationship during their adulthood.
Because Wisconsin law considers a 17-year-old person an adult for purposes of prosecution, a teenager is considered to be in a "domestic" relationship with his or her parents if the crime is alleged to have been committed against the parent. In an odd legal twist, however, the same parents would not be deemed to be in a domestic relationship with that child. This is because the 17-year-old is only considered to be an adult for the purposes of a criminal prosecution. That child is not considered to be an adult if he or she is the victim of a crime.
Not only is the domestic relationship defined in Section 968.075 of the Wisconsin Statutes, but the type of conduct necessary to be considered "domestic abuse" is set forth. To constitute the domestic abuse, the act must include one or more of the following:
An intentional infliction of physical pain, physical injury or illness
An intentional impairment of physical condition
First-degree sexual assault, second-degree sexual assault, or third-degree sexual assault
A physical act that may cause the other person to reasonably fear that he or she is about to experience an act that results in the intentional infliction of physical pain, physical injury, illness, intentional impairment of physical condition or a sexual assault as described above.
False Imprisonment, Intimidation of Victim, Criminal Damage to Property, Stalking
The crime of False Imprisonment also is frequently charged in the context of domestic violence cases. This Class H felony offense, contrary to section 940.30 of the Wisconsin Statutes, carries a maximum penalty of up to six years imprisonment, $10,000 or both. While the name of the charge conjures images of chains and dungeons, the actions that may lead to a False Imprisonment charge are typically less dramatic. The crime of False Imprisonment happens when one person intentionally confines or restrains another person without that other person’s consent and with knowledge that he has no lawful authority to do so.
Another frequent charge in cases of domestic abuse is Intimidation of a Victim, contrary to sections 940.44 and 940.45 of the Wisconsin Statutes. This crime occurs when a person attempts to prevent or dissuade an alleged victim of a crime, or someone acting on the alleged victim’s behalf, from reporting a crime to law enforcement. Intimidation of a Victim may either be issued as either a misdemeanor or a felony charge. To be charged as a felony, the act must include a threat or use of violence or damage to property.
A common question from defendants in Criminal Damage to Property cases is how they can be charged with a crime for damaging their own property. This question typically surfaces in situations where one spouse damages a household item during an argument, such as a television, cellular phone or automobile. How is it possible to be charged criminally for damaging your own property?
Criminal Damage to Property, contrary to section 943.01 of the Wisconsin Statutes, is the intentional damage to the physical property of another without that person’s consent. This charge may be issued either as a misdemeanor or felony, depending on the monetary value of the item damaged. In State v. Sevelin, the court ruled that if the property is commonly owned, such as marital property, the charge is sustainable because the damage is to the other person’s legal interest in the property. There are several defenses to a criminal damage to property charge, including consent, ownership and the value of the item.
Other frequently charged domestic offenses include Criminal Trespass to Dwelling, contrary to section 943.14 of the Wisconsin Statutes, a Class A misdemeanor that carries a maximum penalty of up to 9 months incarceration, a $10,000 fine or both; Unlawful Use of the Telephone, contrary to section 947.012 of the Wisconsin Statutes, a Class B misdemeanor that carries a maximum penalty of 90 days in jail, a $1,000 fine or both; Recklessly Endangering Safety, contrary to section 941.30 of the Wisconsin Statutes, a Class F felony that carries penalties of up to 12 years and six months imprisonment, $25,000 or both; Strangulation/Suffocation, contrary to section 940.235, a Class H felony that carries a maximum penalty of up to six years imprisonment, $10,000 or both; and Stalking, contrary to section 940.32 of the Wisconsin Statutes, a Class I felony that carries penalties of up to three years and six months imprisonment, $10,000 or both.
Prior to making an arrest for stalking, some police officers will issue a stalking warning letter. The purpose of issuing a warning letter is two-fold. Law enforcement often hopes that an intervention and a warning, though short of arrest, will stop a person from engaging in behavior that could be considered stalking. Even non-threatening behavior such as phone calls, sending messages, and even gifts may be considered stalking under certain circumstances. Law enforcement also uses these letters to put people on notice that their conduct could be considered stalking. This makes proving a stalking case easier for a prosecutor. If you receive a stalking warning letter, you should contact a lawyer immediately.
Firearm Prohibitions and Domestic Abuse Convictions
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A conviction for a domestic violence offense may have serious consequences as it relates to an individual’s right to own or possess a firearms, ammunition or explosives. Until the mid-1990s, most people who lost their right to own or possess a firearm did so because of a felony conviction. In 1996, however, federal lawmakers passed an amendment to the federal budget bill of 1997, making it unlawful for a person convicted of misdemeanor domestic violence offenses to possess a firearm.
This federal law is known as the Domestic Violence Offender Gun Ban and is commonly referred to as the Lautenberg Amendment or Lautenberg Gun Ban after its sponsor, Senator Frank Lautenberg of New Jersey. The act prohibits the shipment, transport, ownership and use of guns or ammunition by people who are convicted of misdemeanor domestic violence offenses. It also outlaws knowingly selling or providing a firearm or ammunition to a person who has been convicted of a violent domestic violence offense.
Under the federal law, a misdemeanor crime of domestic violence is any state or federal misdemeanor offense that has, as an element of the crime, the use or attempted use of physical force, or the threatened use of a deadly weapon that is committed by a current or former spouse, a parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabitating 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. The definition applies whether or not the particular statute specifically defines the offense as a domestic violence misdemeanor.
A person will not be considered to have been convicted of a domestic violence offense for purposes of federal law if the conviction has been expunged or set aside, or is an offense for which the person has been pardoned unless the court makes a record that includes an order for permanent revocation of the right to bear arms. It also may be possible to challenge a prior conviction if the defendant is able to demonstrate he did not knowingly and intelligently waive the right to have the case tried by a jury, by guilty plea or otherwise.
A common question is whether the crime of domestic disorderly conduct could trigger the firearm ban. Depending on the facts contained in the criminal complaints and the language used in the charging paragraph, it is possible. However, it is also possible to work with a prosecutor to eliminate problematic language from a charging document.