I am writing this article to educate the general public in Traverse City about the consequences of a domestic violence prosecution to a family. Domestic violence is a crime that has become a hot topic for prosecutors, Courts, and our Michigan Legislature. The hallmark of the domestic violence program in the 86th District Court is the use of the Spousal Abuse Act MCL 769.4a. This statute creates a deferred sentence that allows a first-time domestic violence offender to be placed on probation for a year, and if the probationer completes probation successfully, there is no public record of the crime. By all measures, this is a great solution or plea bargain for a domestic violence defendant. All prosecutors have a knowledge of the deferred sentence procedure and expect a defendant to use it. However, prosecutors, the Courts, and the Legislature believe early intervention into a family that is suffering from domestic violence in the home is important. This belief has created an environment where prosecutors will charge defendants for seemingly minor offenses, just to achieve early intervention, whether it is justified or not. Locally, in Grand Traverse, Traverse City, Antrim County, and Leelanau County, the 86th District Court sentences all first-offense domestic violence probationers to 36 consecutive weeks of the Men’s Program through the Women’s Resource Center. Another very problematic element of a domestic violence prosecution is the no-contact bond condition. When an accused person is released from jail on bond after being charged with domestic violence, the Court may attach conditions for the defendant’s release. In the domestic violence environment, first and foremost, is that the defendant may not have any contact with the alleged victim, and if the alleged victim is living at the defendant’s home, the defendant is prohibited from going home after they are released from jail. This no-contact situation may last weeks, months, or for the entire probationary period.
Domestic violence is a horrible crime, make no mistake. Some people endure physical abuse for years behind closed doors, even in Traverse City. However, some couples just have a single bad argument or fight. I believe all couples or families argue at some time or another. My goal is to educate couples so they may not be sucked into a domestic violence prosecution for a minimal battery. What is important to know is that whether a defendant bloodied their loved one or simply bumped a victim while arguing, the prosecutor and Courts are going to treat the defendant the same. Their goal is to achieve jurisdiction over the defendant to effectuate early intervention. This creates a climate where minor harm is prosecuted. So many defendants and their families go through the domestic violence nightmare. The nightmare situation I am referring to is where a defendant is charged with domestic violence for a minimal battery. Once a defendant is under the domestic violence umbrella, the no-contact bond condition removes the defendant from their home, the defendant’s family immediately feels a financial hardship, the defendant has to refute wild accusations of past abuse, and the victim recants allegations contained in the police report about the defendant’s actions.
It doesn’t take much to be charged with domestic violence in Traverse City
1. Be mindful of just how little it takes factually to be charged with domestic violence. It doesn’t take much. It is important to know the difference between an “assault,” a “battery,” and domestic violence. A battery is any harmful or offensive contact with another person or something associated with that person. An assault is conduct that makes someone fear an imminent battery, normally verbal threats of harm. Domestic violence is either an assault or battery upon a person where the perpetrator has a romantic relationship, current or former, with the victim, has a child with the victim, or the perpetrator and the victim live in the same household. Taking a phone from someone trying to communicate is a crime separate from domestic violence. Additionally, taking any object from someone unwillingly is considered a battery, so long as a harmful offensive contact is made during the process. So removing alcohol from someone would be enough to be charged with a battery or domestic violence. Throwing things around the house can be construed as a domestic violence charge, particularly if the victim is in the same room. Punching holes in walls may be construed as a threat of violence, which is the assault side of “assault and battery.” Privacy doesn’t matter in the domestic violence realm. I have had to defend people who tried to lock themselves in a room, only to have the opposing party try to force themselves into the room to continue the argument. The parties struggle with each other by pushing on the door and later someone is charged with domestic violence. A person storming out of a room can be domestic violence as well. If someone attempts to leave a room and they are blocked by their significant other standing in the doorway, pushing them aside to leave the room is enough physical contact to be charged with domestic violence. I have had to defend a young man who poured beer on his girlfriend as she walked out. Spitting or other forms of behavior designed to insult someone are enough to be charged with domestic violence. Why are minor incidents charged as domestic violence? The prosecutor and the Court believe that early intervention is the best way to combat domestic violence. To achieve the goal of early intervention, there has to be a conviction, and it doesn’t matter how they get there. I hope couples appreciate how little is necessary factually to be charged with domestic violence. People need to appreciate this low factual threshold when they speak to 911 dispatch officers or the police.
Companion charges to domestic violence
2. Do not prevent anyone from using a communications device during an argument. Typically this crime involves a telephone. Often this includes a fighting party either calling friends, family, or the police for aid. But the opposing party terminates the communication, normally during the argument. Prevention of communication comes in many forms. It can be hiding a phone, unplugging a phone line, pulling power cords, or even smashing cellphones or pulling a landline phone off the wall. As soon as one of the arguing parties prevents someone from communicating, they will be charged with a one-year misdemeanor, MCL 750.540, at a minimum. This will happen even if there is no physical contact or battery between the arguing parties. To the prosecutor and the Courts, this is a form of domestic violence and a significant element of an abusive relationship, that being excessive control over a partner. A defendant charged or convicted of this offense will be treated by the Court like an abuser and will likely face a no-contact bond condition and have probation that includes 36 weeks of the Men’s Program.
Don’t call the police just to remove your significant other
3. Do not call the police just to have your significant other removed from the house. Normally this kind of request happens after or during a large argument by a couple. This also happens between parents and their children. If the call is made to 911, it will be transmitted to the road patrol as a domestic violence call. When this happens, the officers will arrive at the caller’s home not to provide an eviction, but to investigate and arrest someone for domestic violence. The police will likely separate the arguing parties and then question both of them until they find something they can use for an arrest. Keep in mind, the officer’s goal is to arrest someone just to diffuse the situation. Victims in this situation often complain to me about how they didn’t call the police to arrest someone, rather they called seeking help with removing someone from their house. However, a victim should call the police when they are threatened with violence or presently experiencing physical harm by their significant other.
The victim doesn’t decide when the case is dismissed
4. The prosecutor, not the victim, decides who is charged with a crime and when to dismiss the complaint against the defendant. The caption on all the legal documents for a criminal case is always the following, “The State of Michigan(plaintiff) vs. John Doe(the defendant).” The victim is not a party to the lawsuit. I have to explain this over and over again to my domestic violence clients, both the defendants and the victims. The defendant will say, “I know she doesn’t want me in jail or even charged. She was just as guilty as I was. Call the victim and tell her to tell the prosecutor to drop the charges.” I am sorry, it doesn’t work that way. The prosecutor decides when and if a case is dismissed, not the victim. Similarly, what I hear from the victim, “I went down to the prosecutor’s office and told the prosecutor that this was all blown out of proportion and that nothing really happened and they should dismiss the case.” I give the victim the same speech and answer. The prosecutors in Traverse City and the 86th District Court are very aggressive. They do not need a willing victim to achieve a guilty verdict and conviction. The Michigan legislature has enacted special evidence rules just for domestic violence cases; these evidence rules allow a prosecutor to impeach a recanting victim in domestic violence cases. The recanting victim fact pattern happens often in domestic violence cases, I would say it is routine. The police often use a person’s ignorance of who actually makes the decision to charge a crime as a tool to extract information. The police will ask the victim, “Do you want to press charges?” The victim will answer no. The police officer will then tell them, “Ok, I will note that in my report, but will you tell me what happened so I can finish my investigation?” The victim, erroneously thinking they have eliminated any criminal prosecution, then tells the officer anything asked of them. The officer then creates a report and submits it to the prosecutor’s office, and the prosecutor makes the decision to charge or not, not the victim or the police officer. What some people call a lie by a police officer; other people call good police work.
The police will as questions about the history of abuse
5. Be mindful of the domestic violence victim interrogation and what the police are really after. As I mentioned above, the prosecutor is skilled at achieving convictions with or without the support of the alleged victim. The police who respond to a residence want to make an arrest just to defuse the situation. The police will, of course, ask questions regarding what happened to the victim which prompted the call for aid. But they will also ask questions stretching far beyond the immediate event. The police will attempt to elicit a past history of domestic violence. They will also probe and explore signs of domestic violence, such as control of the victim, control over money, alcohol involvement, past relationships of the subject/perpetrator, past criminal history of the perpetrator, and much more. Still, further, they explore verbal abuse at the hands of the significant other. Verbal abuse that isn’t necessarily criminal behavior, but admissible under MCL 768.27b & MCL 768 27c will be gathered to allow the prosecutor to create a picture of a long abusive relationship. They may also inquire as to this abusive behavior, verbal or physical, against other members of the household, like the children of the couple. Again, this is information that is far beyond the incident that prompted the call for aid, but information the prosecutor will use against the defendant. If the prosecutor and police can find former girlfriends, boyfriends, or former spouses of the subject, they will interview them and call them to testify against the defendant at trial. Because of the special evidence rules for domestic violence, the police may repeat in court nearly everything the victim states about the perpetrator, past and present. This past allegedly abusive past history is ripe evidence for coloration by the prosecutor. As mentioned above, the prosecutor will introduce this past history in Court to the jury, then argue the defendant was acting in conformity with his past abusive ways during the current incident. The introduction of this past bad character evidence about the defendant at trial has the potential to turn a triable case for the defense into a losing cause. What is important to know is that it all begins with the interrogation of the victim by the police. The police will ask leading questions to extract the information they may use to develop an abusive history. I have heard from victims that the police, “put words in my mouth.”
Dispatch officers will also perform interrogations for domestic violence calls in Traverse City
6. Be mindful of the interrogation conducted by 911 dispatch officer. All dispatch calls are recorded. These calls are routinely played in Court for consideration by the jury. Similar to the police interrogation above, a dispatch officer will attempt to extract as much information as possible about the current event and past of the subject/perpetrator. Nearly all 911 dispatch officers will instruct the alleged victim to lock themselves in a room until the police arrive, good advice considering all the serious violent crimes that stem from domestic violence. Once the victim is secure, they will start their interrogation. It doesn’t matter what is said to the police upon arrival if the victim implicates the perpetrator in the 911 call, the prosecutor will build their case around the call alone. People calling 911 need to be mindful of what is said to the dispatch officer. Exaggerations stated to the 911 officer as to injuries and the events are not easily undone. Keep in mind the prosecutor will believe the victim’s version of the events expressed in the 911 call over everything else. When the victim speaks to the prosecutor and tries to tell them the 911 call information wasn’t correct, the prosecutor will just ignore the victim and proceed with the case. At trial, the prosecutor will play the 911 recording before the jury to impeach a recanting victim.
No contact bond condition for a domestic violence charge in Traverse City
7. Appreciate that in every domestic violence case, there will be a no-contact bond condition for the defendant. I don’t believe people fully appreciate the hardship of this bond condition. A no-contact bond provision will be put in place in every domestic violence case. After arrest, the defendant will go before a magistrate or judge to have a bond set. If the paper states domestic violence, the defendant will be prevented from contacting the alleged victim. The defendant may not go home. One local Judge tells defendants that if they are at Meijer and they see their spouse walk in, they have to immediately leave the building without speaking to her. In most cases, the no-contact bond will remain in place at least until the defendant’s pretrial, one week to a month, depending on the Court system. If the relationship is that of parent and teenage child, there is a good chance the courts will lift the no-contact bond condition early. Everyone else has to wait. The Courts in Traverse City, Leelanau County, and Antrim County require the defendant to complete three group sessions at the Men’s Program, which will take three weeks. Similarly, the alleged victim has to attend three sessions with a counselor before the Court will lift the no-contact bond condition. If the victim doesn’t cooperate and attend the counseling, the no-contact bond provision will remain in place. In nearly every case, a family has to maintain two residences for several weeks, sometimes longer. A defendant has to coordinate with the prosecutor in order to retrieve clothing from their home. The no-contact bond condition almost immediately creates a financial hardship for the family. Paychecks that would ordinarily be deposited into a joint family account are now cashed by the spouse individually. Children do not understand what is going on. If the alleged domestic violence occurred in the presence of children, sometimes the Courts prevent contact with the defendant and the children. If the alleged violent act actually did involve the child in some way, the Court will place a similar no-contact provision between the child and the defendant. It is possible for the Court to grant supervised visitation between a defendant and a child. Finally, if the defendant cannot post bond some local jails prevent the alleged victim from visiting the defendant. Basically, the alleged victim controls the no-contact provision. Until the alleged victim tells the Court they want it lifted, it will remain in place throughout the Court’s jurisdiction over the defendant, which could last a year. An even more problematic condition occurs when the victim speaks to the prosecutor and inadvertently tells the prosecutor that the victim has communicated with the defendant. When this happens, the defendant’s bond is normally revoked and the defendant is remanded to jail. Now the defendant loses his job. And if the victim was the one that initiated the communication, the victim feels horrible because it was their actions that put their loved one in jail. The Courts strictly enforce the no-contact provision, the first thing I tell my client is don’t play games with the no-contact bond.
A recanting victim will face a difficult ordeal
8. Domestic violence is a crime, once reported, that can’t be easily undone. Some of the worst complaints I hear about domestic violence prosecutions come from the victims. Some police will stretch a victim’s statements into very damning accusations. Furthermore, the answers from interrogations into a defendant’s past conduct, both physical and verbal abuse, are often colored and tainted by the police. The police will pick and choose a couple of statements out of a lengthy interrogation. Many of these recanting witnesses express utter hopelessness and frustration with their position. Seemingly minor incidents are exaggerated into the current charge and an abusive history by their loved ones. The recanting witness will speak to the prosecutor in an attempt to supplement or explain the information they provided to the police on that night. All too often, their clarifications are summarily dismissed by the prosecutor. Furthermore, if the recanting witness persists in attempting to un-do what was said, some prosecutors become insulting and demeaning. The recanting witness then attends Court to testify, they try to explain what happened, but they are impeached by the prosecutor with the victim’s own statements as interpreted by the police officers on the scene.
Domestic Violence in Traverse City defense.
I hope this article helps couples and families avoid being drawn into a domestic violence prosecution. It is always best to walk away from a heated argument. Once the police are involved, a family can expect at least one hard month while they are in the domestic violence meat grinder.
It is not impossible to defend against a minor domestic violence offense.
About the author:
Please call today for an appointment, 231-883-4170. I am a criminal defense attorney practicing in Traverse City, Grand Traverse County, Leelanau County, Antrim County, Benzie County, Kalkaska County, Wexford County and all of northern Michigan. Thanks for reading my blog.