Is Domestic Violence a Felony?

Posted on August 11, 2022

Domestic violence is generally charged as a misdemeanor offense rather than a felony, unless the incident caused an injury or involved a deadly weapon or child victim.

A pattern of abuse can also elevate domestic violence to a felony. So can a violation of a restraining order. The laws in different states will determine which circumstances create a felony offense.

When is domestic violence a misdemeanor?

Generally, domestic violence is a misdemeanor offense. State criminal laws will usually list a set of circumstances that will elevate the offense to a felony. If those circumstances are not present, the offense will be prosecuted as misdemeanor domestic violence. It is helpful to see domestic violence as a misdemeanor, by default.

When is it felony domestic violence?

Domestic violence becomes a felony-level offense when certain elements are present. What circumstances elevate the offense to a felony will depend on the state. Generally, the following factors can turn a case of domestic violence into a felony:

• the victim suffered bodily harm or a corporal injury, especially if it was a severe injury,
• the victim was a child or a senior citizen,
• a child witnessed the violence,
• a weapon was used,
• there are prior instances of abuse, or a documented history of abuse,
• a prior conviction for a domestic violence offense, and
• the defendant violated a restraining or protective order to commit the violence.

For example, in California, there is no single domestic violence law. Instead, there are a handful of different laws that cover domestic violence in certain situations. Only some of these offenses can be charged as felonies. Felony-level offenses of domestic violence include:

• causing a corporal injury (Penal Code 273.5 PC),
• child abuse (Penal Code 273d PC),
• child endangerment, when the child is at risk of suffering a great bodily injury (Penal Code 273a PC),
• elder abuse (Penal Code 368 PC),
• making criminal threats (Penal Code 422 PC),
• stalking (Penal Code 646.9 PC), and
• aggravated trespass (Penal Code 601 PC).

Many of these offenses can be charged as either

• a felony or as
• a misdemeanor.

California recognizes wobblers as a crime classification. This allows prosecutors to pursue either felony or misdemeanor charges, based on the circumstances of the case and the defendant’s criminal history. Many other states do not have wobblers. Their state criminal laws will state what types of charges can be filed for these offenses.

What are the penalties of a conviction?

When domestic violence charges are misdemeanors, they carry up to 1 year in jail. If they are felony charges, they can carry more than 1 year in prison.

Each state is going to have its own range of

• fines and
• jail or prison sentences, as well as
• sentencing enhancements.

In California, for example, the most common type of felony-level domestic violence is when it involves a corporal injury. Felony convictions for this offense carry:

• up to $6,000 in fines, and/or
• 2, 3, or 4 years in state prison.^[1]

These penalties are subject to several sentencing enhancements. These include:

• an additional, consecutive sentence of 3, 4, or 5 years in prison if the domestic violence caused a great bodily injury,^[2] and
• fines of up to $10,000 and 2, 4, or 5 years in state prison, if the defendant has a prior conviction for certain domestic violence offenses in the last 7 years.^[3]

Those eligible prior convictions include:

• corporal injury on a spouse (Penal Code 273.5 PC),
• assault or battery resulting in a serious physical injury (Penal Code 243(d) PC),
• assault or battery with a caustic chemical (Penal Code 244 PC),
• assault with a stun gun (Penal Code 244.5 PC),
• assault with a deadly weapon (Penal Code 245 PC),
• sexual battery (Penal Code 243.4 PC), and
• battery on a spouse (Penal Code 243(e) PC).

However, when a crime is one of domestic violence, there are often other consequences of a conviction. These can include:

• mandatory jail time,
• strict terms of probation,
• paying restitution to the victim or to a domestic violence fund for victims’ programs,
• counseling,
• community service requirements,
• immigration consequences, especially if the offense was a felony,
• restraining orders,
• temporary or permanent loss of the right to bear arms,
• child custody implications,
• a criminal record, and
• a “strike” under California’s Three Strikes law.

Additionally, some of the repercussions of a domestic violence case are felt outside of the criminal justice system. A domestic violence case – even a pending one that has not yet led to a conviction – can also impact family law issues in civil court, such as:

• child custody arrangements, and
• divorce or legal separation agreements.

The victim may even file a personal injury case in civil court. This claim would demand financial compensation for things such as:

• medical bills,
• lost wages,
• pain and suffering, and
• emotional distress.

What are domestic violence charges?

There is no specific crime of domestic violence. Instead, domestic violence charges are certain crimes that are committed against certain people. Different states will vary on the details.

However, most states consider the following crimes as potential domestic violence crimes:

• assault,
• battery,
• sexual assault,
• criminal threats,
• stalking,
• trespassing, and
• child abuse.

Generally, if any of these offenses are committed against the following people, it becomes domestic violence. Many states define potential victims as “household members,” or those in an “intimate relationship” with the defendant. Frequently, they will include:

• a current or former spouse or domestic partner,
• a current or former fiancé,
• a current or former cohabitant, or live-in romantic partner,
• someone the defendant is seriously dating, or had been seriously dating,
• a person with whom the defendant has a child,
• the defendant’s child, and
• a blood relative of the defendant, like a sibling or parent.

Some states also protect in-laws and extended family members, like aunts or nephews.

If an eligible crime is committed against a protected victim, it becomes a crime of domestic violence. These criminal offenses sometimes come with longer prison sentences. The penalties of a conviction or even of an arrest are also much broader.

The breadth of these potential penalties, like a mandatory arrest or a restraining order, is meant to protect the victim from further harm. State laws protect people in close relationships with the defendant because they are often unable to completely sever the contact.

However, the additional penalties of a domestic violence offense make these charges especially problematic for the accused. They can be put through an arrest and forced to leave their home until the court hearing. These repercussions also make domestic violence allegations ripe for abuse. Alleged victims can falsely accuse defendants of domestic violence out of revenge or for their own personal interests.

What are some common legal defenses?

Defendants who have been accused of domestic violence or domestic abuse can have several legal defenses available to them, depending on the circumstances. Establishing an attorney-client relationship with a criminal defense attorney is the best way to know which defense strategy will be the best option.

One of the most common defense strategies is that the alleged victim is making false allegations. It is not uncommon for claims of domestic battery to be made by people looking for leverage or revenge. The heightened penalties of a conviction and the immediate consequences of the allegation make domestic violence a common tool to get it.

It is also a strong defense if the violence was accidental. The violent crimes that are the basis for domestic violence charges generally require intentional conduct. It is up to the district attorney and law enforcement to prove this intent. A criminal defense lawyer from a reputable law firm can fight the criminal charges by presenting evidence that shows that there was no intent.

Self-defense is also an option. Many domestic violence allegations stem from fights. If the defendant did not initiate the violence and was defending himself, herself, or someone else, it can be a strong defense.

1. California Penal Code 273.5(a) PC. ↑
2. California Penal Code 12022.7(e) PC. ↑
3. California Penal Code 273.5(f) PC. ↑