Jamahl Kersey June 1, 2016 No Comments

Physical Discipline Vs. Domestic Violence

Domestic violence is defined as physical violence that occurs between individuals in a family unit or those in a dating or other romantic relationship. The activities that fall under the category of “domestic violence” are wide and varied, but the focus is on activities that cause harm to the individual against whom violence is committed. What many parents find themselves wondering, however, is, “When parents physically discipline their children, does this amount to domestic violence?

The Short Answer

Parents who physically discipline their children are not automatically committing an act of domestic violence. There are several forms of physical discipline that are legally acceptable when dealing with a child, and parents shouldn’t worry that they’ll be charged with domestic violence when physical discipline is necessary to control a wayward child. Many parents believe that failure to appropriately discipline their children is worse than disciplining too harshly, and some children simply don’t respond to time-outs or groundings. Discipline is different from violence and does not fall into the same category.

The Blurred Line

The fact that typical discipline isn’t domestic violence doesn’t excuse parents from using excessive force when disciplining their child. There are, of course, several very obvious signs that discipline has crossed the line. These include:

  • Visible or excessive bruises on a child caused by discipline, especially those that clearly have the imprint of a hand or object
  • Broken bones
  • Any damage to the head, especially damage resulting in concussion
  • Trauma inflicted by a sharp object
  • Malnourished children who have been starved as a form of discipline
  • Burns
  • Patchy balding from pulled hair
  • Teeth missing in an abnormal pattern
  • Isolation or an unwillingness to interact with others due to fear of the parent

Domestic violence might also be identified in a child who routinely flinches away from an angry adult or who expects severe physical punishment for small infractions. It’s also important to note that parents should moderate punishment based on infractions: extreme physical punishment for small mistakes or any type of violence that is not part of a punishment can also be viewed as domestic violence.

Unfortunately, there isn’t a clear line between domestic violence and abuse and mere physical discipline. What type of discipline is considered acceptable? Most people would agree that a spank on the bottom or a smack on the hand is appropriate discipline, but what about smacking the mouth of a smart-mouthed child? Determining the difference between discipline and domestic violence is much more difficult in this case.

Defining the Line

Each state has a different definition of the line between domestic violence and discipline. Some don’t make the guidelines particularly clear due to a desire to leave most basic discipline decisions to the parents. Others have stricter guidelines. Typically, however, the distinction between domestic violence and discipline comes down to a handful of questions.

  • What was the intent of the action? An abuser will tend to act in anger, while a parent disciplining a child will punish in order to create better behavior in the future.
  • Is the child endangered by the action? That is, does it cause unnecessary or excessive physical harm? If not, the action was discipline, not violence.
  • Does the force used take into account the child’s age and size? An action that would be considered violent against a small child is more likely to be discipline against an older child.

Many times, the question of domestic violence versus physical discipline comes down to the personal determination of the individual who reports the violence, the investigating parties, and, ultimately, a juror. While reasonable physical discipline is never the same thing as domestic violence, discipline that crosses a line may be seen that way. If you’re struggling with a domestic violence charge as a result of disciplining a child or looking to understand the legal ramifications of violence committed against your child, contact us today. Experienced legal representation is critical to ensuring that you are protected to the fullest extent of the law.

Jamahl Kersey May 10, 2016 No Comments

How Domestic Violence and Abuse Differ

Domestic violence and abuse are terms that are often used interchangeably. However, these crimes differ on factors such as longevity, cause, and context. Additionally, these offenses differ in the manner of which the public views them. The victims of both these offenses suffer greatly in short and long-term consequences; however, below are overviews of these acts of violence and how they differ from one another.

Domestic Violence Overview 

Domestic violence is a violent confrontation between family or household members. Additionally, domestic violence is a very broad offense as this crime affects both people and property.

Types:

Physical

Harm such as biting, hitting, battery with a weapon, and incredibly gruesome offenses such as breaking another’s bones are considered physical forms of domestic violence.

Sexual

Rape, molestation, and unwanted sexual contact are forms of sexual domestic violence. It is important to note that neither gender is excluded when it comes to sexual domestic violence.

Threatening

Instilling the fear of being harmed in a victim is a form of domestic violence. Whether the threat turns physical or not, it is still a crime.

Property Damage

Damaging a family or household member’s property is a form of domestic violence. This fact is perhaps the biggest way in which domestic violence and abuse differentiate.

How this Differs from Abuse:

Domestic violence is different from abuse as a result of being a far broader offense. A victim of domestic violence does not need to be physically or emotionally harmed, but can have their personal belongings damaged or destroyed. Domestic violence can be a long or short-term offense and is most common amongst couples. Domestic violence is a crime most often committed against women.

Abuse Overview 

Abuse is often a long-term offense and is defined as the maltreatment of a person or animal. Males and females of all ages fall victim to abuse every year.

Types:

Physical and Sexual

Like domestic violence, physical abuse is anything that causes physical harm to a victim. Sexual abuse is, of course, the result of any type of unwanted sexual contact.

Financial

Controlling someone’s finances without consent is known as financial abuse. This is a common type of abuse amongst the elderly.

Emotional

Perhaps the most ignored type of abuse is emotional. Making another person feel hopeless, insulting another person, or controlling another person are all types of emotional abuse.

How this Differs from Domestic Violence:

Domestic violence is sometimes a long-term offense, but it can also be a one-time crime. The heat of the moment can result in domestic violence and the offense may never happen again. Of course, that is not always the case and domestic violence is an incredibly serious offense. Abuse, however, is a crime that offenders work up to accomplishing.

Additionally, crimes against children are more commonly referred to as abuse. Very rarely can causing harm to a child constitute heat of the moment occurrences. Spousal or elderly abuse are almost always long-term offenses because the abuser needed to instill a feeling of worthlessness into their victims before having their crime escalate to a more violent offense. Abuse almost always has devastating consequences and requires far more steps than an arrest to stop.

It is conclusive that there are a lot of similarities between domestic violence and abuse. The most distinguishable fact of these two crimes is typically the longevity of the offenses. Both domestic violence and abuse are violent, tragic crimes in which the offender deserves to be punished. Of course, both of these crimes are incredibly serious regardless of their circumstances and require assistance to prevent the offenses from happening again.

For more information on domestic violence, abuse, and further punishable offenses, please contact us today.

Jamahl Kersey February 23, 2016 No Comments

The Difference Between Self Defense and Assault in California

There are many areas of California law that can be difficult to understand. One such area is the question of self-defense vs assault. If you’ve been accused of or charged with assault or battery, but you believe you were defending yourself, you need to know the differences between these concepts and when each one applies.

Assault

In California, assault is a specific crime defined in the Penal Code. According to P.C. Section 240:

An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.

Assault is not the same crime as battery, which is defined as “any willful and unlawful use of force or violence upon the person of another.” In other words, two things separate assault from battery:

  • The intent to commit a violent injury (rather than simply using force or violence), and;
  • The present ability to actually commit that injury.

Both assault and battery have several grades depending on the severity of the crime and the presence of aggravating circumstances. Aggravated assault, for instance, might be cited if you violently injured someone in order to commit a further felony (such as murder).

Different grades of assault and battery carry different punishments. The punishment can also change if you committed the assault or battery in a certain location (such as a school) or against a certain class of person (such as an off-duty police officer).

If you’ve been accused of assault or battery in California, you should immediately contact a California defense lawyer. It’s important to understand the specifics of your case and to take aggressive action to defend yourself as soon as possible.

Self-Defense

If you’ve been accused of assault, battery, or other violent crimes, you may be able to claim self-defense. In California, there are several laws and statutes that apply to the concept of self-defense. In general, however, for the concept of self-defense to apply, the person claiming this defense must:

  • Have had some reasonable fear of imminent injury to themselves or another person;
  • Have believed that the use of force would prevent this injury, and;
  • Have defended themselves in proportion to the perceived threat.

In other words, you can only claim self-defense when your actions were taken to defend yourself physically from an immediate (not a future) threat.

The level of justified self-defense is proportional to the level of the threat perceived. Under California law, homicide is justifiable if you reasonably believe you were in danger of being killed or gravely injured. Less severe threats do not justify homicide, but they can be a defense against a charge of assault or battery.

California law also contains a Castle Doctrine, which governs self-defense actions taken against an invader in your own home. California’s Castle Doctrine reads:

Any person using force intended or likely to cause death or great bodily injury within his or her residence shall be presumed to have held a reasonable fear of imminent peril of death or great bodily injury to self, family, or a member of the household when that force is used against another person, not a member of the family or household, who unlawfully and forcibly enters or has unlawfully and forcibly entered the residence and the person using the force knew or had reason to believe that an unlawful and forcible entry occurred.

In short, this means that any person defending against a stranger who invaded their home is reasonably assumed to be in fear of their life. This allows the justification of homicide or other less severe forms of self-defense.

It’s also important to remember that the burden of proof does not lie on you when you are claiming self-defense. If you believe your actions were justified, it’s up to the prosecution to prove beyond a reasonable doubt that they were not.

There are also other factors a judge or jury may consider when weighing your self-defense claim. These factors can include:

  • Previous threats made against you by the other party;
  • Whether the other party previously injured or harmed you;
  • Whether you reasonably associated someone with another person who threatened you.

If you aren’t sure whether your actions constitute self-defense in California, feel free to contact us today.

Defendants’ Rights in California

If you have been formally charged with domestic battery or aggravated domestic battery in the state of California, or if you are suspected of a domestic violence crime, you should know that you have certain rights, often referred to as “defendants’ rights.”

Defendants Rights

Defendants’ rights include the following, under the U.S. Constitution and/or the California Constitution:

  • Representation by an attorney. Defendants are guaranteed the right to have an attorney represent them against criminal charges, paid for by the government if the defendant is unable to pay the attorney’s costs.
  • Adequate representation. In addition to the right to have an attorney, defendants also have the right to have an attorney who will represent the defendant adequately against the charges. Note that “adequate” representation does not mean “perfect” representation, but it does mean that a defendant has the right to a licensed attorney who understands criminal law, court proceedings and will act on the defendant’s behalf.
  • A speedy trial. Both constitutions guarantee the right to a speedy trial that is not delayed without good reason, and a delay may not prejudice the defendant’s position in any way. There are also specific time requirements that govern how long an individual can be under arrest without being formally charged, and during what time frame a trial must start if a defendant enters a “not guilty” plea to charges.
  • A public trial. Defendants have the right to public proceedings, except in some circumstances involving crimes against children.
  • A jury trial. Defendants have the right to have their criminal case tried before a jury of their peers. This may be waived in criminal matters with the consent of both parties.
  • Compel witnesses to testify. Defendants have the right to call their own witnesses to help in their defense. If you have been charged or convicted with a crime, make a list of people who may have seen or heard what happened, and get this list to your attorney as soon as possible.
  • Be present for witness testimony against the defendant. Your accuser may call witnesses (including themselves) to testify about alleged crime. Defendants have the right to be confronted by the testimony of any witnesses, to look them in the eye in court, and to have the defense question the witnesses’ statements on cross-examination.
  • Right not to testify. Defendants have the right to maintain their silence, and the fact that they choose to remain silent cannot be used against them. Remember that criminal defendants are presumed innocent until proven guilty. No defendant can be compelled under the law to testify. Instead of testifying on their own behalf, defendants have the right to rely on the evidence presented in their case, and may argue that the prosecution failed to prove guilt beyond a reasonable doubt.
  • Understand proceedings. A defendant who does not speak English well is entitled to an interpreter throughout the proceedings.
  • No “double jeopardy.” Defendants have the constitutional right to not be put through a criminal trial more than once for the same crime.
  • Due process. The constitution says that each of us has the right to be protected from attempts that are either wrong, or are not supported by the facts, to deprive us of our lives or our liberty.
  • Appropriate punishment. If found guilty of having committed a crime, a defendant is entitled to punishment that is not cruel or unusual.

Being accused or charged with a crime is not something any of us want to have happen, but if it happens to you or someone you love, having an experienced attorney behind you every step of the way is an important first step. If you have been accused of, or charged with domestic battery or aggravated domestic battery, contact us for more information about how we can help you protect your rights.