When people think of domestic violence, they usually think of child abuse. Child abuse may or may not be a component of the domestic violence. There are times when spouses, partners or people dating do not have children of their own or children in common with the spouse, partner or people they are dating.
The criminal act does not have to be committed within the setting of the home, either. It may be committed outside the home, it may be committed at the place of work of the victim, even in public places such as restaurants, bars or parks. What makes the violence “domestic” is the close intimate personal relationship between the parties. The intimate relationship is within the context of a family or household. For this reason, the crime of domestic violence is any criminal act committed against a spouse, former spouse, cohabitant, former cohabitant in a home, a parent, a partner in a dating relationship.
There is no crime in the California Penal Code that punishes “domestic violence”. What happens is, the person accused of domestic violence will be charged with battery, inflicting bodily injury, corporal injury resulting in trauma, criminal threats, etc. When a person is charged with domestic violence crimes, it is usually one of the acts penalized in Sections 240-248 and/or Sections 270-273 of the California Penal Code.
What is domestic violence?
It may be one act or a pattern of abusive acts or behaviors in a relationship so that the abuser gains or maintains control over the abused. There are many forms and manifestations of abuse. The most visible is physical abuse but other forms of abuse may be emotional, psychological, sexual or economic. Stalking and threats are also forms of abuse.
What are punishable acts under the category of “domestic violence”?
Acts of domestic abuse may be punished as assault under Section 240. An assault is any unlawful attempt with a present ability to commit violent injury on another. Conversely, acts of domestic abuse may be punished as acts of battery. Battery, as defined in Section 242 of the California Penal Code is any willful and unlawful use of force or violence upon another person.
What qualifies or distinguishes domestic abuse from ordinary assault or battery is that acts of domestic abuse are defined and penalized under Section 242 (e) (1). It is battery committed against a spouse, a person the abuser is living with, or a person who is the parent of the abuser’s child. It may also be committed against a former spouse, fiancé or fiancée or one with whom the abuser has a dating or engagement relationship.
What relationship must the abuser and the abused have?
A spouse is a person who is legally married to the abuser. A partner is a person who has a domestic relationship with the abuser (they live in one house and share the household responsibilities and expenses). A former spouse is a person from whom one has been divorced or their marriage annulled.
A fiancé or fiancée is a person who is engaged to be married to the abuser. A person in a “dating relationship” means that the abuser and the abused share an intimate association where they mutually expect affection or sexual relations independent of financial considerations.
Are there degrees of domestic abuse?
There is aggravated battery and aggravated assault. This means that the violent acts resulted in serious bodily injury. If serious bodily injury is inflicted on occasion of the battery or if serious bodily injury results from the batter, the penalty is higher.
An injury is any physical injury requiring treatment by a medical professional. A serious or grave bodily injury is any serious impairment of the physical condition including: lost consciousness, concussion, bone fracture, protracted loss or impairment of the function of a body organ, a wound requiring extensive suturing, and serious disfigurement.
There is a higher penalty depending on where the assault or battery occurred. If it occurred on school property, a public park or a hospital, there is a higher penalty.
Can domestic abuse be committed by a son or daughter against a parent?
Yes, but the abuse is usually called “elder abuse”. It is defined and penalized under Section 243.25. The abuser may be related or not to the elder. What is necessary is that the elderly person must be a dependent adult.
Can domestic violence be committed against male partners or spouses?
If the abuser is the female spouse, partner, or parent and the victim is the male spouse, partner, or parent is the male spouse, partner, or parent, can he file a complaint for domestic violence? Yes, the law on domestic violence does not distinguish between male abusers and female abusers. We hear of males being charged with domestic violence more often than we hear of females being charged with domestic violence because males rarely report instances of domestic violence.
What types of penalties may be imposed for domestic violence?
The accused, if found guilty may be penalized with imprisonment, fine or both imprisonment and fine.
Yes, child abuse may fall under domestic violence. Child abuse may be in the form of neglect or abandonment, but it may also be of the type that is placing the child under circumstances or conditions likely to produce great bodily harm or death. If any person, related to the child or not, or having care of custody of the child willfully causes or permits a child to suffer, or inflicts on the child unjustifiable physical pain or mental suffering, or causes or permits the child to be injured is guilty of child abuse under Section 273a of the California Penal Code.
Under 273ab of the California Penal Code, any person who has the care or custody over a child under the age of 8 and assaults the child using force that may likely produce great bodily injury, traumatic condition or result in the child’s death will also be penalized. A traumatic condition is when the body is wounded, when external or internal injury is sustained. It also includes strangulation or suffocation when the normal breathing or circulation of the blood is impeded by putting pressure on the throat or neck.
Under 273d of the California Penal Code, any person who willfully inflicts any cruel or inhuman corporal punishment or injury shall also be penalized.
Under 273.4, any person who willfully mutilates a female child’s genitalia will be punished. The “mutilation of the female genitalia” includes excision or infibulation of the labia majora, labia minora, clitoris or vulva. It must be done for nonmedical purposes.
When is child abuse penalized as a misdemeanor?
Child abuse may be penalized as a misdemeanor when the circumstances or conditions that the child suffers is not likely to produce great bodily harm or death.
What is sexual abuse of a child?
Sexual abuse of a child is penalized under 288 of the California Penal Code. Under this law, any person who willfully or lewdly commits any lewd or lascivious act on a child aged 14 or younger with the intent to arousing, appealing to or gratifying the lust, passions or sexual desire of the person or the child will be penalized.
When force, violence, duress, menace or fear of immediate and unlawful bodily injury accompanies the sexual abuse of the child, it shall also be penalized.
The person who sexually abuses the child may be a person who is a caretaker of the child or one who has custody of the child. A caretaker of a child includes any owner, operator, employee, contractor, agent or volunteer of public or private facilities for the care of children. Facilities for the care of children include schools, clinics, health care centers, workshops, camps, community care facilities, respite care facilities, foster homes, boarding and care facilities and schools.
What sexual acts or sexual conduct toward a child are prohibited?
Lewd acts which are punishable include:
- Exposing the genitals, pubic or rectal area
- Touching or rubbing the child’s genitals, pubic or rectal area
- Having sexual intercourse with a child
- Sodomy on a child
- Oral copulation or sexual penetration on a child
- Inserting a foreign object, substance, instrument or device in any part of the child’s body including the sexual organ.
What penalties may be imposed on a person convicted of child abuse?
A person found guilty of child abuse or assault on a child may be penalized with imprisonment or fine or both imprisonment and fine. The abuser will undergo mandatory treatment and counseling. Subsequent convictions for the same or similar offenses will be meter out graver penalties. The child may be removed from the home of the abuser and a protective order may be imposed, forbidding the accuse to see or contact the abused child.