Domestic violence cases are highly emotional and sensitive cases.
Because domestic violence cases involving children have both criminal and CPS implications, they require the most intelligent, experienced, and discerning defense attorneys to handle them successfully.
How does the law define Domestic Violence?
Domestic violence occurs when someone assaults another person he or she has been in a relationship or a resident or former resident of his or her household. Children fall under the domestic violence law as members or former members of the defendant’s household.
Can a child testify in court?
Some believe it is unwise to rely on the testimony or statements from children because children are mentally impressionable and vulnerable to adults who may have a motive to influence their testimony. While this is undoubtedly true on occasion, the 6th Amendment of the Constitution requires that defendants be allowed to confront their accusers, child or not. If a judge determines that certain reliability requirements are present, the child can be compelled to testify. Children as young as 3-years old have been found competent to testify in court.
Defending domestic violence charges with a child victim is complex because the defense attorney will not want to be perceived as “beating up” a child on the witness stand. Attacking a child can be fatal to a defense, as the jury will want to punish the attorney, and the client gets caught in the crossfire. It takes an extremely astute, experienced, and talented trial attorney to avoid this pitfall. The law does not make the penalty different if the alleged victim is a child; the difference in these cases is how the complainant is dealt with in court by the defense attorney.
Penalties for Domestic Violence
There are several levels of domestic violence, with ramped-up penalties depending on the particular circumstances. The penalties do not depend on whether the alleged victim is a child or an adult. The potential penalties are as follows:
- 1st Offense Domestic Violence – 93 days in jail, 2 years supervised probation, $500.00 fine.
- 2nd Offense Domestic Violence – 1 year in jail, 2 years supervised probation, $1,000.00 fine.
- 3rd (or more) Offense Domestic Violence – 5 years in prison, 5 years court-supervised probation, $5,000.00 fine.
- Aggravated Domestic Violence – 1 year in jail, 2 years of court-supervised probation, $1,000.00 fine.
- Aggravated Domestic Violence, with a Prior Domestic Violence Conviction – 5 years in prison, 5 years of court-supervised probation, $5,000.00 fine.
Rest assured, the terms of probation are severe in any domestic violence case, but they are especially so where a child is allegedly the victim. Typical probationary terms include extensive counseling, high fines and costs, extensive community service, abstinence from alcohol, reporting probation, drug, and alcohol testing, and of course, potential jail. Judges want to send a tough anti-domestic violence message to the community in all domestic violence cases, and much more so where a child is the complainant.
Approaching and Crafting a Defense to Domestic Violence Allegations by a Child
In many cases where a parent is accused of domestic violence on a child, the incident involved some type of physical discipline, like spanking or grabbing. Not all physical discipline qualifies as domestic violence. In Michigan, corporal punishment is legal and can be used as a defense to domestic violence charges. Corporal punishment means the deliberate infliction of physical pain by hitting, paddling, spanking, slapping, or any other physical force used as a means of discipline. It is not a crime to discipline a child using corporal punishment; however, the force used on the child must be reasonable.
If a child assaults a parent or another member of the household, the person being assaulted may defend themselves. A parent or another member of the household may also physically defend someone else from a child’s assault. Self-Defense and Defense of Others are valid defenses to domestic violence charges. The force used in self-defense or in defense of others must be reasonable.
Defending domestic violence charges based on an alleged assault on a child depends on the circumstances. The unique circumstances in each case will dictate how the domestic violence charges are defended. Some of the important considerations are:
- How old is the child?
- Is there a documented or legitimate logical reason to believe the child does not like the defendant and would want to harm him or her by making false allegations?
- What were the injuries if any?
- How does the child present himself or herself (strong, confident, shy, frail, weepy, traumatized)?
- Does anyone have the motive and/or opportunity to attempt to manipulate the child’s statements?
- Does the child have any obvious or documented mental impairments?
- Has the child made any inconsistent statements during the case’s development?
- Has the child made similar accusations before which were either proven or disproven?
- Does the child have a motive to lie or manipulate? Like to get out of trouble or to facilitate moving in with a different parent or family member.
Based upon the answers to these questions, an astute and highly experienced defense attorney will know how to frame and pose questions in the most legitimately artful and compassionate manner. Any misstep will draw the wrath of judge and jury. Being respectful and aggressive at the sme time is a fine line to walk, and frankly, most attorneys are not up to the task.
Domestic Violence and Child Abuse
In Michigan, Child Abuse can be charged as a felony or misdemeanor depending on a variety of circumstances, including the parent’s intent and what, if any, injury was caused. Domestic Violence and Child Abuse can be charged in the same case.
Defense Attorneys Handling Domestic Violence Allegations by a Child
The highly reputable, compassionate, and astute attorneys at LEWIS & DICKSTEIN, P.L.L.C. have decades of experience defending domestic violence cases, including where allegations were made by children and minors. We are aware of the high sensitivity these cases demand so that our clients will benefit from a vigorous defense and, at the same time, not suffer being punished by judge and jury for mishandling these sensitive issues. These charges can be dismissed and thrown out of court, but only if defended intelligently, aggressively, and appropriately.
We have a well-earned reputation for providing the highest quality defense and aggressive representation while showing empathy and individualized care for each client.
Call us today at (248) 263-6800 for a free consultation, or complete a Request for Assistance Form and we will contact you promptly.