Definition of Domestic Violence in Oklahoma
a present spouse of a former spouse,
a former spouse of a present spouse,
a foster parent,
a person otherwise related by blood or marriage,
a person with whom the defendant is or was in a dating relationship,
an individual with whom the defendant has had a child,
a person who formerly lived in the same household as the defendant, or
a person living in the same household as the defendant.
Note the wide range of possibilities for an assault and battery to be considered domestic abuse. For example, domestic abuse can be committed against any child—not just someone the abuser is related to. When it comes to relatives, domestic abuse could occur when committed against any relative—no matter how remote. The possibilities are endless. Dating relationship, defined in 22 O.S. 60.1, means a courtship or engagement relationship. A casual acquaintance or ordinary fraternization between persons in a business or social context does not constitute a dating relationship.
Punishment for Domestic Abuse in Oklahoma
Domestic abuse charges can be misdemeanors or felonies. Whether it’s a misdemeanor or a felony depends on how many times someone has violated the statute and the presence of any aggravating factors. Aggravating circumstances can make a first-time offense a felony, and they can increase the severity of the punishment for a second or subsequent offense.
A first-time domestic abuse case that does not have any aggravating factors will generally be charged as a misdemeanor. Punishment can be up to one year in county jail. The maximum fine is $5,000.
A second or subsequent instance of domestic abuse is a felony. Punishment can be up to four years in the Department of Corrections. The maximum fine is $5,000.
Prior Pattern of Domestic Abuse
There is no requirement that the instances of domestic violence happen within any time period. This is considered a “prior pattern of physical abuse.” 21 O.S. § 644.1 defines prior pattern of physical abuse as two or more separate incidences, including the current incident, occurring on different days and each incident relating to an act constituting assault and battery or domestic abuse committed by the defendant against a current or former spouse, a present spouse of a former spouse, parents, a foster parent, a child, a person otherwise related by blood or marriage, a person with whom the defendant is in a dating relationship, an individual with whom the defendant has had a child, a person who formerly lived in the same household as the defendant, a person living in the same household as the defendant, a current intimate partner or former intimate partner, or any combination of such persons.
Proof of each incident prior to the present incident is established merely by the sworn testimony of a third party who was a witness to the alleged physical abuse or by other admissible direct evidence that is independent of the testimony of the victim. It’s important to note that the requirement to charge a second “incident” as a felony does not require a previous conviction of domestic abuse or even a prior guilty plea to that crime. However, a guilty plea under any circumstances would certainly also constitute proof of a prior incident. During trial, a prosecutor cannot introduce previous instances of domestic violence to prove that the defendant committed an act of domestic violence this time. If that evidence is introduced, then it must be for a different reason.
Domestic Abuse Committed In The Presence Of A Child
Domestic abuse committed in the presence of a child is a misdemeanor for the first offense. It carries a punishment range of six months to one year in the county jail. The maximum fine is $5,000.
A second or a subsequent offense of domestic abuse in the presence of a child is a felony. The punishment range is one to five years in the Department of Corrections. The maximum fine is $7,000.
Domestic Abuse Committed Against A Pregnant Woman
Domestic abuse committed against a pregnant woman with knowledge of the pregnancy is a misdemeanor for the first offense. The second or subsequent offense of domestic abuse against a pregnant woman with knowledge of the pregnancy is a felony and carries up to ten years in the Department of Corrections. Domestic abuse committed against a pregnant woman with knowledge of the pregnancy where a miscarriage or injury occurs to the unborn child carries a minimum of 20 years in the Department of Corrections.
Domestic Abuse Resulting In Great Bodily Injury
Domestic abuse resulting in great bodily injury is a felony that carries a punishment of up to ten years in the Department of Corrections. Great bodily injury means bone fracture, protracted and obvious disfigurement, protracted loss or impairment of the function of a body part, organ or mental faculty, or substantial risk of death.
Domestic Abuse By Strangulation
Domestic abuse committed with the intent to cause great bodily harm by strangulation or attempted strangulation is a felony. The punishment range is one to three years in the Department of Corrections. The maximum fine is $3,000. For a second or subsequent conviction of domestic abuse by strangulation or attempted strangulation, the punishment range is three to ten years in the Department of Corrections with a maximum fine of $20,000. Strangulation means any form of asphyxia; including, but not limited to, asphyxia characterized by closure of the blood vessels or air passages of the neck as a result of external pressure on the neck or the closure of the nostrils or mouth as a result of external pressure on the head.
What if the Alleged Victim Changes Their Mind?
Victims sometimes change their mind after some time and do not want charges to be pressed on the alleged abuser. Prosecutors generally have a “no dismiss” policy for domestic abuse cases. That means they will not dismiss a case of domestic violence even if the victim tells them that they do not want the defendant to be prosecuted. However, the prosecutor will sometimes dismiss a domestic violence case despite a “no dismiss” policy. There are situations that would make it more or less likely that a prosecutor would dismiss a case. For instance, the least likely situation in which a prosecutor would dismiss a case based only upon the victim’s request is where a male defendant and a female victim are in a relationship. This is the typical domestic violence scenario. The thought is that the male abuser is threatening the female victim with more abuse if she doesn’t ask for the charges to be dropped. However, Oklahoma law considers many types of relationships to be sufficient for domestic violence charges when there was a violent act committed between those individuals. For instance, the victim could be a former roommate, an uncle, a cousin, or a brother. Although the prosecutor will still be reluctant to dismiss a case in these instances, the case is more likely to get dismissed than if it were a male/female in a relationship scenario. A way that charges can get dismissed is when the victim does not show up to testify in court. This happens because the victim is typically the primary witness, and the state needs evidence to be able to convict somebody. If there is no evidence, then the trial or hearing typically cannot be conducted. If the prosecutor continues with the hearing or trial without the victim, then the chances of a conviction typically decrease. However, expecting a dismissal because you think the victim won’t show is a risky strategy. First, the witness could show. Second, the trial or hearing could still continue because there is other evidence proving domestic abuse that can be brought in. Prosecutors frequently continue with the trial or hearing despite the victim not showing up. They do this by getting around hearsay and the confrontation clause. For instance, if a victim talks to a doctor for the purpose of seeking medical care for the injuries they sustain from the domestic violence situation, then what they told the doctor can be admissible even though the victim does not show up. Another way a victim’s statement can be entered into evidence without the victim having to appear in court is through a 911 call. That can be considered an excited utterance, which is an exception to hearsay. For instance, if the victim yells on the phone as soon as the 911 operator picks up, “Help, my boyfriend just hit me in the face!”, that could be considered an excited utterance, and it would likely be entered into evidence without the presence of a victim. Prosecutors will try to get around the Confrontation Clause by arguing that a statement is non-testimonial. Finally, there could be witnesses to the abuse besides the victim who could testify. It is important that you don’t prevent the victim from showing up at court or encourage them to not testify. That could be considered witness tampering or obstruction of justice, which are crimes. If a witness receives a subpoena to testify in court, they are required to obey the subpoena. Failure to comply with a subpoena could result in being held in contempt of court. Per 22 O.S. § 720, law enforcement may detain someone whom they have probable cause to believe is a necessary and material witness to a felony if the officer has probable cause to believe that person will refuse to appear in court. However, no person may be detained as a material witness to a crime who is a victim of such crime.
Will Someone Get Arrested If The Police Are Called To A Domestic Violence Scene?
Someone will typically get arrested if the police are called to a domestic violence scene. It’s even possible for the person calling the police to get arrested. People think that calling the police will help defuse the situation. It’s logical that many people are not familiar with the responsibility of law enforcement and the prosecutor in domestic violence situation. While it’s possible that the police can just defuse the situation and nobody will get arrested, that is highly unlikely. Officers are encouraged to arrest someone when a domestic abuse situation is reported. According to 22 O.S. § 60.16, a law enforcement officer may make a warrantless arrest if the officer has probable cause to believe the person has committed an act of domestic abuse within the preceding 72 hours—even if the assault did not take place in the presence of the officer. An officer may not arrest someone without first observing a recent physical injury to, or an impairment of the physical condition of, the alleged victim. The first event after a domestic abuse arrest is a trip to jail. The arrestee will be booked, processed, fingerprinted, and photographed. Their bail will initially be set, and they will be afforded the opportunity to call someone for help.
Making Bail After a Domestic Violence Arrest
If you’re arrested for domestic abuse, a bail amount will eventually be set. Whether you are arrested or not, your bond will typically be initially set at “no bond.” You will find out the exact bond amount when you go in front of the judge for arraignment. There is a 72-hour “cool down” period after someone is arrested for a domestic abuse charges. That means that the arrestee will not be released from jail until 72 hours has passed from the time of arrest.
Contact With the Victim After a Domestic Violence Arrest
You will not necessarily be prevented from having contact with your spouse or children after a domestic abuse case. A domestic abuse charge, by itself, does not carry any requirement that the accused not contact the complaining witness (aka the “victim”). However, what happens many times in a domestic abuse situation is that the victim will file a Victim Protective Order (VPO). A VPO is what’s used to prevent someone from contacting the victim. If you have a VPO on you, then you need to read the order thoroughly and obey every word of it. Violation of the VPO is a crime.
Something else that can happen is that the Department of Human Services (DHS) can get involved if there was an injury to a child. Domestic abuse can also occur when the victim is a child. If DHS finds out about the abuse, then they may initiate deprived child proceedings. The child could be removed from home due to the violence committed by an individual living in the home and/or a failure to protect by the other parent/relative/other individual living in the household.
Sources: 22 O.S. § 60.1, 21 O.S. § 641, 21 O.S. § 642, 21 O.S. § 644, 21 O.S. § 646, 22 O.S. § 60.16, 21 O.S. § 644.1, 22 O.S. § 720, 22 O.S. § 60.16
Current as of 6/16/2019.
Charged with domestic abuse in Oklahoma? Call Oklahoma domestic abuse attorney Frank Urbanic in OKC for a free consultation.
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