How Do Prior Instances Of Domestic Abuse Affect An Ongoing Case?

The prosecution can introduce prior occurrences of domestic violence as evidence in certain situations. The primary reason to use those prior occurrences would be to enhance a current charge to a more severe charge. On November 1, 2016, a change to 21 O.S. § 644.1 went into effect that makes it easier to charge somebody accused of domestic violence with a felony.

Second Instance Is A Felony

Domestic Abuse Affect An Ongoing CasePreviously, it took three or more separate instances of domestic assault within one year to be charged with a felony unless the type of violence committed warranted a felony charge. Now, someone with two or more instances of domestic assault can be charged with a felony. There is no requirement that the instances 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.

What Happens If The Alleged Victim Recants Their Statement In A Domestic Violence Case?

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.


22 O.S. § 60.16
21 O.S. § 644.1
22 O.S. § 720

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