Most people think of domestic violence as a situation where one person physically abuses another. While that's the classic description of domestic violence, under California law, no actual physical assault must occur in order to file domestic violence charges.
Destruction of personal property or disturbing someone's peace also falls under the domestic violence label. A person can file domestic violence charges if someone threatens to hurt them, harasses or stalks them.
If you've been arrested on charges of domestic violence but your accuser is claiming threats or harassment rather than physical abuse, it's quite possible your right to free speech is actually being violated. We see this kind of accusation all the time in courts in Northern California, from Alameda County to San Francisco County.
That's why it is essential to contact a lawyer focused on defending domestic violencecharges immediately if you are arrested. It's quite possible that what you are alleged to have said is not a crime at all.
The Law and Verbal Abuse
Under California law, verbal abuse includes “making someone reasonably afraid that he or she or someone else is about to be seriously hurt (like threats or promises to harm someone).” Simply getting mad at a partner or ex and saying nasty things does not constitute verbal abuse as it pertains to a domestic violence charge. “I am going to kill you if you don't get off the phone right now,” is rightly perceived as a threat. “I hate you and wish you would drop dead,” is a hurtful thing to hear, but it contains no threatening language, even if yelled at top volume.
When two people are in an emotional, angry situation, what one person says and what the other one hears isn't necessarily accurate.
Such accusations may also lead to a factual contradiction defense. If there is any evidence that you did not use the threatening language you are accused of – such as video and/or audio recordings – the words you did actually use that do not constitute verbal abuse can help your case. So can the testimony of any witnesses to the incident, who may contradict your accuser's version.
Your attorney will investigate all police and other pertinent reports regarding the domestic violence charge, and see if there is any inconsistency in the accuser's statements. A cross-examination of the accuser will highlight such inconsistencies and contradictions.
Divorce Proceedings and Verbal Abuse Accusations
Couples going through divorce aren't known for saying nice things to each other. However, an accusation of verbal abuse can accomplish something standard divorce proceedings can't do – get the other spouse out of the house.
If neither party wants to leave the family home and there are arguments about it, a spouse filing a domestic violence verbal abuse claim can get a protective order. If you're in a situation where you are still sharing a house with a soon-to-be ex, avoid arguments but record any fights if they do start. If your ex pulls the verbal abuse ploy to try to get you off the premises, you have evidence that you did not make the alleged threats on a specified day and time.
Make sure you clearly tell them on the recording that you are recording anything they say to you will be recorded.
Elonis vs. the United States
In 2015, the Supreme Court overturned the conviction of Pennsylvania resident Anthony Elonis, who had posted threatening lyrics in the forms of rap songs on his Facebook page, aimed at his estranged wife.
Even though Elonis had written that his posts were “therapy” or “for entertainment purposes,” his former wife felt that many of his lyrics were threats were directed at her, and that Elonis also fantasized about shooting up an elementary school and killing an FBI agent. Arrested in 2010, Elonis argued at his trial that he was an “aspiring rap artist” whose posts were “therapeutic” and protected by the First Amendment.
Some of his posts included the language, “This is not a threat.” Elonis was convicted and sentenced to 44 months imprisonment, but his case made its way through the appellate court system and eventually to the Supreme Court.
The moral of the story? Sometimes a “threat” is just venting or artistic license.
You Need a Skilled Attorney Specializing in Domestic Violence
Threats you are alleged to have made can ruin your life.
A domestic violence conviction affects your career, home and possible custody and visitation of your children. It will keep you from ever owning firearms.
An attorney skilled in defending those accused of domestic violence is an absolute necessity. We can conduct a thorough investigation and offer the best defense possible for each client. If charges were filed in Alameda County, Contra Costa County or San Francisco County, the experienced domestic violence attorneys at Tully & Weiss can help.