Threats, violence and bullying are always awful to endure, but when they occur in an intimate relationship, they are even more traumatic. Spousal abuse laws in California are termed domestic abuse laws because you don't have to be married to the abuser to fall within these laws' protection. Nor are domestic abuse offenses limited to actual physical violence. Many types of threatening and harassing behavior is also covered. If you live in California, it is important to understand the state's domestic abuse laws to help yourself if you are a victim of abuse or to assist others who are being subjected to abuse.
California Domestic Abuse Laws – Who Qualifies?
Everyone knows that it is against the law to assault and/or batter another person, including a spouse. But many do not realize that, in some states, domestic abuse extends to people you aren't married to. California is one of those states.
Domestic abuse laws in California protect you against anyone with whom you have or have had an intimate relationship. This doesn't necessarily turn on whether you have had sexual contact with them. In California, domestic violence includes abusive behavior from a person you are married to or in a domestic partnership with, a person who you are dating or used to date, a person you live with, even in a roommate situation, or have lived with, and a person you have a child with. Abuse by a person closely related by blood or by marriage also qualifies as domestic abuse under California law.
California Domestic Abuse Laws – What Constitutes Abuse?
California domestic abuse laws extend far broader protection than you might think. The laws make physical abuse a crime, but domestic abuse protection isn't limited to black eyes and broken bones in this state. Under the language of the California laws, domestic abuse includes any type of intentional or reckless physical violence or any attempt to inflict physical violence.
What else is included in the term "domestic abuse" under California domestic abuse laws? Obviously, hitting and assaulting or attacking with a weapon are crimes. But "lesser" physical attacks can also constitute abuse. If someone close to you kicks you, pulls your hair, throws things at you or shoves and pushes you, it can be domestic abuse. If he restrains you somewhere, preventing you from leaving or keeping you from entering somewhere you want to go, it can be domestic abuse. If he harms or threatens a family member or a family pet, it can also be domestic abuse. Domestic abuse includes sexual assault, threats to harm you, your family or someone you love, and all attempts to make you afraid of harm. It also includes conduct like stalking or harassing you or destroying your property. Abuse can be emotional or psychological. Any tactic an abuser uses to control and have power over you may be abuse, and abusers often use a range of different tactics.
Domestic Abuse Arrests
In California, police officers must arrest the accused abuser when they believe that domestic violence has occurred. Arrest is not optional in this situation; it is mandatory. The officers are required to make an arrest when there is probable cause to think the accused abuser hurt, threatened or harassed someone who qualifies as a domestic abuse victim under the laws, whether a spouse, domestic partner, someone the possible victim is dating or living with or a family member. If you call the cops because of domestic abuse, it doesn't matter whether you want to press charges or not – they have no choice but to make the arrest if they believe violence occurred.
Behind the Domestic Abuse Law
Violating the domestic abuse laws often carries greater penalties than the same actions would carry if done to strangers. Most people understand why hitting,threatening or harassing someone you live with or are in a relationship with should carry criminal penalties, but why greater penalties? Why is California domestic abuse different from other crimes in the California Penal Code?
California's domestic violence laws are intended to prevent violence in familial or intimate relationships. In enacting domestic abuse laws, the California legislature recognized that abusers who frighten or injure someone close to them usually take advantage of their victims' trust and confidence. Punching a spouse might cause the same physical injuries as punching a stranger, but the stranger is more likely to be outraged, call the police and even fight back. A family member, spouse or child is less likely to escape and seek help, and, if the abuser lives with the victims, they may have nowhere else to go. In addition, stranger assault usually happens only one time, while domestic abuse usually occurs over and over. It tends to fall into a pattern of behavior that repeats itself and becomes increasingly more violent.
That's the reason prosecutors seek harsher sentences in domestic violence cases. And under California domestic abuse laws, the potential jail time is longer than for similar crimes done to victims outside the family circle. Another difference is that domestic abuse sentencing typically includes restraining orders to offer protection to victims. The courts can also order that domestic abusers engage in therapeutic counseling.
Battery as Domestic Abuse
Look at battery, for example. Under section 242 of the California Penal Code, battery is the crime of intentionally using force in an unlawful way against another person. When the batterer attacks someone in a domestic abuse relationship, the punishment is more severe.
If a person batters a stranger in California, the maximum punishment if convicted is six months in jail and a fine of $2,000. On the other hand, when someone is charged with a crime based on domestic violence, the prosecutor can choose between several sections of the Penal Code depending on the type of conduct and the level of harm to the victim.
If the battery occurs in one of the domestic relationships mentioned in the California statutes, Section 243(e)(1) of the Penal Code applies. Under the statute, the batterer could go to jail for a year in addition to the imposition of a $2,000 fine. The abuser might also be ordered to complete a treatment program for batterers. The court can also order the batterer to pay up to $5,000 to a battered women's shelter and also pay for counseling for the victim.
If the force used in a battery leaves a domestic abuse victim with physical wounds or injury, it may constitute a felony, which is a more serious crime in California. Under Section 273.5 of the Penal Code, willful infliction of bodily injury. In this case, a first offender may be sentenced to prison for four years and be ordered to pay a $6,000 fine. He may also be required to make a donation to a battered women's shelter as well as to pay for counseling for the victim. Repeat offenders can get five years in prison and a fine of up to $10,000.
Domestic Protective Orders
California domestic abuse laws give domestic violence victims the right to seek emergency protective orders and restraining orders. These can be in criminal court or in civil court. Several different types of orders are possible. The first type can be requested only by a law enforcement officer, usually after answering a domestic abuse call. The officer can call a judge 24 hours a day and seek an emergency protective order keeping the abusive person away from the house, the victim and any kids for up to seven days. This period is not long, but it is enough to give the victim the chance to apply for a temporary restraining order.
To get a longer protective order, you can seek a temporary protective order yourself. California courts enter temporary protective orders when a person has reasonable grounds to think she is in immediate danger of domestic violence. This can be based on a history of domestic violence or else recent threats of domestic violence. This type of order, also called a TRO, is ordered ex parte, which means without a hearing and without prior notice to the other person. A TRO can order the alleged abuser to stay away from the victim, to stop hurting or harassing her and to vacate the house where she lives. The court's TRO is served on (personally handed to) the alleged abuser, together with notice of a hearing involving the alleged abuse. The life of a TRO is usually 25 days or less, running from the time it is issued to the time of the permanent restraining order hearing.
When you show up at court for the permanent restraining order hearing, it is possible that the alleged abuser will also show up since he receives notice of it. At that hearing, both people get a chance to tell their side of the story, and the court can issue an order called a "permanent restraining order." These last for up to five years and can be renewed for another five years.
Finally, a court can issue a protective order when someone is charged with a domestic abuse crime. The intention, again, is to protect the victim from additional violence or harassment. The order can prevent the alleged abuser from making any type of contact with the victim. In extreme cases, the court can order the police to protect the victim and her immediate family. This is appropriate when a court believes that the victim or a witness may be harmed or intimidated. Finally, when someone is sentenced for a domestic abuse crime, the court can issue a protective order lasting up to a decade ordering the criminal not to contact the victim in any way.
Read More: California Protective Orders Laws: Orders of Protection and Restraining Orders
Violating Domestic Protective Orders
What happens if the person violates a domestic abuse protective order? Normally the best thing to do, if you see that someone restrained by a protective order is violating it, is to call the police. In California, the police are trained to take domestic violence very seriously. If it is clear to the police that the order was violated, or even if it appears to the police more likely than not that someone violated a protective order taken against them, the officers must make an arrest.
Violating a protective order is not a small deal in California, especially a domestic abuse protective order. It can carry serious consequences. Since 2017, someone convicted of violating a restraining order issued after the person was convicted of domestic violence can be sentenced to a year in jail and/or a $1,000 fine. Even for a first offense, a person will get at least 48 hours in jail if the domestic abuse protective order violation caused physical injury. If the violation is not the first offense, the punishment can be even greater if violence or a threat of violence is involved. If a person is charged with a second or third violation within seven years of the first one, the punishment can be up to a year in the county jail or up to three years in state prison.
- Findlaw: California Domestic Abuse Law
- California Courts: Domestic Violence Self-Help
- Gorelick Law: Domestic Violence
- Milligan Beswick Levine & Knox, LLP: What Constitutes Domestic Abuse
- Law Offices of Randy Collins: Jail Time for California Domestic Violence Offenses
- Criminal Defense Lawyer: California Domestic Violence Laws
- Find Law: California Penal Code Section 243
- FindLaw: Penal Code 273.5
Teo Spengler earned a J.D. from U.C. Berkeley's Boalt Hall. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an M.A. and an M.F.A in creative writing and enjoys writing legal blogs and articles. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Go Banking Rates, Arizona Central, Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites. Spengler splits her time between the French Basque Country and Northern California.