West Virginia maintains two types of laws against domestic violence, and violations have criminal penalties. Domestic violence protective orders move quickly to separate a victim of domestic violence from an alleged abuser. While protective orders are considered civil orders, violating a protective order carries criminal penalties. Criminal laws also cover domestic assault and battery in West Virginia. These crimes fall under a special statute different from the general assault and battery laws. The links in the References and Resources section provide more detailed information on the matters discussed in this article. While magistrates and their assistants and family law judges and their staff may not offer legal advice, they can also offer information on the process of applying for protective orders. If you are a current victim of domestic violence, you should call 911.
Initial emergency protective orders are issued by county magistrates. The final orders are issued by family law judges.
A victim or witness can petition a magistrate to issue an emergency temporary order. The magistrate will review the petition. If the magistrate finds that domestic violence or an imminent threat of domestic violence exists, a temporary domestic violence protective order may be issued. The alleged assailant need not be present for a temporary order to be issued. The order may order the alleged assailant out of the house and establish support for the victim and any children of a marriage or relationship. The emergency order is good until the family court issues an order in the case.
A final hearing occurs in family court, usually within 30 days of the emergency order.
The defendant will be notified and may be present. The family court judge will decide if a final permanent domestic violence protection order will be issued. The order may include provisions for support, payment of rent and resolve other financial matters. The assailant will be ordered not to contact, threaten or harm the victim. If contact is necessary for any reason, the judge will outline how and where contact is permitted.
Violations of Protective Orders
Violations of protective orders may result in a contempt of court of court charge or a criminal charge. Contempt of court may result in a fine or cash bond to ensure no further violations.
Violation of a temporary or final protective order is also a crime. A conviction carries a penalty of up to one year in jail and/or a $2,000 fine. The defendant is entitled to a jury trial on the criminal charge.
Domestic Assault and Battery
Domestic assault and battery laws protect victims who have a variety of domestic relationships with their assailant. The victim may be a husband or wife, parent, guardian or domestic partner.
Domestic assault occurs when someone tries to attack or commit and act of violence and by doing so puts a person in fear of immediate harm. Throwing a knife at someone, but missing, would be an assault. Holding a knife and threatening to harm the victim may also be an assault.
Domestic battery means there has been actual physical contact between the victim and the attacker. A punch that hits the victim would be battery.
Penalties for Domestic Assault and Battery
In all cases below, a judge or magistrate may impose a fine or jail sentence or both.
A first conviction on domestic assault carries a sentence of up to six months in jail and a fine of up to $100.
For the first conviction of domestic battery, a person could face either up to a year in jail or a fine of up to $500.
People convicted of a second offense of domestic battery face a possible penalty of 60 days to one year in jail or a fine of not more than $1,000.
A second conviction on domestic assault carries a possible penalty of 30 days to six months in jail or a fine of up to $500.
A third offense of either domestic assault or domestic battery within 10 years of any of the previous convictions is a felony punishable by one to five years in prison or a fine of up to $2,500.