FREQUENTLY ASKED QUESTIONS REGARDING ASSAULTS/DOMESTIC ASSAULTS
1. What is Assault in the First Degree?
A person commits the crime of assault in the first degree if he attempts to kill or knowingly causes or attempts to cause serious physical injury to another person. Assault in the first degree is a class B felony unless in the course thereof the actor inflicts serious physical injury on the victim in which case it is a class A felony.
2. What is Assault in the Second Degree?
A person commits the crime of assault in the second degree if he: (1) Attempts to kill or knowingly causes or attempts to cause serious physical injury to another person under the influence of sudden passion arising out of adequate cause; or (2) Attempts to cause or knowingly causes physical injury to another person by means of a deadly weapon or dangerous instrument; or (3) Recklessly causes serious physical injury to another person; or (4) While in an intoxicated condition or under the influence of controlled substances or drugs, operates a motor vehicle in this state and, when so operating, acts with criminal negligence to cause physical injury to any other person than himself; or (5) Recklessly causes physical injury to another person by means of discharge of a firearm; or (6) Operates a motor vehicle in violation of subsection 2 of section 304.022, RSMo, and when so operating, acts with criminal negligence to cause physical injury to any person authorized to operate an emergency vehicle, as defined in section 304.022, RSMo, while such person is in the performance of official duties. The defendant shall have the burden of injecting the issue of influence of sudden passion arising from adequate cause under subdivision (1) of subsection 1 of this section. Assault in the second degree is a class C felony.
3. What is Assault in the Third Degree?
A person commits the crime of assault in the third degree if: (1) The person attempts to cause or recklessly causes physical injury to another person; or (2) With criminal negligence the person causes physical injury to another person by means of a deadly weapon; or (3) The person purposely places another person in apprehension of immediate physical injury; or (4) The person recklessly engages in conduct which creates a grave risk of death or serious physical injury to another person; or (5) The person knowingly causes physical contact with another person knowing the other person will regard the contact as offensive or provocative; or (6) The person knowingly causes physical contact with an incapacitated person, as defined in section 475.010, RSMo, which a reasonable person, who is not incapacitated, would consider offensive or provocative. 2. Except as provided in subsections 3 and 4 of this section, assault in the third degree is a class A misdemeanor. 3. A person who violates the provisions of subdivision (3) or (5) of subsection 1 of this section is guilty of a class C misdemeanor. A person who has pled guilty to or been found guilty of the crime of assault in the third degree more than two times against any family or household member as defined in section 455.010, RSMo, is guilty of a class D felony for the third or any subsequent commission of the crime of assault in the third degree when a class A misdemeanor. The offenses described in this subsection may be against the same family or household member or against different family or household members.
4. What is Domestic Assault in the First Degree?
A person commits the crime of domestic assault in the first degree if he or she attempts to kill or knowingly causes or attempts to cause serious physical injury to a family or household member or an adult who is or has been in a continuing social relationship of a romantic or intimate nature with the actor, as defined in section 455.010, RSMo. Domestic assault in the first degree is a class B felony unless in the course thereof the actor inflicts serious physical injury on the victim or has previously pleaded guilty to or been found guilty of committing this crime, in which case it is a class A felony.
5. What is Domestic Assault in the Second Degree?
A person commits the crime of domestic assault in the second degree if the act involves a family or household member or an adult who is or has been in a continuing social relationship of a romantic or intimate nature with the actor, as defined in section 455.010, RSMo, and he or she: (1) Attempts to cause or knowingly causes physical injury to such family or household member by any means, including but not limited to, by use of a deadly weapon or dangerous instrument, or by choking or strangulation; or (2) Recklessly causes serious physical injury to such family or household member; or (3) Recklessly causes physical injury to such family or household member by means of any deadly weapon. Domestic assault in the second degree is a class C felony.
6. What is Domestic Assault in the Third Degree?
A person commits the crime of domestic assault in the third degree if the act involves a family or household member or an adult who is or has been in a continuing social relationship of a romantic or intimate nature with the actor, as defined in section 455.010, RSMo, and: (1) The person attempts to cause or recklessly causes physical injury to such family or household member; or (2) With criminal negligence the person causes physical injury to such family or household member by means of a deadly weapon or dangerous instrument; or (3) The person purposely places such family or household member in apprehension of immediate physical injury by any means; or (4) The person recklessly engages in conduct which creates a grave risk of death or serious physical injury to such family or household member; or (5) The person knowingly causes physical contact with such family or household member knowing the other person will regard the contact as offensive; or (6) The person knowingly attempts to cause or causes the isolation of such family or household member by unreasonably and substantially restricting or limiting such family or household member's access to other persons, telecommunication devices or transportation for the purpose of isolation. Except as provided in subsection 3 of this section, domestic assault in the third degree is a class A misdemeanor. A person who has pleaded guilty to or been found guilty of the crime of domestic assault in the third degree more than two times against any family or household member as defined in section 455.010, RSMo, is guilty of a class D felony for the third or any subsequent commission of the crime of domestic assault. The offenses described in this subsection may be against the same family or household member or against different family or household members.
7. Is an arrest mandatory when police are called?
Many states have mandatory arrest laws requiring police officers to arrest the alleged primary aggressor in each domestic violence case. Supporters of mandatory arrest laws believe that a mandatory arrest will tend to impress upon the alleged abuser, by either punishment or alternative services, the seriousness and wrongfulness of his or her conduct. Missouri has had an "Almost Mandatory" arrest law since 1989. This means that a Missouri police officer is allowed to use discretion when responding to a domestic violence call. The officer is not automatically required to arrest the alleged primary aggressor. However, if no arrest is made the officer must file a written report explaining the choice not to arrest. If an officer has to respond to the same address within 12 hours for a similar circumstance, an arrest then becomes mandatory.
8. Will the Prosecutor drop the charge at the victim's request?
Prosecutors in the past would routinely dismiss domestic assault cases upon the alleged victim's request. However, more recently, many prosecutor offices nationwide have implemented "no-drop" policies in domestic violence cases. Under a no-drop policy, the prosecutor will not dismiss a domestic violence case against the alleged abuser even though the alleged victim requests it to be dismissed. These no-drop policies are based upon the prosecutor's belief that alleged victims continue to be intimidated by alleged abusers even during the criminal process, and that taking the decision out of the hands of the alleged victim thereby affords him or her additional protection from further abuse and intimidation.
9. Why was my bond so high?
Since the addition of the Crime Victim's Rights Amendment to the Missouri Constitution in 1992, a judge also has the express power, both in felonies and misdemeanors, to deny bond entirely or to set it extremely high in any case where the alleged suspect poses a danger to a crime victim or the community. The courts now have tremendous power to protect alleged victims when they choose to use it. The alleged victim also has the right to be notified when the abuser is being released from jail.
10. Why was my charge a felony?
The Missouri legislature has taken steps in the last decade to strengthen domestic abuse laws. In 2000, lawmakers enacted new domestic assault crimes, ranging from misdemeanors to felonies in an effort to reduce domestic violence. The biggest change has been the creation of the crime of domestic assault in the second degree, a class C felony offense, for incidents involving allegations of physical injury, deadly weapons, dangerous instruments or choking (which if committed by a stranger upon a stranger would often be classified as a misdemeanor). In some cases, a prosecutor may choose to stick with traditional assault charges, since the new crimes all require proof that a social relationship of a romantic or intimate nature existed between the alleged victim and the alleged abuser as an additional element of the crime.
11. What happens if the victim does not want to cooperate?
Domestic violence victims frequently become reluctant or even hostile witnesses for the prosecution. Although there are often legitimate reasons for an alleged victim to refuse to cooperate or to refuse to testify, the prosecutor will often assume the main reason is fear of retaliation by the suspected abuser. As such, additional efforts may be made by the prosecutor to force the witness to appear and testify, or to obtain additional evidence for admission at trial in place of the alleged victim's testimony.
12. Can my spouse be forced to testify against me?
Missouri is one of a few states that have not amended its spousal privilege statute to provide an exception for domestic violence victims. In Missouri, a battered wife may choose whether or not she will testify about her alleged husband's abuse. The prosecutor cannot require her to testify. However, in these circumstances, a prosecutor can often bring in the alleged victim's "hearsay" statements, such as 911 voice recordings, as a method of presenting the alleged victim's original complaint to a jury.
13. Can a victim refuse to testify by "Taking The Fifth"?
Some victims will refuse to testify by invoking their Fifth Amendment right against self incrimination. The misconception by most witnesses is that one can "Take the Fifth" when one simply does not want to testify for any reason. However, the alleged victim can only plead the Fifth when their testimony will tend to incriminate them, for example, for their own criminal involvement in the incident, or for filing a false complaint. Even in these circumstances, the prosecutor may attempt to compel the victim's testimony by granting prosecutorial immunity.
14. Can a victim be held in contempt of court if they refuse to testify?
If a witness cannot successfully invoke the spousal or Fifth Amendment privilege, they may be ordered by the trial court to answer the prosecutor's questions. If the witness refuses to answer the questions provided by the prosecutor, the witness may then be found in contempt of court. This could possibly include jail time and fines. Contempt of court charges may also be filed against an alleged victim who deliberately dishonors a subpoena. Therefore, an alleged victim who chooses not to cooperate in the prosecution of an alleged abuser may become the target of punishment by the legal system. Such witnesses may want to retain their own attorney to assist them in such matters.
15. What can happen if a witness doesn't show up for court?
When a witness fails to show up for court when subpoenaed, the witness may not only face contempt of court charges, but may also be the subject of body attachment to assure his or her presence in court. This usually only happens in rare circumstances. It is generally the over-all goal of the prosecutor to protect alleged victims, not jail them. However, when a witness decides not to cooperate with the prosecutor by not appearing in court, a prosecutor may decide the case warrants more drastic actions.
16. Can my defense attorney advise victims and witnesses?
Defense lawyers face many ethical issues in domestic violence cases. The attorney has a duty to represent the client zealously within the bounds of the law and to fight for a dismissal or acquittal. Ethical issues can arise when the alleged victim asks the alleged abuser's attorney for advice about his or her testimony. The lawyer cannot ethically tell the alleged victim to lie about his or her testimony or tell the victim to assert the Fifth Amendment right when the facts of the situation do not call for it. The best course of action for a defense attorney is to encourage the reluctant victim to secure his or her own attorney for the hearing.
17. Are the victim's prior statements admissible in court?
In a situation where the alleged victim has changed his or her story from domestic violence to an incidental accident (victim now says he or she tripped and fell causing the injuries), the prosecutor may call other witnesses to testify to the original statements the alleged victim told to others. By statute, these prior inconsistent statements are usually admissible as substantive evidence to show the alleged victim's actual statements to police or family members after the incident occurred.
18. What are "excited utterances"?
Prosecutors may use an excited utterance to salvage an otherwise unsuccessful case when a witness has become unavailable by asserting spousal or Fifth Amendment privileges. An excited utterance must have been made under the immediate and uncontrolled domination of the senses under such circumstances so as to indicate trustworthiness. The proximity between the event and the statement need not be simultaneous so long as the statement is provoked by the excitement of the event without premeditation. True domestic violence and assault cases necessarily invoke a startling event often rendering the excited utterance exception applicable. Excited utterance statements can be made to police officers, friends, family members, and neighbors and then identified in court.
19. Why is the prosecutor trying to get medical records?
When a prosecutor has an uncooperative victim of domestic violence, the prosecutor may still make the case with testimony from a medical professional who treated the victim for his or her injuries resulting from the dispute. Statements made to a medical professional who provided treatment are an established exception to the hearsay rule. The prosecutor may obtain the relevant medical records by a signed release from the victim or by investigative subpoena. The defense can try to keep the statements to medical personnel out of evidence by persuading the trial court that the details of the assault were irrelevant to the treatment of the injuries.
20. Why is the prosecutor asking the victim for a sworn statement?
Prior testimony under oath is admissible when an alleged victim later becomes unavailable due to assertion of a testimonial privilege. A prosecutor who is concerned that a witness may become uncooperative may consider using a court reporter to make a record of any testimony during the early stages of the prosecution, such as bond hearings or preliminary hearings. A prosecutor can then refer back to the prior testimony to keep the testimony consistent.
21. What is the "Residual Hearsay Exception"?
The residual exception to the rule against the admission of hearsay can be argued by prosecutors in cases where no other exceptions appear to apply. Cases from other jurisdictions have held that statements made by domestic violence victims to police officers or family members shortly after the abuse are admissible under the residual hearsay exception when the victim later refuses to testify. In some cases, the exception has also been used to admit a victim's statements to an attorney about the defendant's abuse to that person, a victim's statements in a petition for an ex parte order of protection, and a victim's statements to close friends or relatives about the threats and beatings inflicted upon them by defendant.
22. Do experts testify in domestic assault cases?
While an expert may not "vouch' for the truthfulness of a particular witness, the modern trend allows domestic violence experts to point out that certain behavior is not uncommon for domestic abuse victims. Some of these behaviors include: failure to leave a violent relationship, a delay in reporting an assault, or a recantation or refusal to testify that might seem bizarre and peculiar to a jury absent expert testimony. Although Missouri is not completely committed to allowing expert testimony on battered women during the prosecution of domestic assault cases, the use of expert testimony has expanded in child abuse prosecutions and regarding defendants claiming self-defense in battered spouse syndrome cases.
23. Are my prior crimes admissible?
Evidence of previous or other crimes is often used in domestic violence cases. Evidence that the defendant has physically abused this particular victim in the past is usually admissible to prove the "animus" of the defendant towards the victim. The test used is whether the probative value of the preceding abuse outweighs the judicial effect. In many cases it has been held admissible, particularly when the defendant has claimed accident or self-defense. However, when the defendant confesses to the crime, the prejudicial effect of showing instances of prior abuse can outweigh its probative value.
24. What effect will a conviction have on my ability to own a weapon?
The 1996 Lautenberg Amendment to the Gun Control Act of 1968 made it unlawful for any person convicted of a misdemeanor crime of domestic violence to possess a firearm.
A suspended imposition of sentence under Missouri law would probably not count as a conviction and therefore would not bar subsequent weapons possession. The Lautenberg Amendment also makes it a federal crime for a person subject to a domestic violence protective order to possess a firearm.
25. How can the law firm of Holder Susan Slusher Oxenhandler assist me in my case?
Missouri's prosecution of domestic violence cases has continuously evolved over the past few years. The penalties are more potent and the evidentiary rules have been refined to make the conviction of an alleged abuser easier to obtain. The attorneys at Holder Susan Slusher Oxenhandler LLC are experienced in reviewing and challenging allegations of domestic assault. If you, or someone you know, have been accused of assault or domestic assault, contact the firm at (573) 355-9270 to set up your free consultation. Let us work for you.