Maine law allows particularly harsh penalties for Domestic Violence Assault. Still, the state must prove the case beyond all reasonable doubt before a person can be convicted. So what does the State need to prove, and what makes these cases different from any other type of assault charge?
I have tried to keep this article short but there is a lot of ground to cover. Use the links below to jump to a specific section.
- Elements of Domestic Violence Assault
- Definition of Family or Household Member
- Misdemeanor Charges and Sentences
- Felony Charges and Sentences
- How Probation Works in Maine
- Lifetime Federal Firearms Ban
- The Victim Wants the Charges Dropped
- Changing the Bail Conditions
- Possible Defenses
Elements of Domestic Violence Assault
Domestic Violence (DV) assault is simply assault, against a person who has a certain relationship with the defendant. So first we need to understand what Assault is. Title 17-A §207 says that person is guilty of assault if:
- The person intentionally, knowingly or recklessly
- Causes bodily injury or,
- Offensive physical contact to another person.
Understand that assault does not require cuts or bruises or a black eye. The only thing needed is physical contact that is offensive. Shoving, grabbing, pushing, bumping can all count as offensive physical contact even though they are not painful and did not injure the other person. Title 17-A §207A says that a person commits Domestic Violence Assault when they commit an assault and the victim is a family or household member. So What does that mean?
Definition of “Family or Household Member”
Title 19-A, section 4002, subsection 4 defines “Family or household members” to include:
- Current of former spouses or domestic partners. (Domestic partners means 2 unmarried adults who live together in a long term committed relationship responsable for each other’s welfare.)
- Individuals presently or formerly living together as spouses
- Biological parents of the same child
- Adult household members related by blood or marriage
- Minor children of a household member when the defendant is an adult household member
- Individuals presently or formerly living together
- Individuals who are or were sexual partners
That covers pretty much everyone. Most importantly, anyone who a person has ever had sex with can be a “family or household member.” This is true even though the relationship ended years ago, or the only sexual relationship was a one night stand.
Domestic Violence Assault is normally a Class D misdemeanor and the sentence can include:
- A maximum fine of $2000 and
- A maximum jail sentence of 364 days.
- Probation for up to 2 years
- Mandated completion of a 48 week Batterers Intervention education Program.
Probation is not normally authorized for a misdemeanor assault conviction but there is a special provision in Maine law that allows probation for domestic violence assault. When probation is allowed for misdemeanors, it generally is only for one year, but in DV assault, the probation period can be up to 2 years. Oddly enough, non DV assault has mandatory $300 fine but the legislature left the fine out of the DV statute. This seemed strange and so some judges thought that they still had to impose the fine. Recent case law makes clear that a fine is not mandatory for DV Assault.
Felony DV Assault Charges and Sentences
A person is charged with a class C felony if they commit Domestic Violence Assault and have a prior conviction within the last 10 years for committing:
- Domestic violence assault 17-A §207-A
- Domestic violence criminal threatening 17-A §209-A.
- Domestic violence terrorizing, 17-A §210-B.
- Domestic violence stalking, 17-A §210-C.
- Domestic violence reckless conduct, 17-A §211-A.
- Violating a Protection from Abuse order 19-A § 4011
- Felony violation of conditions of release 15 §1092 1(B), where the defendant was on bail for a domestic violence felony and violated a bail condition prohibiting contact with the victim or possessing a firearm.
Out of state convictions count too if they are for similar conduct to that listed above. Class C felonies are punishable by up to:
- 5 years in prison
- $5000 in fines
- 2 years of probation.
How Does Probation Work in Maine?
Maine has no parole and instead uses split sentence probation. This is where a person is sentenced to a jail term, which is fully or partially suspended with a period of probation to follow release. The probation period is a time where the person is free but subject to conditions like no contact with the victim and no drinking. So lets say that the sentence is 180 days with all but 80 days suspended and 1 year of probation. The person must first serve 80 days in jail since that portion of the sentence was unsuspended. They will then be released to serve 1 year of probation and if they complete that, they never return to jail. If they violate any probation conditions they can be sent back to jail to serve some or all of the 100 days remaining on the sentence.
Lifetime Federal Firearms Prohibition if Convicted.
Anyone convicted of Domestic Violence Assault in Maine will be prohibited from possessing guns or ammunition for the rest of their life. A violator can be charged with a Federal crime. This is true for misdemeanor of felony level convictions and certain other domestic violence convictions can also trigger this gun ban. This is a big topic which is not covered fully here. For more, click to this article which details the law on Federal firearm prohibitions.
The Victim Wants to Drop the Charges
Often, the “victim” of a domestic violence offense never wanted the case to go forward in the first place, or changes their mind once the charges are filed. Now, they want the charges dropped. Understand that the victim does not get to decide if the case goes forward and they can’t “drop the charges.” The criminal case is the State of Maine vs. The Defendant and it’s up to the prosecutor, who represents the State, to choose how to proceed. The victim is an important witness in these cases, and sometimes, the crime can’t be proved without their testimony. But often, there is other evidence that might prove the case even without the vitim’s cooperation:
- 911 call recording. This can often be played to the jury. If the victim called, their words might be strong evidence.
- Other documentation. Medical records, photographs, police documents might prove essential elements, like injury, and might provide some evidence that offensive physical contact was caused by another person.
- Other witness Statements. People who saw the incident or the aftermath can be called to testify. Police who investigated can be called as well.
- The Defendant’s own Statements to Police or others. These statements are admissible evidence and, if the defendant admitted to assault, that’s pretty strong proof.
- The Victim can be forced to testify. If the victim will not come in, they can be arrested and forced to testify.
- The Victim has changed their story. Victims have been forced to testify a certain way or face prosecution for perjury or falsification. If they do change their testimony, any prior statements can be used to suggest that the initial report was true and that they are lying now.
Changing Bail Conditions
After arrest, defendants who have bail set are subject to conditions with might prohibit them from contacting the alledged victim, returning home, or contacting other family members. The defendant or their lawyer can file a motion to modify bail asking for a change. If the victim supports the modification, the judge might change the conditions. These hearings can be held within a few days of release.
Defenses to DV Assault Charges
Here are some of the defense issues I commonly see in these cases:
- Factual Dispute: Very often, these cases come down to a dispute about what really happened. Alcohol is often a factor and sometimes is is hard to say what or who started an argument or a fight. Was there actual physical contact or just loud noises and mean words? Was the physical contact intentional, knowing or reckless and “offensive,” or was it just incidental to other activities like, trying to get out the door?
- Self Defense: Maine law allows a person to use physical force against another if they are only doing it to protect themselves or someone else from that other persons use of physical force. At trial, if the defendant can make out a claim of self defense, the State must prove that the conduct was not self defense beyond all reasonable doubt
- Witness Credibility and Motivation to Lie: This is often a major issue in these cases. The truth is that domesic relations are filled with passion, emotion, love, hate, and maybe years of frustration and anger. Sadly, some have used domestic violence allegations as a way to gain advantage in child custody or financial disputes, or in retaliation over a breakup. The accuser wields a lot of power in these cases. There are often only two witnesses and if the credibility of one is questionable, the case becomes much weaker.
Of course, there are dozens of issues that might be presented in any case. The exact facts and background will help a lawyer understand the best issues to pursue and how to effectively raise them durring negations and at trial. The stakes are very high. Many attorneys offer free consultations. It’s worth at least talking to an lawyer before deciding how to proceed.