It is not unusual for a boyfriend and a girlfriend to get into a verbal disagreement. After all couples argues. However, when the argument escalates into something more serious or if one of the parties conduct becomes threatening then the situation is no long a private disagreement. It has become a criminal act. Domestic violence is a general term used to describe crimes where the defendant and the victim are in an intimate relationship such as being married, living together, dating or parenting children. While both men and women can be victims of domestic violence, it is more common for women to be victims. Many of these victims are girlfriends of the defendants. If you are involved in a domestic incident that escalates there are several possible criminal offenses that you might face including assault, strangulation or even murder. When police get a call about a domestic disturbance, they are often quick to try to diffuse the situation by making an arrest. Typically, if there is a boyfriend and girlfriend involved, the boyfriend is arrested and charged with a domestic violence related crime. However, the facts are not always as they seem, and law enforcement does not always get it right. The consequences of being charged and convicted of a criminal offense related to a domestic dispute are serious. You could end up in prison for several years. If you are charged with a domestic violence offense based on an incident involving your girlfriend, contact an experienced Nassau County Domestic Violence Against a Girlfriend Lawyer who will explain to you your legal rights and vigorously defend you against the criminal charges.
Under New York law there is no one criminal offense that is called "domestic violence." It is a broad term for violence that occurs between a boyfriend and girlfriend, a married couple, a coupling living together, a couple who share children, roommates and family members. Criminal offenses that commonly result from domestic disputes include:
Disorderly conduct. Disorderly conduct is a common domestic violence charge. For instance, if you are your girlfriend get into a heated argument or get into a physical fight while riding subway, you can be charged with disorderly conduct. Disorderly conduct is defined as fighting, engaging in violent, tumultuous or threatening behavior, making unreasonable noise, using abusive or obscene language in public, with the intent of causing a public inconvenience, annoyance or alarm. N.Y. Pen. Law § 240.20. Disorderly conduct is not a misdemeanor or felony, but a violation.
Harassment . If you are angry if your girlfriend, you may be tempted to repeatedly call her or send her angry text or email messages. You may even approach her and engage in alarming conduct such as kicking or shoving. Even if you do not physically harm your girlfriend and have no intention to harm her, your actions may still amount to a crime. You will face a charge of harassment if you behave in an annoying or violent way toward your girlfriend. Examples of this type of behavior includes striking, shoving, kicking, following, or engaging in other alarming conduct against your girlfriend. N.Y. Pen. Law § 240.25 and 240.26. If you do so by means of a letter, phone, or email the charge will be raised to aggravated harassment. N.Y. Pen. Law § 240.30. Nowadays such harassment is often accomplished via texting. For example, in People v. Bohlman, 913 N.Y.S.2d 497 (2010), the defendant faced several domestic violence charges, including aggravated harassment in the second degree based on calling, texting and mailing letters to the victim, defendant's girlfriend.
Sexual assault. A common type of domestic violence against a girlfriend or former girlfriend is sexual assault. Many still believe that a girlfriend must always agree to have sex with her boyfriend. This is the case. If you have sex with your girlfriend or any other person without that person's consent then you would have sexually assaulted that person. There are several different types of sexual assault. The particular charge that you will face depends on the type of sex act and other factors surrounding the incident.
For example, New York law defines sexual misconduct as engaging in sexual intercourse, oral sex, or anal sex with another person without that person's consent. If the victim is your girlfriend then the offense has the added element of being a case of domestic violence. Sexual misconduct is a Class A misdemeanor. If you are convicted of sexual misconduct the maximum sentence that you could face is up to a year in jail. N.Y. Pen. Law § 130.20. On the other hand, sexual abuse is having sexual contact with another person such as a girlfriend without that person's consent. Sexual contact is touching of the sexual or intimate parts for sexual gratification. N.Y. Pen. Law § 130.00(3). Sexual or intimate parts refer to the vagina, penis, anus, rectum, buttocks, breasts, lips and mouth. Penetration is not required for a charge of sexual abuse. There are three degrees of sexual abuse: sexual abuse in the first degree, second degree and third degree. The charge you will face depends on the basis for the lack of consent. For example, if you used physical force or threats to have sexual contact with your girlfriend, then the charge will be sexual abuse in the first degree, a Class D felony. N.Y. Pen. Law § 130.65.
Rape is one of the most serious crimes associated with domestic violence. You will face a charge of rape if you force your girlfriend to have sexual intercourse with you. Force or lack of consent can be based on using physical force or using threats. In addition, if you have sexual intercourse with your girlfriend while she is physically helpless, mentally disabled or mentally incapacitated, you could face a charge of rape. If your girlfriend is a minor and you have sexual intercourse with her, you may face a charge of statutory rape. There are 3 degrees of rape: rape in the first degree, second degree and third degree. Rape in the first degree is the most serious rape charge. It involves having sexual intercourse with someone by physical force or having sexual intercourse with someone who is physically helpless. Rape in the first degree is a Class B felony. N.Y. Pen. Law § 130.35. Rape in the second degree and rape in the third degree also involve having sex with someone without that person's consent, however, for a second degree charge the lack of consent is based on the victim being mentally disabled, mentally incapacitated, or because the victim was less than 15. N.Y. Pen. Law § 130.30. You will have committed rape in the third degree if the victim's lack of consent was based on the victim being less than 17 years old or for any other reason. N.Y. Pen. Law § 130.25.
Assault. You have committed assault if you recklessly or negligently injure another person. It does not matter if you did not intend to injure that person. N.Y. Pen. Law § 120.00. There are several different offenses related to assault. If when you assault your girlfriend with the intent to seriously harm her and you do in fact seriously harm her, you will be arrested and charged with assault in the second degree. N.Y. Pen. Law § 120.05. This type of assault often involves the use of a deadly weapon such as a gun or a knife. However, the "weapon" can be almost anything that can cause someone harm. For example, in People v. Roblee, 890 N.Y.S.2d 166 (2009), defendant Thomas Roblee was convicted of assault in the second degree after kicking his girlfriend the head with the steel-toed boot he was wearing. Assault in the first degree is similar to assault in the second degree except that the assault was with a dangerous weapon and caused the victim a serious injury, the intent of the assault was to permanently disfigure, or the assault was with depraved indifferent to human life. N.Y. Pen. Law § 120.10. For example, in the case of People v. Russell, 824 N.Y.S.2d 684 (2006), the defendant punched the victim several times, causing her to lose her right eye.
Reckless endangerment. To face a charge of reckless endangerment, it is not required that you must actually cause harm to another person. The law only requires that you have engaged in conduct that created a significant risk of causing another person serious injury. N.Y. Pen. Law § 120.20. To be charged with reckless endangerment in the first degree, the prosecution must establish that not just that your actions posed a substantial risk of serious injury to another person, but that your actions showed a depraved indifference to human life and posed a risk of death to another person. N.Y. Pen. Law § 120.25. In the case of People v. Clark, 983 N.Y.S.2d 205 (2013), the defendant faced a reckless endangerment charged based on firing a gun from the window of car.
Stalking. Stalking is one of the most common types of domestic violence crimes. Stalking is defined as engaging in the following activity:
Pen. Law § 120.45.
There are 4 stalking offenses: stalking in the fourth degree, third degree, second degree, and first degree. The most serious stalking offense is stalking in the first degree. You will face this charge if while stalking someone you also cause injury to your girlfriend. Another reason that you will face this charge is while in the course of stalking the victim you also commit one of the following sex offenses: rape in the third degree, rape in the second degree, criminal sexual act in the third degree, criminal sexual act in the second degree, or female genital mutilation. N.Y. Pen. Law § 120.60 (2). Stalking in the fourth and third degrees are misdemeanors. Stalking in the second degree is a Class E felony, while stalking in the first degree is a Class D felony.
Strangulation. Strangulation involves obstructing the breathing or blood circulation of another person. While there is also a misdemeanor criminal offense called criminal obstruction of breathing or blood circulation, strangulation is a much more serious offense. To face a charge of strangulation in the second degree, when causing the obstruction of the breathing or blood circulation of another person you also cause her to lose consciousness, fall into a stupor, or cause a physical injury. N.Y. Pen. Law § 121.12. A strangulation charge will be raised to the more serious charge of strangulation in the first degree if the victim suffers serious injury. N.Y. Pen. Law § 121.13.
Murder. In the most severe cases of domestic violence against girlfriends as well as other types of victims, the victim is murdered. Murder in the second degree is the charge you will face if you cause the death of your girlfriend or any other person while you were under the influence of extreme emotional disturbance. N.Y. Pen. Law § 125.25. An extreme emotional disturbance amounts to experience a mental infirmity based on the circumstances that you are under that causes you to lose control. Murder in the first degree involves intentionally causing the death of another person. N.Y. Pen. Law § 125.27
What is an Order of Protection?If someone accuses you of a domestic violence crime, then that person may also seek to order of protection against you. An order of protection is issued in order keep victims of violence, abuse, harassment, or threats safe from harm or further harm. An Order of Protection may be a short-term order, an emergency order, or longer term order. An emergency Order of Protection is typically only issued where the petitioner has shown that there is a danger of immediate harm unless an order is issued. An emergency order is valid for only a few days, until a hearing can be held. After a hearing, the court may issue a longer term Order of Protection.
To keep the victim safe the judge has the power to grant a variety of different types of protections and restrictions including that you must:
If you violate the terms of an Order of Protection, you may be arrested and criminally prosecuted. N.Y. FCT. Law § 846. This means that not only will you still have to face the original criminal charges based on the act of domestic violence, you will also face a criminal charge related to violating the order of protection. In People v. Worthy, 972 N.Y.S.2d 122 (2013), defendant Devine Worthy violated a no-contact Order of Protection issued for the benefit of his girlfriend. Worthy was convicted of criminal contempt in the first degree, a Class E felony. N.Y. Pen. Law § 215.51
This does not mean, however, that you cannot fight an order for protection if you feel it was wrongly issued. To fight it you must appear at the hearing armed with evidence to disprove the allegations supporting the order. If the judge concludes that the petitioner's allegations are not true, then the order will be lifted. N.Y. FCT. Law § 841. If the judge determines that the allegations are true then the judge may issue a permanent Order of Protection that can remain in effect for up to 5 years. N.Y. FCT. Law §§ 841 and 842
What is the Punishment for being Convicted of Domestic Violence?If you are ultimately convicted of a crime based on an act of domestic violence against your girlfriend, your punishment may range from probation up to life in prison. It depends on the charge. One of the least severe domestic violence offenses is disorderly conduct. Disorderly conduct is classified as a violation. This means that if you are convicted the maximum possible sentence that you will have is 15 days in jail and a fine of up to $250. However, the vast majority of crimes related to domestic violence are either misdemeanors or felonies. In most cases, if you are convicted you face the possibility of going to prison for many years.
The amount of time you will be required to spend in prison depends on only the particular criminal offense of which you are convicted, but also on your criminal background. If you have been convicted of a felony within the prior 10 years, you are more likely to be sentenced to at least some prison time.
Keep in mind that if you are charged with a domestic violence offense, it is possible that you will not be charged with just one offense, but with a variety of offenses. If you are ultimately convicted of several offenses, your sentence will be based on all of the crimes of which you were convicted.
In addition to being sentenced to time in jail or prison, if you are convicted of a domestic violence offense, your sentence may be just probation, or a combination of incarceration and probation. The length of your probation term depends on whether the crime was a misdemeanor or a felony, and whether or not the crime was a sex crime. If the crime was a misdemeanor the mandatory term of probation will be 3 years; for a felony, 5 years. If the crime was a misdemeanor sex crime the mandatory term of probation will be 6 years; for a felony, 10 years. Prison and probation sentences are served concurrently. This means that if you are sentenced to 4 years in prison and 5 years probation for a felony conviction, you will serve the first 4 years of your probation term while you are in still in prison, leaving you to serve only one year probation after you are released from prison.
While probation is certainly very different from being in jail or in prison, probation does come with several restrictions that may include that:
Under New York Criminal Procedure Law, if it is suspected that you have violated the terms of your probation, you will be required to appear in court before the judge that originally sentenced you. The court will determine whether to revoke your probation, continue it, or modify the terms of your probation. N.Y. CPL. Law § 410.70
In addition to possible jail or prison term, probation and fine, if you are convicted of a crime that is also a sex offense, you will be required to register as a sex offender. Under the terms of the New York Sex Offender Registration Act you will have to register certain information with a designated law enforcement agency. N.Y. Cor. Law § 168. You will have to register for at least 20 years. Depending on the risk the court determines that you present to the community, you may have to register for the rest of your life. As a registered sex offender several restrictions will be placed on you. For example, you will not be able to move out of the state of New York without informing law enforcement. If you do move, you must let the local law enforcement in your new jurisdiction that you have moved to that jurisdiction. You must then follow the sex offender registration rules of that jurisdiction. Even if you do not leave New York, you will have to keep law enforcement informed of your address. Some sex offenders will have to verify their address to the police every 90 days. You will also have to report to the local police and have your photograph taken every three years. You may have to let the police know the name and address of your employer, and the name of the school you are attending. If you do not follow these rules, you can be arrested and charged with a Class D felony that could result in jail or prison time.
While there are a lot of emotional issues involved in domestic violence, crimes related to domestic violence are largely treated just like any other crime. If you are convicted, your life will be forever changed. You may end up in prison for many years. You may have to pay significant fines. You will have a criminal record. However, there may be defenses to charges that you committed a crime against your girlfriend that could result if the charges against you being dropped or reduced. Or such a defense may lead to an acquittal. The staff at Stephen Bilkis & Associates, PLLC has years of experience successfully defending clients in New York criminal courts, including Integrated Domestic Violence Court, who have been accused of stalking, reckless endangerment, rape, assault, strangulation, child endangerment and murder. Contact us at 800.696.9529 to schedule a free, no obligation consultation regarding your case. We serve those accused of domestic violence in the following locations: