Utah Code § 77-36-1 defines domestic violence as “any criminal offense involving violence or physical harm or threat of violence or physical harm, or any attempt, conspiracy, or solicitation to commit a criminal offense involving violence or physical harm, when committed by one cohabitant against another. Domestic violence also means commission or attempt to commit any of the following offenses by one cohabitant against another.”
(a) aggravated assault,
(c) criminal homicide,
(e) electronic communication harassment,
(f) kidnapping, child kidnapping, or aggravated kidnapping,
(h) sexual offenses,
(j) unlawful detention or unlawful detention of a minor,
(k) violation of a protective order or ex parte protective order,
(l) any offense against property (Property Destruction, Burglary and Criminal Trespass, Robbery),
(m) possession of a deadly weapon with intent to assault,
(n) discharge of a firearm from a vehicle, near a highway, or in the direction of any person, building, or vehicle,
(o) disorderly conduct,
(p) child abuse.
This means any actual or threatened violence or physical harm, or any attempt to commit the same, or committing or attempting to commit any of the crimes listed against a cohabitant is domestic violence.
Without a cohabitant involved, there cannot be domestic violence. Utah Code § 78B-7-102 states “a cohabitant is an emancipated person, or a person who is 16 years of age or older who:
(a) is or was a spouse of the other party;
(b) is or was living as if a spouse of the other party;
(c) is related by blood or marriage to the other party;
(d) has one or more children in common with the other party;
(e) is the biological parent of the other party’s unborn child; or
(f) resides or has resided in the same residence as the other party.
Consider the following hypothetical. A husband and wife get into a heated argument in which the wife slaps the husband. Technically, she has committed domestic violence. Having heard the angry exchange, a neighbor calls the police. Police come to the home. If either husband or wife mentions the wife’s slapping of the husband, or if the police see the red welt from the slap on husband’s face, wife would be charged with domestic violence assault. If children were present, additional charges would be filed.
If the police report to a call and there is indication of abuse, charges will be filed. Even if wife has never had any criminal record, even if husband does not feel charges are warranted, the police would be obligated.
At this point, the wife should seriously consider seeking legal counsel. She has, in fact, committed domestic violence but, with counsel, there are options potentially available to her which she would not have had before.
Competent counsel can work to represent her interests, and ensure she is represented in a way that accurately depicts who she is.
Potential options include getting charges reduced, possibly even dismissed, and getting a client a plea in abeyance agreement.
Domestic violence is undoubtedly a serious topic and upsetting in any circumstance. While the system is working to protect as many as possible from being victims, it may at times reach slightly too far. If you feel this applies to you or a loved one, consider getting counsel to help you navigate through these matters.
Schmidt & Gladstone Law Firm
136 East South Temple Street #1500
Salt Lake City, UT 84111