Domestic assaults are taken seriously by the police, prosecutors and courts. It is advisable to retain a lawyer as soon as possible after being charged with an offence involving domestic violence.
What is a Domestic Offence?
Domestic offences, including domestic assault, are offences that occur within the context of a familial or romantic relationship (for example, between a husband and wife).
Domestic offences, including domestic assault, are not special or separate offences under the Criminal Code. The “domestic” classification simply refers to the nature of the relationship between the accused person and the complainant. A domestic offence is charged in the same way that a non-domestic offence would be charged. For example, a domestic assault would simply be charged as an assault.
In many jurisdictions, domestic cases are handled by a specific team of prosecutors. These prosecutors have considerable experience dealing with domestic cases.
Common Domestic Offences
Assault charges are some of the most common domestic offences charged. An assault is an offence involving an intentional, non-consensual application of force by the accused against the complainant.
A domestic assault can be charged as an assault, assault causing bodily harm, assault with a weapon, or an aggravated assault, depending on the circumstances and the nature of the allegations. Assault with a weapon can be charged if the complainant alleges that a weapon or object was used in the course of the assault. Assault causing bodily harm or aggravated assault can be charged depending on the nature and extent of any injuries observed by police.
Other offences that are often charged in the domestic context include threatening death or bodily harm, criminal harassment, and mischief. These offences often accompany charges of domestic assault.
Common Defences in Domestic Assault Cases
The possible defences available in any domestic assault case will depend on the specific circumstances of that case. In all cases it is advisable to speak to an experienced criminal lawyer to determine your available options for defending a domestic charge.
In the trial of any criminal offence, the prosecution is required to prove the offence beyond a reasonable doubt. Experienced criminal lawyers are often able to show that the prosecution has not proven the case beyond a reasonable doubt by effectively cross-examining prosecution witnesses and/or eliciting evidence in support of the accused’s position.
In domestic cases, credibility is very often a major issue. The parties to an allegation of domestic assault are either family members or in a relationship, there are often no potential witnesses other than the complainant and the accused. In such cases, the credibility and reliability of the prosecution and defence witness is very important. An experienced defence lawyer may be able to undermine the credibility of the complainant by pointing to inconsistencies between statements made to the police vs. testimony in court. The defence lawyer may also point to other evidence to show that the complainant’s version of events is not consistent with the truth.
Depending on the specific circumstances of a domestic assault case, the accused’s lawyer may be able to advance the argument that the complainant consented to the contact. In order to prove an assault charge and secure a conviction, the prosecution must establish that the accused applied force to the complainant without his or her consent. If the defence of consent is successful, the offence of assault can’t be proven. There are, however, difficulties with advancing this defence in the domestic context. The nature of alleged contact in domestic assault cases very often means that consent is unlikely to be accepted. Further, in cases involving bodily harm, the defence may not even be legally available. An experienced criminal lawyer will be able to determine the possibility of raising this defence in a domestic assault case.
Another possible defence that can arise in a domestic assault case is self-defence. The possibility of raising this defence will depend on the specific circumstances of the case. Self-defence is codified in law in the Criminal Code of Canada. In very general terms, a person is permitted to use force to defend himself or herself, or to defend his or her property. The force used in one’s defence must be reasonable in the circumstances. The amount of force that is “reasonable” is a question for the judge, and will depend on a number of circumstances including (but not limited to) the nature of the force, whether other options were available to respond, the size, age, gender and physical capabilities of the parties, and the nature, duration and history of any relationship between the parties. An experienced criminal defence lawyer will be able to assess a case and determine if self-defence is a possible defence to the allegations.