Fargo & Moorhead Legal Team

The Department of Justice Changed The Definition of Domestic Violence

In April 2018, the Department of Justice changed the definition of domestic violence in a quiet move that sparked little attention from the press. The change in definition limits domestic abuse as an exclusively criminal concern rather than trying to encompass the experiences of the accuser.

Under the old definition, issues such as the dynamics of power in the relationship, emotional, financial, or psychological control were factors used to label a person as abusive. The new meaning looks at abuse differently as strictly acts that would constitute a felony or a misdemeanor. It is substantially more narrowly tailored than the previous definition.

Throughout the United States, there has been a big push lately for criminal justice reform. Over-criminalization is seen as a major problem as our nation has the highest incarceration rate of any country in the world. Domestic violence allegations are one of the major gateways to this proverbial “felony factory.” How so?

Overly broad definitions. The laws have shifted domestic violence standards and definitions from an objective standard to a subjective one. Rather than adjudicating domestic violence on the actions of the accused, laws require findings of domestic abuse to be made based upon the purported psychological or emotional impact on the accuser. For example, Minn. Stat. § 609.2242 Sub. 1(1) defines domestic assault as someone who “commits an act with intent to cause fear in another of immediate bodily harm or death.” However, in many cases, the accuser might simply need to say, “I was afraid the other person was going to hit me,” without any facts to corroborate this fear. Similar definitions are reflected in the Minnesota Domestic Abuse Act codified in Minn. Stat. § 518B.01 Subd. 2(a)(2).

In July 2018, United States Representative Shiela Jackson Lee introduced her amendments to the Violence Against Women reauthorization bill, H.R. 6545 which attempted to expand the definition of domestic violence to include not only physical acts of violence, but also the use or attempted use of verbal, emotional, economic, or technological abuse, or any other coercive behavior committed, enabled, or solicited to gain or maintain “power and control” over a victim. (Emphasis added.)

Under these proposed expansions, anyone who, in the heat of the moment, has called their partner a derogatory name is technically guilty of verbal abuse. If you’ve ever given your partner the silent treatment, you’ve committed emotional abuse. If you’ve ever told your partner to stop purchasing unnecessary items that are not in the budget, you’ve committed economic abuse. If you’ve ever sent an annoying or unwanted text message to your partner, you’ve committed technological abuse. Anyone who has done any of these things could be, if pushed, found guilty of domestic abuse.

Mandatory Arrest Laws. Imagine being merely accused of any of the above activities. You give your partner the silent treatment, she gets so angry that she calls the police, and the police must come to arrest you based upon an allegation of domestic abuse. The Violence Against Women Act authorizes, and most states have enacted, mandatory arrest laws. This means that, without evidence or much investigation, the police must track down the accused and promptly arrest and hold the accused in jail until this person can be put in front of a judge for a bail hearing. If the report is made on a Friday, the accused will likely sit in jail over the weekend on a mere accusation.

No-drop prosecution policies. Nearly every prosecution entity employs a no-drop prosecution policy. Many times the accuser will call the prosecutor and inform him that they don’t want to pursue criminal charges against the accused. This is irrelevant in no-drop jurisdictions. Four-fifths of accusers later recant their stories. Nonetheless, most of these cases end in a guilty plea to a lesser charge by the defendant or an acquittal after a trial.

In my practice, I see many people allege domestic abuse as a means to gain leverage in a collateral action. It’s fairly difficult to exercise parenting time with your children when you are precluded from contact with the other parent during pick-up or drop-off. Not to mention that many states have implemented the “best interest factors,” and one factor addresses whether or not a parent has been a perpetrator of domestic violence, and if proven, it is a strike against that parent for custody of the children, if not an absolute bar.

No collateral attacks on domestic violence findings. Once a person has been adjudicated of domestic violence or has been subjected to a no-contact order, the merits of that finding cannot be undermined in later proceedings. State v. Harrington, 504 N.W.2d (Minn.App. 1993). For example, if a person is subjected to a restraining order for allegedly saying something that the accuser construed to be threatening or ominous at the onset of divorce proceedings, in a later custody hearing, the accused cannot attempt to clarify the earlier statements or place them into context at a subsequent hearing once an order has been entered.

No discovery or disclosure in civil domestic abuse actions. Unlike most civil actions, allegations alleging harassment or domestic abuse are not subject to the same rules of discovery. A party cannot serve interrogatories, requests for admission, or requests for documents on a petitioner in an application for a domestic abuse court order. This gives the accuser ample time and opportunity to change their story or outright lie in court in order to obtain that order against another person.

Financial incentive to make or stick to false or misleading allegations. Again, it doesn’t require an adjudication of domestic violence to obtain special services, it only takes an accusation. Under the “Resources” tab on the Lakes Crisis and Resource Center webpage (lakescrisis.com/resources), a wide variety of special services are listed that offer free or significantly reduced cost food, child care, medical care, energy assistance, and housing to “victims” of domestic abuse. Other organizations offer free fuel cards to accusers too. Again, there is no need for someone to have been found guilty of domestic abuse for these services to be handed out…only a vague accusation must be made.

This not only trivializes the problem of real domestic violence in our country, but it serves to overwhelm the criminal justice system with minor cases. Above all, it encourages a waterfall of false allegations.

No recourse for the accused. When someone has been accused of domestic abuse, as discussed earlier, they are immediately arrested and plucked from their daily lives. If this means that the accused misses work, misses meetings, misses their flight to Houston to close a major deal, or anything while they sit in jail waiting for a judge to set bail, so be it. Sadly, if the accuser made up the allegations and later recants, there is no recourse for the accused. Immunity prevents a lawsuit against the accuser who falsified the accusations, the police who failed to investigate, and the prosecutor who continues pushing forward on a case with little or no evidence to support a conviction.

No, we’re not living in a dystopian science fiction story…this is becoming the reality of the domestic abuse laws in the United States. At least with the latest reforms by the Department of Justice, there remains a glimmer of hope that fairness and due process are not completely lost.