"Antique Valentine 1909 01" by Chordboard - Self, from material in copier's possession. Licensed under Public domain via Wikimedia Commons - http://commons.wikimedia.org/wiki/File:Antique_Valentine_1909_01.jpg#mediaviewer/File:Antique_Valentine_1909_01.jpg
by David Cmelik
Domestic abuse is, like everything codified in the law, a phrase laden with value judgments. The Legislature has seen fit to distinguish assaults among household members, partners in a relationship, spouses, former spouses, and parents of the same biological child from perfect strangers. In any case, the law doesn’t distinguish simple assault and domestic abuse in the way the assault occurred—all of that is defined by Iowa Code section 708.1, where the domestic abuse statute points readers to define the assault part of domestic assault. The dinstction between simple assault and “domestic abuse” is in the actual relationship between the warring parties: family or house hold members who resided together at the time of the assault, household members within the last year, separated spouses or persons divorced from one another not residing together at the time of the assault, parents of the same biological child, persons in or who have been in an “intimate” relationship with contact within the last year. In determining whether a relationship has been “intimate” and whether contact has occurred within the last year, the fact-finder may consider among other things the duration of the relationship, the frequency of interaction, whether the relationship has been terminated, and the nature of the relationship, characterized by either. “Among other things” in that last sentence means that the aforementioned factors are not the only factors the fact finder can consider. Under the law in Iowa a peace officer who determines that domestic abuse occurred must make an arrest of the “primary physical aggressor” and need not arrest a secondary physical aggressor who acts with justification to repel an attack. I have seen no statistics regarding gender in the majority of such arrests. Factors that law enforcement officers are entitled to consider in determining who is the primary physical aggressor include “the need to protect victims of domestic abuse, the relative degree of injury or fear inflicted on the persons involved, and any history of domestic abuse between the persons involved.” The Court will immediately enter a no-contact order as against a domestic abuse defendant that excludes them from the home of the protected party if the defendant and the alleged victim share one and further will require the surrender of all firearms. My clients have found this particularly onerous because, in their view, it removes their ability to maintain a residence prior to a finding of guilt. Forcing defendants to surrender firearms—even when no firearms are used in the commission of the alleged domestic abuse—is not technically punitive and has a rational purpose, but nevertheless adds a financial burden to an otherwise unpleasant situation. Truth be told, however, as a defense attorney I’m okay with surrender; if the original accusation is false, the chance of an additional false accusation involving a firearm is reduced if the defendant surrenders all firearms. Better to rule out such a false accusation. Whether a criminal defendant believes the law is arbitrary in its distinction of purportedly “domestic” assault complainants as compared to strangers is irrelevant at this point unless they intend on running for the Statehouse or State Senate. It’s the law and has been for some time. The fact of the matter is that the Code ratchets up the severity of domestic assault for each such previous conviction. Second and third time domestic abuse offenders are subject to far greater penalties in Iowa. If you or a loved one is facing a domestic abuse charge, please call David A. Cmelik Law PLC for a free ½ hour initial consultation. But remember that neither reading a blog nor sending unsolicited information to a lawyer over the Internet results in an attorney-client relationship.
Copyright David A. Cmelik Law PLC. All rights reserved.