How Is Domestic Violence Defined In New York?
New York does not have a specific list of offenses unique to domestic violence. Instead, New York outlaws conduct that could apply to non-domestic victims as well as domestic victims. For example, an assault charge could follow from an attack against a complete stranger, but it could also be against a domestic partner. The same is true for harassment, and even many sex crimes. What brings disparate crimes within the category of domestic violence is not the act or acts, but rather the relationship between the accused and the alleged victim.
The Family Court Act makes this criteria explicit. That act gives two criteria for a family offense. The first is conduct and the second is the relationship between the parties.
Family offenses include the following conduct: disorderly conduct, harassment in the first degree, harassment in the second degree, aggravated harassment in the second degree, sexual misconduct, forcible touching, sexual abuse in the third degree, sexual abuse in the second degree as set forth in subdivision one of section 130.60 of the penal law, stalking in the first degree, stalking in the second degree, stalking in the third degree, stalking in the fourth degree, criminal mischief, menacing in the second degree, menacing in the third degree, reckless endangerment, criminal obstruction of breathing or blood circulation, strangulation in the second degree, strangulation in the first degree, assault in the second degree, assault in the third degree, an attempted assault, identity theft in the first degree, identity theft in the second degree, identity theft in the third degree, grand larceny in the fourth degree, grand larceny in the third degree or coercion in the second degree as set forth in subdivisions one, two and three of section 135.60 of the penal law between spouses or former spouses, or between parent and child or between members of the same family or household.
But this conduct must be between parties of a certain relationship to qualify as a family offense. The required relationships are:
- persons related by consanguinity or affinity;
- persons legally married to one another;
- persons formerly married to one another regardless of whether they still reside in the same household;
- persons who have a child in common regardless of whether such persons have been married or have lived together at any time; and
- persons who are not related by consanguinity or affinity and who are or have been in an intimate relationship regardless of whether such persons have lived together at any tim
Factors the court may consider in determining whether a relationship is an “intimate relationship” include but are not limited to: the nature or type of relationship, regardless of whether the relationship is sexual in nature; the frequency of interaction between the persons; and the duration of the relationship. Neither a casual acquaintance nor ordinary fraternization between two individuals in business or social contexts shall be deemed to constitute an “intimate relationship”. (Family Court Act § 812).
How Serious Are Allegations Of Domestic Violence?
If the offense is prosecuted in the criminal courts, it tends to be more serious. The criminal courts can impose jail terms. If the offense is a felony, one can be held without bond.
If the offense is prosecuted in the Family Court, the consequences tend to be more remedial and less punitive. While being excluded from one’s home and being told that one must stay away from family members including one’s children is certainly serious, it is qualitatively different than be jailed. However, even in the Family Court a violation of the order to stay away (or other provisions of the orders) can and often does lead to incarceration.
Will Someone Charged Of Domestic Violence Be Prevented from Contacting Their Spouse?
Orders that prevent contact with family members are not inevitable. But they are common. These orders can prevent communication as well as a geographic prohibition. These can be quite disruptive to one’s normal life and the consequences for violating can be very serious.
Is An Order Of Protection Automatically Placed In A Domestic Violence Scenario?
No, an order of protection or restraining order is not automatic. The judge will use his or her judgment to decide whether to sign an order of protection. Just as important, the judge will decide if the order requires the accused to stay away from the alleged victim and other family members (including children). And it is important to note, the judge has this power without notice to the accused without giving the accused an opportunity to be heard. Of course, in that case, the accused will have that opportunity shortly after the judge imposes the initial order.
For more information on Domestic Violence Charges In New York, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (845) 794-1303 today.
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