1. For the next few months I will be focusing on Domestic Violence (DV), a very
serious and complex topic. For the victims of DV it can be a life changing and life
turning event. For the perpetrators of DV it may create a loss of liberty, job
opportunities, privileges and the stigma of being labeled as such. During my time
as a prosecutor in Aspen I handled close to one hundred DV cases and can
attest that these acts are more common and prevalent than one may think.
Additionally, the perpetrators run the gamut in race, gender and socioeconomic
backgrounds.
Domestic violence is not a crime in and of itself. Domestic violence is an
enhancement to other criminal offenses such as harassment, assault, trespass,
and destruction of property, among other crimes. Upon conviction, the domestic
violence enhancement carries additional sentencing considerations, including
mandatory perpetrator treatment.
Criminally, domestic violence is defined as “an act or threatened act of violence
against a person with whom the actor is or has been involved in an intimate
relationship.” An intimate relationship is defined as “a relationship between
spouses, former spouses, past or present unmarried couples, or persons who
are both parents of the same child regardless of whether the persons have been
married or have lived together at any time.” Domestic violence also includes “any
other crime against a person or against property, or any municipal ordinance
violation against a person or against property when used as a method of
coercion, control, punishment, intimidation, or revenge directed against a person
with whom the actor is or has been involved in an intimate relationship.”
To help and simplify this complex legislative and legal maze let’s break it down.
In the criminal context, in order for a crime to be given the DV classification the
people involved must first have been in an intimate relationship as per the
definition by law. However, the way in which the legislatures use the term
‘intimate’ is really more a term of art because the couple involved does not need
to be intimate in the way we commonly connote the word intimate in a sexual
nature. They merely need to represent themselves as a couple, of either different
sexes or the same sex. To illustrate, I had a case where two individuals met on
Match.com and only went on a couple of dates without being sexually intimate.
On their third date one party assaulted the other. This case was deemed one of
DV because the purpose and intent of their being together was to establish an
intimate relationship. Conversely, what happens in the context of a one-night
stand or a prostitute/client relationship? Would this be deemed an intimate
relationship based on the definition provided by the legislatures? This is where
interpretation plays a large role in defining what is an “intimate relationship”.
States are left to their own individual definitions and interpretation as to what is
intimate so unfortunately there is no national bright line rule.
Next, in order for the DV classification to be designated, the crime committed
must either be an act of violence or a threatened act of violence. To demonstrate,

2. say a couple in an intimate relationship gets into a fight and one person hits the
other causing pain. That is a third degree assault DV. Simple! However, the
second, more complex and often misinterpreted way of committing an act of DV
is the commission of a non-violent crime that was done for the purpose of any
one of five methods; coercion, control, punishment, revenge or intimidation. This
is where it tends to get complicated. Because, in order to prove such a case the
prosecution must show a crime was committed and, the non-violent crime, was
done for any of the five method purposes. An example would be if one person
continuously calls, emails or texts another person to the point that it becomes
harassment. The crime would be that of harassment, however, in order for it to
be DV the communication must have been done for one of the five purposes. So
how is that determined? Law enforcement would have to see the content of the
communication and establish if there was anything being said that would make it
helpful to determine the purpose. They would want to ask the sender of the
various communications why they were sent. Sometimes it is not blatantly
obvious as to the underlying purpose of why a non-violent crime is committed.
Perhaps it was just done out of anger, frustration or by accident and that is when
it becomes difficult for law enforcement. Next month I will discuss the mandates
on law enforcement on making arrests in DV cases and what they are evaluating
before making such an arrest.