There is a difference between a civil domestic violence action and a criminal domestic violence action in cases of domestic abuse. A civil suit is a claim made by someone for monetary or other forms of relief. A criminal action is an act of accusing someone of violating the law, which may have implications that include loss of liberty as a result of the person’s failure to abide by the law. These are two different kinds of standards.
A criminal case must be proven beyond a reasonable doubt. A civil case usually must be proven by a preponderance of the evidence. There are two burdens of proof, different types of relief prior to negotiating and there is also a different understanding of who controls and makes the ultimate decision of whether or not to go forward with their action.
In a civil domestic violence case, someone is asking for monetary damages or certain specific actions, like custody or visitation. It means they are asking for monetary relief for another person’s bad conduct. In a civil case, a plaintiff, such as the alleged victim, can drop the domestic violence allegations any time they choose.
They may choose to drop the charges in a civil case for a variety of reasons with or without prejudice. Sometimes, they will want to drop the case permanently and sometimes they want only to postpone the case with the idea that they may bring the charges back at a later time. It is helpful to have a domestic violence defense attorney to help anyone facing this actions to clarify if a person can drop domestic violation allegations and what these potential charges mean.
In a criminal domestic violence action, the victim does not ask for anything and is only one party, a witness, to the case. The Commonwealth needs the alleged victim to participate in a domestic violence case but it does not necessarily need them to be cooperative.
Whoever is prosecuting a state or federal case can prosecute the case based upon the officer’s testimony, the alleged statements made by the accused, and circumstantial evidence. Even if the individual would like to drop the domestic violence allegations, the prosecuting office can move forward with the trial. In a domestic violence case, the Commonwealth attorney or the government attorney, not the victim, decides whether the prosecution goes forward.
A warrant of arrest for a Virginia charge has language on it that says, “By signing this order of arrest, the officer or the complaining witness gives up the ability to drop the charge later and only the prosecutor or the judge can drop the charge.”
It is an important footnote that is often overlooked when someone is asked for criminal charges. When this warrant is presented to the magistrate for the charges to be brought down and the person arrested, the magistrate, upon hearing the probable cause, takes their authority and hands it to the Commonwealth.
The Commonwealth is viewed to be acting in everyone’s best interests. They evaluate the case and decide whether or not the case should be in prosecution. They look into the alleged victim’s input as one of the factors to decide whether to go forward. However, it is not guaranteed and they certainly are not bound by an alleged victim who does not want to go forward.
Even if an alleged victim drops a civil domestic violence action, the district attorney can force the alleged victim to participate in the criminal case. In a criminal case, the Commonwealth has the power of a subpoena, meaning they can issue a witness subpoenaed to the alleged victim that compels them to testify unless they have a constitutional right that inhibits them from testifying, such as the right to remain silent because they may implicate themselves in a criminal case. They are compelled to testify.
They can assert their Fifth Amendment privilege and the judge can evaluate whether that privilege exists. In certain cases, the alleged victim may have no Fifth Amendment protection and can be required to testify. If they refuse to testify, they may be found in contempt by the court.
Typically, the accused is placed under an order of protection that keeps them from contacting the alleged victim during that time period. If there is no order of protection, they can contact them. Sometimes, the alleged victim is a ready and willing participant in the accused’s defense.
It is not advisable for the alleged person to contact the accuser and try to influence their decision, even if they are not under an order of protection. It does not make a good impression in court when they do not want to cooperate and appear to be compelled by the accused. It is a good idea to get a domestic violence attorney involved who is experienced in these matters to help each particular case.
Patrick Woolley Attorney At Law