The argument started over something small, like unpaid bills or household chores. Voices were raised, harsh words were exchanged, and someone called the police. Now you're facing domestic assault charges in Virginia, even though nobody was physically hurt.
Many people believe domestic assault charges require visible injuries or physical contact. This isn't strictly true under Virginia law. Our Chesapeake criminal defense attorney regularly helps clients who are shocked to learn they can face serious criminal charges when they attempt to strike someone, even if no one is physically injured.
How Virginia's Domestic Assault Laws Work
Virginia Code § 18.2-57.2 governs assault and battery against family or household members. Unlike general assault charges, domestic assault carries enhanced penalties and additional consequences even when no physical injuries occur.
Courts interpret assault as either an attempted battery or an act intended to place another in reasonable fear of immediate harm. While people might refer to "verbal assault charges" in everyday language, words alone cannot support assault charges under Virginia law. Rather, there must be threatening conduct or an overt act that creates genuine fear.
Who Falls Under Domestic Violence Laws?
Virginia law defines "family or household members" as:
- Current or former spouses
- People who share a child
- Those who live together or have lived together within the past 12 months
- Certain in-laws residing in the same home
Dating partners who don't cohabit and share no children typically face simple assault charges under § 18.2-57 rather than domestic assault charges. However, they may still face federal firearm restrictions if convicted under certain circumstances.
During a heated divorce discussion, imagine Mark raises his fist and tells his estranged wife Emily, "I should knock some sense into you." Mark's threatening gesture, combined with menacing words, could support domestic assault charges if Sarah felt genuinely afraid. The raised fist provides the required “overt act” beyond mere words.
Evidence Prosecutors Use in No-Injury Cases
Prosecutors build Virginia domestic assault cases without physical injuries using witness testimony, police reports, and documentation of threatening conduct. Officers note the alleged victim's emotional state and property damage, taking statements from both parties if called to the scene.
Modern technology provides additional evidence through phone recordings, text messages, voicemails, and social media posts containing threatening language. Security cameras or cell phone videos might capture threatening gestures or aggressive behavior that placed someone in fear of harm.
Prior incidents between parties may be admissible for limited purposes under Virginia Rule of Evidence 2:404(b). They’re not to prove propensity, but for specific non-character purposes like intent, motive, or absence of mistake, and only if probative value outweighs prejudice.
Domestic Assault Arrest Requirements and Police Response
Virginia law requires law enforcement officers who have probable cause in domestic assault calls to arrest the predominant physical aggressor, even without visible injuries. This warrantless arrest authority means police can take you into custody based on evidence of threatening conduct combined with an overt act.
Officers must determine who the primary aggressor was when both parties engaged in threatening behavior. Factors include the relative severity of injuries (if any), the likelihood of future injury, prior complaints, and the relative sizes and apparent fear levels of the parties.
Serious Consequences Beyond Jail Time
Domestic assault convictions are Class 1 misdemeanors carrying penalties up to 12 months in jail and/or $2,500 in fines. A third conviction within 20 years elevates the charge to a Class 6 felony with potential prison time of up to five years.
Emergency Protective Orders
Domestic assault arrests often trigger emergency protective orders (EPOs) that bar defendants from their homes or children. EPOs typically expire at 11:59 p.m. on the third day after issuance or the next day court is in session.
Courts can then issue preliminary protective orders lasting up to 15 days, followed by final protective orders extending up to two years. Violating protective orders creates separate criminal charges with escalating penalties.
Federal Firearm Restrictions
Domestic assault convictions can prohibit firearm possession under federal law when the predicate misdemeanor involves "the use or attempted use of physical force, or the threatened use of a deadly weapon." Many of these convictions qualify, though convictions based purely on words without a force element would not trigger federal gun restrictions.
Collateral Consequences
Immigration issues, professional licenses, and child custody can be impacted even without a conviction. Background checks reveal arrests and charges, affecting employment opportunities and housing applications.
Possible Defense Options and Legal Strategies
Several defense approaches can be effective in no-injury domestic assault cases in Virginia. The best strategy depends on specific facts and evidence.
Challenge the Overt Act Requirement
Successful defenses often focus on whether threatening words were accompanied by conduct creating genuine fear. For example, if Jennifer tells her ex-husband David, "Sometimes I could just strangle you" during an argument about parenting without threatening gestures, her words alone cannot support assault charges under Virginia law.
Claim Self-Defense Under Threat
Virginia recognizes the right to defend yourself or family members from threatened harm. If evidence shows you acted in response to threatened violence, this could provide a complete defense. The key is demonstrating that your actions were reasonable and proportionate to the perceived threat.
Consider the First Offender Program
Virginia offers a deferred disposition program for first-time offenders. Successful completion through counseling and probation can lead to dismissal. Dismissals under this section are not considered convictions for most purposes, but they do count for applying the statute again in the future. These dismissals are also not eligible for expungement.