Before giving examples of reported decisions wherein domestic violence was found to exist that may be surprising, it is helpful to know just how domestic violence is defined, which is under two Penal Code sections, 273.5(a) and (b), as well as 243(e).
Penal Code § 273.5(a) and (b) set forth the elements of the crime of inflicting corporal injury on a spouse, cohabitant or co-parent:
It should be noted that 273.5(a) is a general intent crime, not a specific intent crime. People v. Thurston (1999) 71 Cal. App. 4th 1050, 1055, 84 Cal. Rptr. 2d 221. The suspect need only have the purpose or willingness to commit the act (not intend the injury). People v. Campbell (1999) 76 Cal. App. 4th 305, 308, 90 Cal. Rptr. 2d 315.
Penal Code § 243(e) prohibits the commission of a battery against a spouse, former spouse, cohabitant, co-parent, fiancé, fiancée, or a person with whom the defendant has, or previously had, a dating or engagement relationship.
Long Beach CourthouseA person will usually be charged under 243(e) if the touching or contact with the victim does not result in physical injury. If physical injury occurs, the defendant can generally be charged under Penal Code § 273.5. Penal Code § 243(e)(1) is a lesser-included offense of Penal Code § 273.5. People v. Jackson (2000) 77 Cal. App. 4th 574, 580, 91 Cal. Rptr. 2d 805.
The above statutes address who may be charged, based on a relationship with the victim, but the nature of the injury also matters. What is a sufficient injury? For example, in People v. Beasley (2003) 105 Cal. App. 4th 1078, 1085-1086, 130 Cal. Rptr. 2d 717, the court found sufficient injury under 273.5 when defendant struck the victim with a rod used to open window blinds, resulting in bruising. Soreness and tenderness, however, without evidence of actual injury, is insufficient. Nor is emotional distress sufficient, without a physical injury. People v. Abrego (1993) 21 Cal. App. 4th 133, 136 – 138.
In Abrego, defendant slapped or punched the victim five times in the face and head. The victim reported soreness and tenderness to the investigating officer. At trial, however, she testified that she had been drunk when struck and had felt no pain, that she had not been injured or bruised, and that she did not seek medical treatment. The judge concluded that there was no evidence of physical injury and reduced the conviction to the lesser-included offense of battery (Penal Code § 242). Abrego, supra, 21 Cal. App. 4th at 138.
It is important to appreciate that the types of injury associated with a crime are usually greater than those a civil court will recognize in a civil restraining order to prevent domestic violence. In the civil restraining order context, “domestic violence” is defined must more broadly as “abuse committed against an adult or a minor who is a spouse, former spouse, cohabitant, former cohabitant, former cohabitant, or person with whom the suspect has had a child or is having or have had a dating or engagement relationship.” Penal Code § 13700(b) (Family Code § 6211 defines list of possible victims).
“Abuse” is defined as intentionally or recklessly causing or attempting to cause bodily injury or placing another person in reasonable apprehension of imminent serious bodily injury to himself, herself or to another. Penal Code § 13700(a)
Abuse that qualifies as domestic violence in civil court is less serious than in a criminal court. For example, “disturbing the peace of the other party” under Family Code § 6320 has been defined as conduct that “destroys the mental and emotional calm of a party.” Marriage of Nadkarni (2009) 173 Cal. App. 4th 1483, 1497 – 1499; 93 Cal. Rptr. 3d 723 (accessing, reading, disseminating ex-wife’s primate e-mails); see also Evilsizor v. Sweeny (2015) 237 Cal. App.4th 1416, 189 Cal. Rptr. 3d 1 (releasing and threatening to release personal date downloaded from wife’s cell phone); Altafulla v. Ervin (2015) 238 Cal. App. 4th 571, 189 Cal. Rptr. 3d 316 (disclosing and threatening to disclose someone’s personal details); Marriage of Schu (II) (2016) 6 Cal. App. 5th 470, 211 Cal. Rptr. 3d 413 (mom disturbed the peace of children by having sexual relations with child’s friend since age 12).
Despite such seemingly wide latitude in interpreting abuse, see Fischer v. Fischer (2018) 22 Cal. App. 5th 612, 231 Cal. Rptr. 3d 621 (finding no abuse where wife slapped and scratched neck of husband, read and disclosed husband’s text messages to wife’s friends, grappled husband’s phone away from him, and pushed husband when wife discovered husband’s ongoing affair).
For more information about domestic violence in general, please click on the following articles: