How an Ordinary Offense is Classified as a Crime of Domestic Violence

If one opens up the New York Penal Law or New Jersey Code of Criminal Justice, one will not find a listing of domestic violence offenses. In fact, domestic violence crimes do not have their own statutes. Instead, the elements of the underlying crime remain the same and the crime is elevated to a domestic violence offense only when the victim falls into a certain class of persons. The classification is not assigned based on any intent or specific act or threat but is instead guided by the relationship between the suspect and alleged victim. For instance, one commits assault if he or she intends to, and thereby causes physical injury to another person. If the victim is one’s spouse, then the prosecutor will prosecute the assault as a crime of domestic violence. Both New York and New Jersey law approach domestic violence crimes in this manner and understanding this classification will serve to better inform one who has been arrested as to whether the crime charged will be prosecuted as a crime of domestic violence.

The New York legislature, in both NY CPL § 530.11 and CLS Family Ct Act § 812, defines domestic violence as certain offenses occurring between spouses or former spouses, parent and child or between members of the same family or household. In defining the term "members of the same family or household", New York includes:

• Persons related by consanguinity (blood-related) or affinity (through marriage, i.e. in-laws); 
  
• 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 or have been in an intimate relationship regardless of whether such persons have lived together at any time. Courts consider the following factors in determining whether a relationship is an "intimate relationship":  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. New York has explicitly noted that neither a casual acquaintance nor ordinary fraternization between two individuals in business or social contexts shall be deemed to constitute an "intimate relationship".
  

The New Jersey legislature, in N.J.S.A. § 2C:25-19(d), similarly defines a domestic violence offense by looking at the relation of the offender to the victim. New Jersey considers a person to be a victim of domestic violence when any person who is 18 years of age or older or who is an emancipated minor has been subjected to domestic violence by either:

•  A spouse or former spouse;
  
• Any person who is a present or former household member. 
  
• A person with whom the victim has a child in common, or with whom the victim anticipates having a child in common, if one of the parties is pregnant; or
  
• A person with whom the victim has had a dating relationship.
  

If you, or anyone you know is suspected, charged or has been arrested for committing an offense against a person who might be classified as a victim of domestic violence, contact our office today to set up a free consultation and talk to a criminal defense attorney. The suspect’s relationship to the victim can characterize the offense as domestic violence and bring into play additional possible penalties and sentences.