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A domestic battery charge under Penal Code section 243(e)(1), is similar to that of a simple battery charge, with the alleged victim being the defendant’s intimate partner or cohabitant.  In order for domestic battery Penal Code section 243(e)(1) to apply, the alleged victim and alleged defendant must be in or must have been in some sort of intimate or romantic relationship prior to the incident, or they must be current or former cohabitants within the residence. Domestic battery is a situation in which someone harmfully or offensively touched someone else in a willful and unlawful manner. As in simple battery, there is no requirement that injury be present as a result of the touching.

Here are all of the elements for Penal Code section 243(e)(1) domestic battery that must be proved by the prosecution beyond a reasonable doubt in order for there to be a conviction:

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Elements of Domestic Battery

  1. The person has to have harmfully or offensively touched another person,
  1. The force was willful and unlawful, and
  1. The person that was touched was a current or former intimate partner

Touching – What Penal Code section 243(e)(1) means by touching is directly making contact with an intimate partner or cohabitant, such as by punching or kicking them, as well as indirect contact.   This means that causing another person to commit the touching on an intimate partner or even causing an object to touch is sufficient.   

Harmful or Offensive Penal Code section 243(e)(1) merely requires that there be physical contact.  There does not have to be an injury! This means that if someone touches an intimate partner or cohabitant by painting something on an article of clothing that he or she is wearing, this can be a domestic battery because the touching was offensive. 

Another example of touching in an offensive manner is spitting.  While spitting does not necessary rise to the level of a harmful touching, it definitely qualifies as an offensive or invasive touching necessary for domestic battery because it is rude and disrespectful to spit. 

A further manner in which there could be a harmful or offensive touching in California is if you use offensive touch to something that is connected to the person.  If, for example, an intimate partner or cohabitant is leaning on a stick, and you push the stick from underneath them without actually touching a part of their body, this could be grounds for a domestic battery.  

Willfully - Willfully means that the person did the act intentionally or on purpose.  Even if you didn’t mean to break the law or cause an injury to an intimate partner or cohabitant, as long as you purposely committed the act you can be convicted of domestic battery. If Bob got into an argument with his wife Jessica and became frustrated and threw his cellphone against a wall but it struck Jessica instead, this was a willful act.  He didn’t mean to strike his wife, but he did mean to throw the object.

Intimate Partner - The person against whom you allegedly committed a battery must be someone you are or were engaged in an intimate relationship with. This could a husband or a wife (spouse), a person you are engaged to (fiancé), the parent of your child, someone you are currently dating or previously dated, or someone who you are living with (cohabitant). The term dating means frequent, intimate associations with someone that are primarily characterized by the expectation of affection or sexual involvement rather than financial considerations.

Under Penal Code section 243(e)(1), cohabitants refer to two unrelated persons living together for a substantial period of time, resulting in some permanency of the relationship. Factors that may determine whether people are cohabitating include, but are not limited to, sexual relations while sharing the same residence, sharing of income or expenses, joint use or ownership of property, the parties holding themselves out as husband and wife or domestic partners, the continuity of the relationship and the length of the relationship.  Be aware that a person can cohabit simultaneously with two or more people at different locations during the same time frame if he or she maintains substantial relationships with each person and lives with each for significant periods.

Here is a domestic battery example: Rudy is renting a room from Daisy and the two begin dating shortly thereafter. One night the two of them get into a heated discussion about rent payment and Rudy becomes extremely upset.  Rudy pushes Daisy and knocks her into a wall. This situation qualifies as a violation of domestic battery under Penal Code section 243 (e)(1) because Rudy and Daisy were cohabitants and were involved in a romantic relationship. Rudy willfully and unlawfully touched Daisy in a harmful manner by pushing her. Even if Daisy had suffered no injuries as a result of Rudy’s harmful touching, it would still be considered a domestic battery because injury is not required in order to be convicted of a violation of Penal Code section 243(e)(1).

Penalties for Domestic Battery

Domestic battery is charged as a misdemeanor and carries penalties of informal probation and/or a maximum of one year in county jail and a maximum fine of $2,000.  Oftentimes the judge will suspend the sentence and grant probation together with the requirement that you complete a minimum of a 52 weeks batterer’s program. The judge can also order you to cover all of the victim’s costs incurred as a result of the crime, as well as pay a hefty fine to a battered women’s shelter.  If you are convicted of Penal Code section 243(e)(1) for a second time or more, the judge will likely order you to spend a minimum of 48 hours in jail.

The crime of domestic battery carries further penalties for anyone who is dealing with immigration issues.  Under federal law, the crime of domestic violence is one for which you can be deported if you are convicted.  It is crucial you consult with an attorney such as Leah Naparstek of the Criminal Law Office of Leah Legal, who is experienced in both criminal defense and immigration consequences, before pleading guilty to a charge of domestic violence.


Defenses for Domestic Battery

No one wants to be charged with a crime such as domestic battery - much less be convicted! Having a conviction on your record can cause significant ramifications for you that go far deeper than the actual penalties and fines. The Criminal Defense Law Office of Leah Legal will work hard on your behalf.  Attorney Leah Naparstek is an experienced criminal defense attorney who deals with California domestic battery cases on a regular basis. She will examine your case in its entirety and build a defense based on your specific circumstances.

Self Defense/Defense of Others - One of the most common defenses is self defense or defense of others. This defense can be asserted when you reasonably believed that you or someone else was in immediate danger of being touched unlawfully or suffering an injury, and you reasonably believed that you needed to use immediate force on an intimate partner or cohabitant to defend yourself or someone else from harm.  Please note that you cannot have used more force than necessary in defense. If Donna offensively pushes Sam’s arm, Sam’s pushing her away in return could be accepted as reasonable self-defense, while punching her in the face would probably not be. 

Lack of Willfulness Since one of the elements needed to prove domestic battery is that the touching was done on purpose, a defense would be to show that the act happened accidentally. Gretchen is at a party with her boyfriend Noah. Gretchen befriends another guy that she just met that night and is having a conversation with him. She is laughing and having a good time when her boyfriend Noah comes over. Noah trips and falls and grabs Gretchen for balance. Instead of steadying himself he pulls her down with him. This does not rise to the level of domestic battery because the harmful touching of Gretchen was accidental.

Being Falsely Accused False accusations of domestic violence often result when people in intimate or dating relationships get into arguments that spiral out of control because of anger, jealousy, vindictiveness and the desire for revenge. If this is the case, it can be very difficult to prove that in reality you were not guilty of committing the crime.  Gretchen throws a party with her boyfriend Noah at their house. Gretchen befriends another man and is having a conversation with him. She is laughing and having a good time when her boyfriend Noah notices and gets upset. He is insanely jealous so he scratches himself on the cheek and calls the police once everyone leaves and tells them that Gretchen assaulted him in a drunken rage. The police examine Noah’s face and upon seeing the scratch they arrest her for domestic battery.  

In the event you were falsely accused, you need a tough advocate such as Leah Legal at your side to help question witnesses and gather the evidence necessary to prove your innocence.