Domestic Violence: Rights and Possible Consequences Regarding the Alleged Abuser

What is domestic violence and domestic abuse?

Domestic violence and abuse can happen to anyone: men, women, and children. The military distinguishes between "domestic abuse" and "domestic violence." In both cases, the relationship between the alleged abuser and victim must be one of "intimate partner."


"Intimate Partner" means:

  • A spouse or ex-spouse,
  • People who have a child together, or
  • People who have lived together as though they were married.
     

"Domestic abuse" involves:

  • Emotional/psychological abuse,
  • Economic control, or
  • Interference with personal liberty.
     

"Domestic violence" involves:

  • The use,
  • attempted use, or
  • threatened use of force.
  • How it is legally defined depends upon state law.


For more information, see the Department of Defense FAQ section
 

If the alleged abuser is in the military and accused of abusing a family member

If the alleged abuser is accused of abusing their spouse, ex-spouse, person they live(d) with as a spouse, person they have a child with, or a child they live with, they may be served with a protection order.
 

There are two types of protection orders:

  • A military protection order and
  • A civil protection order.


**The information here will talk about civil protection orders only.** These are cases brought in a civilian court by a family or household member who is asking for a restraining order against the alleged abuser.
 

PLEASE NOTE: A civil protection order may affect military duties.

 

If the alleged abuser is served with paperwork to go to civilian court

If the alleged abuser is served with paperwork for a restraining order in a civilian court, the paperwork will include:

  • The complaint against the alleged abuser,
  • The court name and location, and
  • A date and time for a hearing
     

There may also be a temporary order prohibiting the alleged abuser from having contact with the person who is asking for a final order.

Temporary orders can be issued by a court before the alleged abuser has any notice that their family member is asking for an order against them. Even though the alleged abuser was not notified before the temporary order was issued, they must follow it.
 

Before the Court can issue a final order against the alleged abuser, they will have the chance to defend themself in Court. Remember, the paperwork the alleged abuser is served with will give them the date, time and location of the final hearing.
 

PLEASE NOTE: If the alleged abuser is served with protection order papers while they are on active duty, and their military service interferes with their ability to appear and defend the case in the time provided, they can request a postponement of at least 90 days under the Servicemembers Civil Relief Act (SCRA).
 

If the alleged abuser is served with protection order papers and their military service *does not* interfere with them appearing in the case, they must go to court. If they do not go to court, a "default judgment" might issue against them. This means the victim would win their case because the alleged perpetrator did not show up when they were ordered to by the court. The provisions of the SCRA regarding default judgments will not apply.
 

If alleged abuser go to Court, the alleged abuser and victim can either:

  • reach an agreement or
  • have a hearing.
     

The alleged abuser will not be appointed a JAG attorney. If they want an attorney to represent them, they will have to hire one.
 

The hearing will look like this:

  • The person bringing the case against alleged abuser will go first.
  • The alleged abuser have a right to cross-examine (ask questions to) all of the victim's witnesses.
  • The alleged abuser will be given the opportunity to tell their side of the story.
  • They have the right to bring their own witnesses to testify in addition to testifying themself.
  • The Judge will then decide if the alleged abuser abused the person asking for an order.
     
    • If the Judge finds that alleged abuser did not abuse the person asking for the Order, the case will be dismissed, and no order will issue.
    • If the Judge finds the alleged abuser did commit abuse, the Judge will issue an Order and will decide what the terms of the Order will be.
       
      • In addition to prohibiting contact between the alleged abuser and the victim, the Order may address:
        • Mutual children,
        • Child and spousal support,
        • Housing, and
        • Possessions.
           
      • What can be included in an order will depend on the state law where the case is heard. A protection order may impact the alleged abuser's right to possess firearms. Read more below to learn more.

         

Will I be charged with a crime?

That depends on the state law and how it defines crimes, like assault. In a civil protection order, the victim is bringing the case against the alleged abuser. In a criminal case, the State is bringing a case against them. In a criminal case, the District Attorney's Office will represent the State.
 

Because the people bringing the cases are different in a civil case versus a criminal case, the alleged abuser can have a civil protection order issued against them even if there are never any criminal charges. They can also be charged with a crime and brought to court by the State even if the victim never brings a civil protection order case against them.
 

There are serious consequences for the alleged abuser if they are convicted in a criminal case of a "misdemeanor crime of domestic violence."
 

If a civil protection order is in place, there are penalties for violating it. What those penalties are will depend upon how the alleged abuser violated it and the laws of the State. They may be charged with a crime if state law allows for that.

 

What is a "Misdemeanor Crime of Domestic Violence?"

The state's definition of a "misdemeanor crime of domestic violence" must include:

  • The use of or attempted use of physical force or
  • Threatened use of a deadly weapon.
     

The relationship between the alleged abuser and the victim does not have to be included in the state definition of the crime, but the alleged abuser must be:

  • A current or former spouse,
  • A parent or guardian of the victim,
  • A person with whom the victim shares a child in common,
  • A person who is cohabiting (living) with or has cohabited (lived) with the victim as a spouse, parent, or guardian, or
  • A person similarly situated to a spouse, parent, or guardian of the victim.
     

The name of the crime the alleged abuser is convicted of does not have to have "domestic violence" in its title. This definition includes all misdemeanors that involve the use or attempted use of physical force (e.g., simple assault, assault and battery). A conviction is not just after a hearing before a judge or jury where the alleged abuser is found "guilty;" it also includes a guilty plea.

 

Will my service be affected?

Discharge:
Having a civil protection order issued by a civil court against the alleged abuser is not grounds for military discharge. Also, a criminal conviction for violating a protection order is not grounds for discharge. But, if the alleged abuser is convicted of a "misdemeanor crime of domestic violence," it may impact the length of their service and ability to re-enlist. Discretion rests with their commanding officer.

 

Firearms and Civil Protection Orders:
The alleged abuser might not be able to legally possess a firearm and/or ammunition if there is a civil restraining order against them. It will depend upon the relationship between them and the victim and the terms of the order.
 

It is important to know that there is a federal law that says a protection order that is issued by a civilian court in one state (or tribal court) is enforceable in another state or tribe. This means a civil protection order issued in a state that is different from the state in which the alleged abuser lives is still effective against them.
 

The Federal Gun Control Act of 1968 is a law that prohibits certain persons from possessing a firearm and/or ammunition. Possession means in the alleged abuser's control or where they have access to it. Examples include storing a firearm in their car, home, friend's house, etc. Some of the categories of people who cannot possess a firearm and/or ammunition include a person who:

  • Has a court order, like a protection from abuse order, against them that they were notified of and had a chance to participate in a court hearing, and:
    • the court found that the alleged abuser is a credible threat to physical safety of their intimate partner or child, or
    • the Order explicitly prohibits the use, attempted use or threatened use of force against an intimate partner or child that would reasonably be expected to cause bodily injury, or
    • the Order restrains such person from harassing, stalking, or threatening an intimate partner or child of an intimate partner or person, or engaging her conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child.
  • An intimate partner is a spouse, ex-spouse, person who the alleged abuser had a child with or someone the alleged abuser lived with as if they were married.
     

The alleged abuser is prohibited from possessing a firearm or ammunition for the period of the restraining order. Once the Order expires, the prohibition is lifted. However, there are exceptions during the term of the Order. If the alleged abuser needs a firearm or ammunition for their military service, they can possess them in the course of their official duties. But, the alleged abuser can only possess them at work.
 

Even though this exception exists under the Federal Gun Control Act of 1968, there are two situations where it may not apply:

  • If the Order specifically states the alleged abuser cannot possess a firearm. This is because that prohibition is under state law, and the federal exceptions do not apply to state law.
     
  • The alleged abuser's commanding officer can decide that they cannot possess a firearm or ammunition.
    • If their commanding officer makes this decision, it is not grounds for discharge.
    • If the alleged abuser violates the command, they can be disciplined. They can face non-judicial punishment, such as an Article 15.
       
      • Punishment under Article 15 is not a conviction. It can include punitive action such as a demotion in rank, loss of pay and extra work assignments.
         

A written reprimand can be placed in the alleged abuser's service record. They can also face discipline under the Uniform Code of Military Justice (UCMJ), which does involve a judicial process. There will be a military investigation. The alleged abuser will be appointed a JAG attorney. And, if they are found guilty, possible sanctions include a court martial resulting in incarceration, forfeiture of pay, or dismissal/discharge from the military.

 

Firearms and a Conviction of a Misdemeanor Crime of Domestic Violence:

If the alleged abuser is convicted of a misdemeanor crime of domestic violence, the Federal Gun Control Act of 1968 prohibits them from possessing a firearm or ammunition. Again, possession means in their control or where they have access to it. Examples include storing a firearm in their car, home, friend's house, etc. The federal prohibition is for life. There are no exceptions for work or any other reason.
 

Servicemembers having a "misdemeanor crime of domestic violence" conviction may not be administratively discharged solely on that basis. However, this does not preclude a commanding officer from considering the underlying acts of domestic violence, or civilian convictions, as an appropriate basis for administrative discharge.
 

For more information about firearms and convictions click here.
 


Other prohibitions:

The Federal Gun Control Act of 1968 also places a lifetime ban on possessing a firearm and/or ammunition for those persons who:

  • have been discharged from the Armed Forced under dishonorable conditions,
  • have been indicted for or convicted of a felony, which is a crime that is punishable by imprisonment for more than one year. It does not matter if the actual sentence you received is for less than one year.
     

There are other categories that are not discussed here.

 

The Federal Gun Control Act Does Not Apply:

  • To major military weapons systems or "crew served" military weapons such as tanks, missiles or aircrafts, or
  • The alleged abuser has the misdemeanor conviction expunged, set aside or pardoned, or if they have their civil rights restored, unless the terms of the expungement, pardon or restoration of their civil rights expressly prohibits them from possessing firearms or ammunition.

     

Violating the Firearm Prohibition

If the alleged abuser violates the Federal Gun Control Act of 1968, they may be charged by the U.S. Attorney. Punishments may include a fine, up to 10 years in prison, or both.
 

 

Where can I get help?

The military has a Family Advocacy Program that works with both victims and abusers.
Except for the military chaplain, what you talk to military personnel about regarding domestic abuse will not be kept confidential. For more information about the Family Advocacy Program, click here.

 

 

Updated: April 2020


Source URL: https://statesidelegal.org/domestic-violence-alleged-abuser