Domestic Violence v. Assault: What’s the Difference?

Assault is a misdemeanor criminal offense in the State of Utah. Domestic violenceis not an independent criminal offense but an enhancement to other crimes of violence.

Pursuant to Utah Code Ann. §76-5-102, a person is guilty of assault if he/she uses unlawful force or violence, threatens to use unlawful force or violence or attempts to use unlawful force or violence against another person. Assault is typically a class B misdemeanor. However, assault may be enhanced to a class A misdemeanor if the act of violence causes substantial bodily injury or the alleged victim is pregnant.

Assault may also be enhanced if the offense involved domestic violence. Any crime involving violence, physical harm, threats of violence or conspiracy to commit violence against a cohabitantmay be enhanced as a domestic violence related crime. Utah Code Ann. §77-36-1 provides a list of crimes that can be enhanced, which crimes include assault, as well as the following:

Crimes That Can Be Enhanced for Domestic Violence:

• Aggravated assault;

• Homicide;

• Harassment;

• Electronic communications harassment;

• Kidnapping;

• Mayhem;

• Sexual offenses;

• Stalking;

• Unlawful detention;

• Violation of a protective order;

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Burglary;

• Robbery;

• Criminal Trespass;

• Unlawful discharge of a firearm;

• Disorderly conduct; and

• Child abuse.

Offenders are not charged with domestic violence as an independent crime, but with an enhanced version of one of the above crimes, such as “assault – domestic violence related.” When an offender is charged with a crime of domestic violence, the prosecution has the burden of proving the underlying crime and the additional element of cohabitation.

Proof Necessary to Establish Cohabitation:

• The victim is or was the spouse of the offender;

• The victim is or was living as if he/she was the spouse of the offender;

• The victim and the offender are related by blood or marriage;

• The victim and the offender have children together; or

• The victim and the offender reside in the same residence.

In Utah, assault can be punished with a jail term of up to one year and a fine of up to $2,500.00, plus surcharges, fees and interest. The judge determines an appropriate sentence after considering a variety of factors, including the specific facts of the crime, the offender’s prior criminal history and the impact on the victim. A first time offender charged with class B misdemeanor assault is unlikely to serve a long jail term. Rather than imposing jail time, it is common for the judge to order the offender to complete community service, obtain counseling or enroll in an anger management program. The domestic violence enhancement will not significantly alter the sentence. However, the domestic violence enhancement has the potential to negatively impact the offender’s life through a variety of collateral consequences.

When an offender is convicted of domestic violence-related assault or any crime of domestic violence, the offender will be barred from owning or possessing a firearm. A domestic violence conviction is also grounds for deportation for non-citizens. In addition, domestic violence charges have the potential to separate family members and lead to divorce. When a person is changed with a crime of domestic violence, the court will likely impose a no contact order, restraining the offender from having any contact with the alleged victim. If the alleged offender and victim reside together, the offender will be prohibited from going to his/her home. If the alleged offender and victim have children together, the offender will be separated from the children and will be unable to communicate with the victim to schedule visitation.

If you are facing domestic violence-related assault charges in the state of Utah, it is important to contact an experienced criminal defense attorney. Stacey Schmidt and the attorneys at Schmidt Law Firm have obtained positive results for clients facing domestic violence charges. Contact Schmidt Law Firm at http://sschmidtlaw.wpengine.comfor your free 30 minute legal consultation. Our attorneys will listen to you, advise you on the best course of action and defend the interests of you and your family in court.