Definition of Domestic Violence in Oklahoma
Oklahoma refers to domestic violence as domestic abuse. It’s also sometimes called domestic assault & battery (A&B). Domestic violence in Oklahoma is defined as any act of physical harm, or the threat of imminent physical harm, that is committed by an adult, emancipated minor, or child 13 years old or older against another adult, emancipated minor, or minor child who is currently or was previously an intimate partner or family or household member.You commit an act of domestic violence in Oklahoma if you commit an assault and battery against a current or former:
- intimate partner or
- family or household member
An assault is the willful and unlawful attempt or offer with force, coercion, or violence to do corporal harm to another. Battery is any willful and unlawful use of force or violence upon the person of another.
“Intimate partner” means:
- current or former spouses,
- people who are or were in a dating relationship,
- people who are the biological parents of the same child, regardless of their marital status or whether they have lived together at any time, and
- people who currently or formerly lived together in an intimate way, primarily characterized by affectionate or sexual involvement. A sexual relationship may be an indicator that a person is an intimate partner, but is never a necessary condition.
“Family or household members” are:
- parents, including grandparents, stepparents, adoptive parents and foster parents,
- children, including grandchildren, stepchildren, adopted children, and foster children, and
- people otherwise related by blood or marriage living in the same household.
Punishment for Domestic Violence in Oklahoma
Domestic abuse charges can be misdemeanors or felonies. Whether it’s a misdemeanor or a felony depends on how many times someone has violated the statute and the presence of any aggravating factors. Aggravating circumstances can make a first-time offense a felony, and they can increase the severity of the punishment for a second or subsequent offense.
A first-time domestic abuse case that does not have any aggravating factors will generally be charged as a misdemeanor. The maximum punishment in jail is one year. The maximum fine is $5,000.
A second or subsequent instance of domestic abuse is a felony. Punishment can be up to four years in the Department of Corrections. The maximum fine is $5,000.
Prior Pattern of Domestic Abuse
There is no requirement that the instances of domestic violence happen within any time period. This is considered a “prior pattern of physical abuse.” A prior pattern of physical abuse is two or more separate incidences, including the current incident, occurring on different days and each incident relating to an act constituting assault and battery or domestic abuse committed by the defendant against a current or former spouse, a present spouse of a former spouse, parents, a foster parent, a child, a person otherwise related by blood or marriage, a person with whom the defendant is in a dating relationship, an individual with whom the defendant has had a child, a person who formerly lived in the same household as the defendant, a person living in the same household as the defendant, a current intimate partner or former intimate partner, or any combination of such persons.
Proof of each incident prior to the present incident is established merely by the sworn testimony of a third party who was a witness to the alleged physical abuse or by other admissible direct evidence that is independent of the testimony of the victim. It’s important to note that the requirement to charge a second “incident” as a felony does not require a previous conviction of domestic abuse or even a prior guilty plea to that crime. However, a guilty plea under any circumstances would certainly also constitute proof of a prior incident. During trial, a prosecutor cannot introduce previous instances of domestic violence to prove that the defendant committed an act of domestic violence this time. If that evidence is introduced, then it must be for a different reason.
Domestic Abuse Committed In The Presence Of A Child
Domestic abuse committed in the presence of a child is a misdemeanor for the first offense. The range of punishment is six months to one year in the county jail. The maximum fine is $5,000.
A second or a subsequent offense of domestic abuse in the presence of a child is a felony. The range of punishment is one to five years in the Department of Corrections. The maximum fine is $7,000.
Domestic Abuse Committed Against A Pregnant Woman
Domestic abuse committed against a pregnant woman with knowledge of the pregnancy is a misdemeanor for the first offense. The second or subsequent offense of domestic abuse against a pregnant woman with knowledge of the pregnancy is a felony and carries up to ten years in the Department of Corrections. Domestic abuse committed against a pregnant woman with knowledge of the pregnancy where a miscarriage or injury occurs to the unborn child carries a minimum of 20 years in the Department of Corrections.
Domestic Abuse Resulting In Great Bodily Injury
Domestic abuse resulting in great bodily injury is a felony that carries a punishment of up to ten years in the Department of Corrections. Great bodily injury means bone fracture, protracted and obvious disfigurement, protracted loss or impairment of the function of a body part, organ or mental faculty, or substantial risk of death.
Domestic Abuse By Strangulation
Domestic abuse committed with the intent to cause great bodily harm by strangulation or attempted strangulation is a felony. The punishment range is one to three years in the Department of Corrections. The maximum fine is $3,000. For a second or subsequent conviction of domestic abuse by strangulation or attempted strangulation, the punishment range is three to ten years in the Department of Corrections with a maximum fine of $20,000. Strangulation means any form of asphyxia; including, but not limited to, asphyxia characterized by closure of the blood vessels or air passages of the neck as a result of external pressure on the neck or the closure of the nostrils or mouth as a result of external pressure on the head.
What if the Alleged Victim Changes Their Mind?
Victims sometimes change their mind after some time and do not want charges to be pressed on the alleged abuser. Prosecutors generally have a “no dismiss” policy for domestic violence cases. That means they will not dismiss a case of domestic violence even if the victim tells them that they do not want the defendant to be prosecuted. However, the prosecutor will sometimes dismiss a domestic violence case despite a “no dismiss” policy.
There are situations that would make it more or less likely that a prosecutor would dismiss a case. For instance, the least likely situation in which a prosecutor would dismiss a case based only upon the victim’s request is where a male defendant and a female victim are in a relationship. This is the typical domestic violence scenario. The thought is that the male abuser is threatening the female victim with more abuse if she doesn’t ask for the charges to be dropped.
A way that charges can get dismissed is when the victim does not show up to testify in court. This happens because the victim is typically the primary witness, and the state needs evidence to be able to convict somebody. If there is no evidence, then the trial or hearing typically cannot be conducted. If the prosecutor continues with the hearing or trial without the victim, then the chances of a conviction typically decrease. However, expecting a dismissal because you think the victim won’t show is a risky strategy. First, the witness could show. Second, the trial or hearing could still continue because there is other evidence proving domestic abuse that can be brought in. Prosecutors frequently continue with the trial or hearing despite the victim not showing up. They do this by getting around hearsay and the confrontation clause. For example, if a victim talks to a doctor for the purpose of seeking medical care for the injuries they sustain from the domestic violence situation, then what they told the doctor can be admissible even though the victim does not show up. Another way a victim’s statement can be entered into evidence without the victim having to appear in court is through a 911 call. That can be considered an excited utterance, which is an exception to hearsay. For example, if the victim yells on the phone as soon as the 911 operator picks up, “Help, my boyfriend just hit me in the face!”, that could be considered an excited utterance, and it would likely be entered into evidence without the presence of a victim. Prosecutors will try to get around the Confrontation Clause by arguing that a statement is non-testimonial.
Finally, there could be witnesses to the abuse besides the victim who could testify. It is important that you don’t prevent the victim from showing up at court or encourage them to not testify. That could be considered witness tampering or obstruction of justice, which are crimes. If a witness receives a subpoena to testify in court, they are required to obey the subpoena. Failure to comply with a subpoena could result in being held in contempt of court. Per 22 O.S. § 720, law enforcement may detain someone whom they have probable cause to believe is a necessary and material witness to a felony if the officer has probable cause to believe that person will refuse to appear in court. However, no person may be detained as a material witness to a crime who is a victim of such crime.
Will Someone Get Arrested If The Police Are Called To A Domestic Violence Scene?
Someone will typically get arrested if the police are called to a domestic violence scene. It’s even possible for the person calling the police to get arrested. People think that calling the police will help defuse the situation. It’s logical that many people are not familiar with the responsibility of law enforcement and the prosecutor in domestic violence situation. While it’s possible that the police can just defuse the situation and nobody will get arrested, that is highly unlikely. Officers are encouraged to arrest someone when a domestic abuse situation is reported.
According to 22 O.S. § 60.16, a law enforcement officer may make a warrantless arrest if the officer has probable cause to believe the person has committed an act of domestic abuse within the preceding 72 hours—even if the assault did not take place in the presence of the officer. An officer may not arrest someone without first observing a recent physical injury to, or an impairment of the physical condition of, the alleged victim. The first event after a domestic abuse arrest is a trip to jail. The arrestee will be booked, processed, fingerprinted, and photographed. Their bail will initially be set, and they will be afforded the opportunity to call someone for help.
Making Bail After a Domestic Violence Arrest
If you’re arrested for domestic abuse, a bail amount will eventually be set. Whether you are arrested or not, your bond will be initially set at “no bond.” The law requires that individuals arrested for domestic violence crimes see a judge before bail is set. You will find out the exact bond amount when you go in front of the judge for arraignment. There is a 72-hour “cool down” period after someone is arrested for a domestic abuse charges. That means that the arrestee will typically not be released from jail until 72 hours has passed from the time of arrest.
Contact With the Victim After a Domestic Violence Arrest
You will not necessarily be prevented from having contact with your spouse or children after a domestic abuse case. A domestic abuse charge, by itself, does not carry any requirement that the accused not contact the complaining witness (aka the “victim”). However, what happens many times in a domestic abuse situation is that the victim will file a Victim Protective Order (VPO). A VPO is what’s used to prevent someone from contacting the victim. If you have a VPO on you, then you need to read the order thoroughly and obey every word of it. Violation of the VPO is a crime.
A judge may issue a no contact order with the alleged victim. A violation of that order constitutes contempt of court and a violation of your conditions of bond. If the judge finds out about it, your bond will likely be revoked and you’ll be put back in jail.
Something else that can happen is that the Department of Human Services (DHS) can get involved if there was an injury to a child. Domestic abuse can also occur when the victim is a child. If DHS finds out about the abuse, then they may initiate deprived child proceedings. The child could be removed from home due to the violence committed by an individual living in the home and/or a failure to protect by the other parent/relative/other individual living in the household.
Defending Domestic Violence Charges
Domestic abuse cases can have serious consequences that many people don’t realize. The biggest one is the impact on the individual’s ability to carry a firearm. A federal law, known as the Lautenberg Amendment, makes it a felony for anyone who is involved in a crime of domestic violence to ship, transport, or receive firearms. This is a federal crime. The bottom line is that the federal government feels that people who have misdemeanor convictions of domestic assault should not possess firearms. The reason the Lautenberg Amendment only applies to misdemeanors is because it’s a crime to possess a firearm after any felony conviction.
The federal government considers any guilty plea—even to a deferred sentence—a conviction for purposes of the Lautenberg Amendment. If you don’t want to give up your firearms for good, then it’s crucial that you don’t get an actual conviction on your record. The period that you can’t own a firearm during a deferred sentence is the period of probation. So, once you plead guilty to a deferred sentence, you will no longer legally be able to possess a firearm. You’ll once again be able to carry a firearm once your deferred sentence is over, the case is dismissed, and it’s been expunged.
The lack of ability to possess a firearm can have severe consequences for members of the military. A serviceman can lose his or her job if they plead to even a deferred sentence. This is because every member of the military will have to use a firearm at some point in their career. A commander will not violate federal law, so it is easier to discharge someone who pleads to a job-limiting crime such as domestic abuse.
Furthermore, domestic abuse charges carry a negative stigma that other misdemeanors do not carry. Society views an assault and battery against someone with whom the perpetrator is in a relationship as worse than an assault and battery against an unknown person. Most people do not know that Oklahoma’s domestic abuse laws are very broad and cover much more than a spousal battery. And when people hear “domestic violence,” an image of a much stronger man wailing on a defenseless woman typically comes to mind. Therefore, it is important to have an attorney who understands the harsh implications of a domestic abuse charge. I am constantly trying to resolve my clients’ cases in a way that will have the least negative impact on their lives.
Domestic Abuse Counseling Options Available in Oklahoma
Defendants can take some steps to get a head start on probation requirements and potentially improve the plea deal. These include classes and counseling.
Batterer’s Intervention Program (BIP)
A mandatory condition of a suspended sentence or probation for domestic abuse crimes is that the defendant participates in counseling or undergo treatment for domestic abuse by a counselor. This program is known as the Batterer’s Intervention Program (BIP). It’s a 52-week course with one session per week. The cost is generally $20 a session. Three unexcused absences in succession or seven unexcused absences in a 52-week period is considered a violation of conditions of probation. If you have too many absences, then you will be kicked out of the class and have to start all over. Failure to attend the classes could result in a conviction, jail, or prison.
In addition to BIP, some counties require that prior to attending BIP, the defendant must undergo either a mental health evaluation or a domestic violence inventory. These evaluations can range from $150 to $250. I get my clients who are charged with domestic abuse into BIP as soon as possible. I provide them a list of locations that offer BIP and the various evaluations.
Pre-Trial Classes
Completing classes while a case is pending does a couple of things. First, it can often improve the plea recommendation from the prosecutor. We can usually decrease the number of years of incarceration or probation and/or bring it down from a suspended sentence to a deferred sentence. This could be the difference between an automatic conviction and never receiving a conviction. There are also other classes that may be requested by the prosecutor based on the actual situation. An example of this is anger management classes.
There is a misconception that doing classes or going to counseling prior to pleading demonstrates the defendant’s guilt. That is absolutely not the case. Most cases end in a negotiated plea. Prosecutors place great value on the classes or counseling a defendant attends. Knocking out some probation requirements prior to a plea almost always improves the plea offer. Sometimes, the facts in a case are so bad that the only way to improve the outcome is to take classes. Delaying or not taking classes will not help a defendant’s case. Getting as many classes and other probation requirements quickly completed impresses prosecutors and demonstrates to them that you are taking your situation seriously. If you want to improve the outcome in your case, then you should start the recommended classes and/or counseling as soon as possible.
Sources: 22 O.S. §§ 60.1, 720, & 60.16 and 21 O.S. §§ 641, 642, 644, 646, & 644.1
Blog post on 2019 changes to Oklahoma’s domestic violence laws
Current as of 2/28/2020. Note: laws are subject to change at any time! Visit the linked statutes for the most accurate law.