Last updated on March 26th, 2019
The Virginia Code defines “domestic violence” as assault and battery against another member of one’s family or household. While that might sound simple, Virginia’s domestic violence laws are more complex than they might appear.
In particular, the state classifies a wide range of crimes as domestic violence, including sexual assault, stalking, and neglect. Understanding these laws is an important step towards protecting yourself from domestic violence.
However, remember that no online article can address your specific situation.
In this article, we’ll cover some general guidelines for dealing with domestic violence in Virginia. If you or a loved one feel that you’re the target of domestic violence, you should seek help immediately.
What is Domestic Violence?
The Virginia Code generally punishes most forms of domestic violence, including family abuse and assault, under the same criminal code section.
In order to convict someone of this crime, the state needs to prove two things:
- That the defendant committed an act of family abuse or assault and battery.
- That the victim was a member of the defendant’s family or household.
While these two requirements may seem simple at first, the Virginia Code cites very specific definitions for each.
Assault and Battery
While the Virginia Code sets penalties for assaulting a family member, it doesn’t directly define the term “assault.” Instead, Virginia relies on the common law definition of assault and battery, defining it specifically as an act of intentional physical harm.
In this way the degree of injury is not necessarily relevant. Rather, the law focuses more on the defendant’s intent to inflict harm.
In cases of domestic violence, this is important because the law requires an intent to commit harm in order for a domestic violence charge to stick. Rolling over in your sleep and accidentally hitting your spouse in the face, for example, isn’t domestic violence under Virginia law.
Common examples of assault and battery, and by extension domestic violence, include punching, striking, and slapping. However, while many domestic violence cases include physical acts of violence, it also includes a broader set of family abuse offenses.
For this reason, while verbal abuse and property destruction don’t fall under the normal assault and battery laws, Virginia’s domestic abuse laws do cover them under the term “family abuse.”
Family Abuse Other than Assault and Battery
In this way, VA Code § 16.1-228 also defines a few other acts as “family abuse.” These include, but are not limited to:
- Forceful detention (in other words, if your spouse physically prevents you from leaving the house).
- Rape and sexual assault.
- Any violent or threatening act which places one in reasonable fear of death, sexual assault, or bodily injury.
Essentially, committing certain crimes against a family or household member will often result in a related domestic violence charge.
Family or Household Member
Remember that in Virginia, a crime only counts as domestic violence if it is committed against a “family or household member.” This is a very specific definition which depends heavily on the victim’s relation to the perpetrator, as well as the status of their living situation.
The Virginia Code generally divides these terms into two categories. One for those who live in a different house from the perpetrator, and one for those who are living with them. Individuals who count as “family or household members” who can live in a different house from the perpetrator include:
- Spouses and former spouses.
- Parents, grandparents, children, grandchildren, adopted children, siblings, and half-siblings.
- Individuals who share a child with the individual, whether or not they’ve been married or resided together at any time.
Meanwhile, those who must live in the same house as the individual in order to count as family or household members include:
- Mothers-in-law, fathers-in-law, sons-in-law, daughters-in-law, brothers-in-law, and sisters-in-law.
- “Cohabiting” individuals, and those who have cohabited with the individual in the last 12 months. Note that Virginia law defines “cohabitation” in a very specific way, which might include, but does not require, a sexual relationship. Think of it as being more than mere roommates, but still not quite at the level of being married or having intercourse.
- Children of either party who have resided in the home for a year or more.
This means that assault against a roommate, for example, is not considered domestic violence, since it falls short of the cohabitation requirement.
Penalties for Domestic Violence
In Virginia, assault and battery against a family or household member is a Class 1 misdemeanor. This means that the court may punish it with a fine of up to $2,500 and a year in jail. This is in addition to other charges arising as a result of the domestic violence incident.
For example, an individual might face both domestic violence and malicious wounding charges after a single event.
Additionally, a third conviction of domestic violence within 10 years is punishable as as Class 6 felony, which can result in up to 5 years in prison. Individuals convicted of domestic violence, especially felonious domestic violence, are also subject to certain collateral consequences. This can include the loss of job opportunities, housing, and bars on owning a firearm.
Finally, if you have injuries damages as a result of a domestic violence incident, you may be able to sue the perpetrator for damages. This can include medical and legal bills, as well as compensation for lost work.
Protective orders form another important part of many domestic violence cases. Virginia divides its protective orders into three general categories, which we’ll
For a more thorough rundown, see our comprehensive guide to protective orders in Virginia.
Emergency Protective Orders
The court generally issues Emergency Protective Orders in cases where there’s a very real chance of retaliation against a reporter of domestic violence, assault, and other violent crimes.
In many cases, the police will file for an emergency protective order on your behalf. Emergency Protective Orders last for 72 hours before expiring. If you feel you need protection for longer, you should apply for a preliminary protective order before this time period is up.
Emergency Protective Orders prohibit their targets from:
- Contacting the victim and their family.
- Committing criminal, violent, or threatening actions against the victim and their family.
In addition, an emergency warrant will grant temporary ownership of any shared animal or domicile to the victim.
Preliminary Protective Orders
Preliminary Protective Orders exist to protect victims from the alleged perpetrators of domestic violence until their trial. In most cases, a victim must file for a preliminary protective order themselves. However, in emergency situations where the victim is indisposed, the court may issue an order ex parte (without notice to the defendant).
Preliminary Protective Orders last for fifteen days, or until your court date.
Preliminary Protective Orders prohibit the same acts as Emergency Protective Orders. They may also do the following:
- Require the respondent to restore and maintain utility services for the victim’s household.
- Grant temporary ownership of a shared vehicle.
- In situations where the victim or their family lacks housing, an Emergency Protective Order may order the respondent to provide it.
- Require other necessary financial support to the victim.
Permanent Protective Orders
Permanent Protective Orders come into effect as a result of a judge’s decision during a family abuse trial. The victim must renew their emergency protective order every two years to keep it in effect.
A permanent protective order may prohibit or require any of the actions described above. In addition, a permanent protective order can do the following:
- Grant child custody for as long as the order remains in effect.
- Require child support payments from the respondent.
- Require the respondent to attend counseling or treatment.
- Order the respondent to pay their victim’s attorney fees and court costs.
Finally, any person with a permanent protective order against them is prohibited from owning a firearm in Virginia.
Protecting Yourself from Domestic Violence
If you are a victim of domestic violence, it’s important to act quickly to protect yourself and your family. Prepare to take the following steps in case of a domestic violence incident:
1. Remove Yourself and your Family from Danger
Before you do anything else, it’s important to remove yourself and your children from the situation.
Don’t be afraid to call emergency services or leave your home if you feel that you are in danger. If you have friends or family nearby, seek them out. Develop a plan to protect yourself in the event that your abuser returns.
If you’re injured, seek medical attention. Request that the professionals attending you document your visit and the extent of your wounds. This information will be important during your hearing.
Finally, remember that there are numerous resources available to you that can help you stay safe and secure. As two quick examples, check out the Virginia Attorney General’s page on domestic violence and the National Domestic Violence Hotline.
2. Call the Police
After you arrive in a safe location, call the police and inform them of the incident. Answer their questions as thoroughly and truthfully as you can.
Make sure that you ask the responding officer to file for an Emergency Protective Order immediately.
Make sure the police carefully document any evidence that you provide. In addition, you should take pictures and otherwise document any evidence, including injuries and damage to property.
Keep in mind that your Emergency Protective Order will only last three days. For that reason, you’ll want to apply for a Preliminary Protective Order as soon as possible.
3. Contact a Family Law Attorney
Either before or after filing for a protective order, you should get in touch with an experienced family law attorney.
In addition to providing legal advice, your attorney can help you file for a preliminary protective order with the local general district court. Your lawyer can then assist you in preparing your case, and hopefully obtaining a permanent protective order.
They can also help guide you towards resources which can help you rebuild your finances. Financial independence is an important step towards gaining your freedom, so you’ll want to chat with someone about how you can go about opening new accounts and budgeting for the future.
If you’re interested in seeking a fault-based divorce, this point is a good time to start researching Virginia’s divorce laws. In particular, you’ll want to understand the difference between an absolute divorce and a divorce from bed and board.
Whether you apply for one or both will depend on your specific circumstances, as well as the outcome of your hearing.
4. Seek Out Support
Many organizations exist to help victims of domestic violence. Some provide important safety information, such as the National Domestic Violence Hotline. Others provide direct links to support groups, domestic shelters, and emergency homes for victims of domestic violence.
Common Myths about Domestic Violence
Domestic violence is a subject frequently discussed online and in the media. Unfortunately, that means that certain well-known “facts” about domestic violence are actually myths. At the very least, many pieces of advice you might read either don’t apply to your case, or will only hurt you in the long run.
Below, we’ll list a few of the most common, and most damaging, myths about domestic violence in Virginia.
MYTH: You Shouldn’t Take Your Children when You Leave
FACT: In almost all cases, the law permits a parent to remove their children from a potentially abusive situation. This is not kidnapping, even if the other parent objects.
Even if you don’t believe that your children are in direct danger, it is still advisable to take them with you when fleeing an abusive situation. Doing so will make it easier to obtain sole legal custody in the long run.
However, if a custody order already exists between you and the abusive parent, you should speak with a lawyer before taking the children with you. Going against a custody order is a serious matter in Virginia, and doing so haphazardly might hurt your case.
MYTH: Fleeing a Domestic Violence Situation Counts as Abandonment
FACT: In Virginia, abandonment is grounds for a fault-based divorce case, and generally reflects badly on the abandoner in court. However, permanently leaving a shared home only becomes abandonment if you do so without “good cause.”
Fleeing due to abuse, violence, or a credible fear of either generally counts as “good cause” in Virginia courts. For this reason, fleeing your home because of domestic violence is a perfectly reasonable defense against an abandonment claim.
MYTH: Family Abuse Only Refers to Physical Violence
FACT: In Virginia, family abuse includes many acts of physical violence, including physical and sexual assault. However, the law also recognizes neglect, deliberate acts of physical intimidation, and several other abusive actions as family abuse.
For example, simply threatening to harm a household member’s children qualifies as family abuse under the law.
MYTH: You Lose Your Property When You Flee a Domestic Violence Situation
FACT: If you can demonstrate to the court that you personally own property (i.e. that you do not share it with your spouse), you may file a warrant in detinue. This is essentially a document that starts a proceeding for recovering property that’s unlawfully held by another party.
However, before you file for a warrant in detinue, you must first demand the property from the other party. Note that this does not apply to pets which you solely own, which you may take possession of through a protective warrant.
Additionally, as mentioned above, obtaining a protective order can be an important step in maintaining your property. A judge can grant the right to use a shared home or car to a party seeking a protective order, even if the property is not in your name.
MYTH: Domestic Violence is Legal Grounds for Immediate Divorce
FACT: Unfortunately, Virginia’s divorce laws make the question of domestic violence and divorce somewhat complicated. Unless a court convicts your spouse of a felony, you need to live apart for either six months or one year before filing for divorce.
Additionally, you will need to prove that your spouse was cruel in the eyes of the law. While most judges consider a conviction for family abuse proof of cruelty, there have been exceptions in the past.
For this reason, many victims of domestic violence choose to file for a bed and board divorce during the waiting period. Like an absolute divorce, this is a fault-based legal action that will allow you to divide shared property. However, unlike an absolute divorce, you may file for a bed and board divorce immediately after separating from your spouse.
In any domestic violence situation, your first act should be to secure the safety of yourself and your children. Following that, always call the police, document any injuries, and provide a detailed, truthful account of the incident.
Remember that there are many resources available to you throughout Virginia, including women’s shelters and federal hotlines. Other great resources available to you include family practice attorneys, who have experience with navigating these issues from a legal standpoint.
A good family law attorney can help ease the tremendous emotional burden of going through a domestic violence case by handling the legal aspects. This will allow you to focus on healing and connecting with others who can provide emotional support.