Domestic Assault Attorney

Estimated reading time: 15 minutes

Domestic Assault Attorney Thomas Gallagher’s Minnesota defense guide.

In Minnesota domestic assault is the most common domestic violence charge. But others include criminal charges of violating a restraining order based on a relationship. And Minnesota law defines a “domestic” relationship broadly; in ways that defy common sense (including no family or sexual relationship).

Love-triangle: For example, Domestic Assault Attorney Thomas Gallagher defended a client; one of two male college roommates fighting. But they were fighting over a girlfriend, who’d decided to switch from one to the other. And then the prosecutor charged the client with “domestic assault” against the rival, despite the fact they had no sexual or family relationship. But prosecutors could not have done so, under the narrower, more common sense, federal domestic relationship definition.

Minnesota Domestic Crime Statutes

What makes a crime a “domestic crime?” Domestic violence laws vary, but have one common element.

Relationship element: Minnesota law creates several domestic crimes that all contain a relationship element. So, a domestic crime requires evidence that the accused and the witness had that type of relationship, in addition to all the other statutory elements that must be proved. The most common example of these are misdemeanor domestic assault cases. So, a domestic assault attorney could win your case if evidence of the required relationship is lacking, among other ways.

Using the commonly charged misdemeanor domestic assault statute as an example, here is its definition of domestic relationship:

“Whoever does any of the following against a family or household member as defined in section 518B.01, subdivision 2, commits an assault and is guilty of a misdemeanor …”

Minn. Stat. § 609.2242, Subd. 1 Domestic Assault

It incorporates by reference, the definition in another statute:

“‘Family or household members’ means:
(1) spouses and former spouses;
(2) parents and children;
(3) persons related by blood;
(4) persons who are presently residing together or who have resided together in the past;
(5) persons who have a child in common regardless of whether they have been married or have lived together at any time;
(6) a man and woman if the woman is pregnant and the man is alleged to be the father, regardless of whether they have been married or have lived together at any time; and
(7) persons involved in a significant romantic or sexual relationship.

… In determining whether persons are or have been involved in a significant romantic or sexual relationship under clause (7), the court shall consider the length of time of the relationship; type of relationship; frequency of interaction between the parties; and, if the relationship has terminated, length of time since the termination.”

Minn. Stat. § 518B.01, Subd. 2 (b)

Statute definition vs. other crime + relationship facts

Most domestic crimes are crimes against persons. However, they include a relationship element in the statute. And a prosecutor can charge some cases with relationship-facts, under domestic crime statutes that require proof of relationship. But they don’t necessarily have to.

So a prosecutor could not charge a stranger assault as a domestic assault (no relationship). But she could charge the wife-husband assault as either “domestic assault,” or “5th degree assault” (non-domestic), or both.

Is domestic assault a felony?

Minnesota statutes allow prosecutors to “enhance” charges to a more severe, felony level in some situations.

Enhancement elements: Domestic assault can be a felony. Minnesota has many statutes that prosecutors can use to charge a felony-level domestic assault.

Minnesota’s specific domestic assault crime statute, Minn. Stat. § 609.2242, creates crimes at the misdemeanor, gross misdemeanor, and felony levels. And the gross misdemeanor requires proof of “a previous qualified domestic violence-related offense conviction” within ten years.

If the defendant has prior “qualified domestic violence-related offense” convictions within ten years; the prosecutor can allege that to support the enhancement element for felony domestic assault. But Attorney Thomas Gallagher has won dismissal of felony domestic charges, based on priors.

And another tactic for prosecutors is the controversial felony “domestic assault – strangulation” charge. Prosecutors use it to inflate a misdemeanor-level case into a felony; with the flimsiest evidence of incidental neck touching, a red mark, or the like. Gallagher has yet to see a single “domestic assault – strangulation” case that actually involved any strangulation at all. This is a law prone to abuse by police and prosecutors.

But your domestic assault attorney can help you push back.

Five degrees of non-domestic assault crimes

Prosecutors can charge (non-domestic) assault fifth degree as a misdemeanor, gross misdemeanor, or felony. Minn. Stat. § 609.224. The gross misdemeanor and the felony levels require at least one “previous qualified domestic violence-related offense conviction.” But the look-back periods are either three or ten years.

The first degree through fourth degree, felony assault statutes generally do not require prosecutors to prove a relationship element.

Your domestic assault attorney should be familiar with these laws.

Other crimes prosecutors claim in domestics

We also see criminal charges in domestic-related cases (facts) that do not require a relationship element (law). They include misdemeanor fifth-degree assault, disorderly conduct, obstructing legal process, “threats of violence,” and most criminal sexual conduct laws.

So when we speak of a domestic or family violence case; we could mean the accusation fits the narrow, legal definition. Or people might be speaking loosely about any criminal case where the people involved have a relationship (apart from legal definitions).

What about child abuse crimes? They require proof of age, but not of relationship. Abuse of any child can be a crime, regardless of relationship. These include child neglect, child endangerment, and other child abuse crimes.

And though often associated with domestic cases, these criminal statutes don’t require relationship proof: stalking and harassment crimes; violation of an Order for Protection (OFP), Harassment Restraining Order (HRO), or Domestic Abuse No Contact Order (DANCO); and interference with emergency 911 call.

Domestic violence laws: common charges

Felony Assault: A Minnesota state “felony” is a crime with a maximum penalty of one-year or longer in prison.

The state can charge first through fifth degree assault as a felony, depending upon various factors: level of bodily harm; method of causing harm or fear, e.g., “strangulation;” status characteristics of “victim;” history of accused, prior convictions, same “victim;” specific intent of accused, use of “dangerous weapon.” Minnesota Statutes § 609.221 “Assault in the First Degree,” § 609.222 “Assault in the Second Degree,” § 609.223 “Assault in the Third Degree,” § 609.2231 “Assault in the Fourth Degree,” § 609.224, subd. 4 “Assault in the Fifth Degree – Felony,” and § 609.2247, “Domestic Assault by Strangulation.”

But the domestic crimes statutes for assault include a relationship element.

Misdemeanor Assault: Most domestic violence charges are not felonies. Misdemeanor assaults can include Gross Misdemeanor and simple Misdemeanor assault charges. A Minnesota “gross misdemeanor” is a crime with a maximum of 364 days in jail. And a Minnesota simple “misdemeanor” is a crime with a maximum of 90 days jail.

But don’t worry too much about maximums. They are rarely executed, especially with no prior record. And these days a criminal conviction record can be worse than jail, with lifelong consequences.

Prosecutors can charge gross misdemeanor and simple misdemeanor assault, given various factors: status characteristics of “victim,” specific intent of accused, “domestic” relationship, bodily harm, vs. “act with intent to cause fear.” Minnesota Statutes § 609.2231, subds. 2a, 4, 5, 6, 7, “Assault in the Fourth Degree,” § 609.224, subds. 1, 2, “Assault in the Fifth Degree,” and § 609.2242, subds. 1, 2, “Domestic Assault.”

“Threats of Violence” f/k/a “Terroristic Threats”

Minnesota’s “Threats of Violence” crime doesn’t fit into the domestic violence laws, because the prosecutor need not prove a relationship in order to get a conviction. But it’s a common charge in domestic scenarios. And it could be one of several charges in a Complaint.

Formerly called “terroristic threats,” a misleading title, it has nothing to do with terrorism at all. A more accurate description of the statue is simply “threats,” the current label.  Of course, until not too long ago “threats are not enough” was the law.  (Though to be fair, sometimes “threats are not enough” is still the case.) Then, we had a crime with a dramatic, misleading “terroristic” name. But a few years ago, the legislature renamed this crime to “threats of violence.”

It can be a felony or gross misdemeanor charge. It involves claiming threat of violence plus, a claiming intent to terrorize another. Minnesota Statutes § 609.713, “Threats of Violence.”

Interference with 911 Call

“Interfering with a 911 call” is also a criminal statute apart from domestic violence laws. So the prosecutor has no need to prove relationship. This one can be a gross misdemeanor or a simple misdemeanor charge. Minnesota Statutes § 609.78, subd. 2. And is often one of several charges in a Complaint.

Here is a common scenario. During a domestic discussion, one party hangs up, takes or disables a call to a 911 emergency dispatcher. And the 911 call recording can help the prosecutor prove her case at trial, or not. Or a fake 911 call could be a crime. For more about these charges see the 911 Call Crimes page:

Interference with an Emergency Call | False 911 Call.

Criminal Sexual Conduct

Not all criminal sexual conduct prosecutions are “domestic” in nature, but some are. And most, from first through fifth degrees, are felonies. Most require sex offender registration if convicted of something (even a lesser crime like disorderly conduct) stemming from the same behavioral incident.

So, see our sex crimes page for more in-depth discussion. “Domestic” crim sex cases have built-in questions about the accuser’s veracity and motivation for pointing the finger of blame. So, the relationship history is often relevant to the accuser’s motive or bias.

Factors relevant to domestic-type “crim sex” cases include “significant relationship,” statutory definition, “position of authority,” and penetration vs. sexual contact. Minnesota Statutes § 609.341 to § 609.351 (Criminal Sexual Conduct statutes.)

Child Neglect or Endangerment

This can be a felony or a gross misdemeanor. And if the child is related to the defendant, the case may fit into Minnesota’s domestic violence laws. Child Neglect crimes include willfully depriving necessities likely to substantially harm; or knowingly permitting sexual abuse. Child Endangerment crimes include permitting a situation likely to substantially harm; or where illegal drugs. Minnesota Statutes § 609.378, “Child Neglect or Endangerment.” These charges are familiar to a domestic assault attorney. And child neglect or endangerment crimes can trigger severe “collateral” consequences, even if not under a domestic crime statute.

Malicious Punishment of a Child

If the child is related to the defendant, the prosecutor can charge under Minnesota’s domestic violence laws. A prosecutor can charge “Malicious Punishment of a Child” as a felony or gross misdemeanor depending upon various factors: unreasonable force or cruel discipline, excessive under circumstances, prior convictions, child under four, level of bodily harm. Minnesota Statutes § 609.377, Malicious Punishment of a Child.

And, for example, some “third degree assault” charges are specific to child abuse, regardless of relationship to child. There a prosecutor must prove “a past pattern of child abuse” against the same minor, under Minn. Stat. § 609.223, subd. 2. And a prosecutor must prove assault of “a victim under the age of four, and causes bodily harm” to the head, eyes, or neck, or multiple bruises, under Minn. Stat. § 609.223 subd. 3. Both are felonies.

Stalking & Harassment crimes

Stalking and Harassment crimes can be a felony or gross misdemeanor. And though many do not involve a domestic relationship, the accuser and the accused may know each other. But prosecutors don’t need relationship evidence.

Stalking and harassment factors include: following or pursuing, in person or using technology. including phone calls, mail, email, texting; intentional conduct, knowing or reason to know, that conduct would cause the person to feel frightened, persecuted. And the criminal charge can be enhanced if various factors proven: status characteristics of the “victim,” possession of “dangerous weapon,” history, pattern of child abuse, prior convictions, same “victim.” Minnesota Statutes § 609.749, Stalking and Harassment crimes.

Violation of an OFP, or HRO

Violation of an HRO does not require a domestic relationship. And these Violation of an Order for Protection (OFP), or Harassment Restraining Order (HRO), crimes can be a felony, gross misdemeanor, or misdemeanor, depending upon various factors. The prosecutor attempts to prove that the accused knowingly, violated the terms of the OFP or HRO.

And the charge can be enhanced to a more serious crime if various factors proven: status characteristics of the “victim,” possession of “dangerous weapon,” history, pattern of prior OFP, HRO violations, convictions. Minnesota Statutes § 518B.01, Subd. 14. See:

Restraining Order | Civil & Criminal

Penalties prevention: domestic assault attorney

Prosecutors can charge domestic crimes as misdemeanors, gross misdemeanors, or felonies.

The level of conviction depends upon the length of incarceration “imposed” by the judge at sentencing (not the level of the original charge). And one year or more is a felony. Thirty-one to 364 days is a gross misdemeanor. Or, up to 90 days is a misdemeanor. Your domestic assault attorney can help you understand and avoid these penalties.

But, in contrast, the level of the charge depends upon the maximum possible jail or prison time in the statute.

Probation is a “Stay of Imposition,” or “Stay of Execution” of Sentence. And felony probation is more common than a commitment to the Commissioner of Corrections (prison). With a probationary sentence, the defendant can avoid prison (or more jail) by complying with the conditions. Common conditions of probation in these cases include a domestic violence evaluation, following its recommendations; and no contact with the victim. See:

Sentencing Hearing Guide

The biggest penalty is the criminal “conviction” record, in most cases. And it triggers harsh consequences. But a good domestic assault attorney can help you avoid them.

Government “solutions:” Reduction in annual family income: A big consequence is the loss of family income and job opportunities due to a conviction record. And if you multiply annual income reduction by future working years; the dollar-amount is huge. The secondary impact on child support with reduced income can be huge as well.

Destruction of marriage and the family: So these cases tremendously stress the defendant, the witness, and the entire family. And with the No Contact Orders, both pre-trial and during years of probation; the government destroys marriages and families. And this is government overkill, in most cases.

Avoiding Consequences of Conviction

A good domestic assault attorney can help you and your family avoid the severe consequences of a conviction. Beyond jail or prison, a person facing domestic crime charges, a criminal conviction record is a severe consequence. But a conviction can be worse than jail and can result in:

1. Reduction in annual income; reduced child support
2. Professional, occupational license loss
3. Health & other insurance premiums increase
4. Credit report & rating damage
5. Deportation or Removal from United States (of non-citizens)
6. Public criminal record
7. Firearm civil rights gone
8. Carry permit gone
9. Child custody factor
10. Juvenile court & Child Protection case (CHIPS)
11. Rental housing problems (homeless)

Collateral consequences: domestic assault attorney

Whether an alleged crime is a domestic has implications. Because the domestic relationship statutory element or facts can not only increase the punishment, other “collateral” consequences of the conviction may be more severe. For example, a misdemeanor domestic assault conviction may trigger deportation for a non-citizen.

Lifetime loss of civil rights: A domestic crime conviction often results in a default lifetime loss of civil rights to firearms. And this is another government overreach, especially for most defendants with only one incident or no felonies. So for a deeper look:

Civil Rights to Firearms After a Misdemeanor Domestic Crime Conviction in Minnesota

Minnesota Crimes of Violence

Possession of a Firearm by a Prohibited Person

But your experienced domestic assault attorney can help you understand, prevent and solve these civil rights problems.

Victim Rights & Domestic Violence Laws

When police respond to a domestic 911 call, they may choose one of two people to arrest. Then they cast the other person into the role of “victim.” But who is really victimizing them? The chosen “victim” soon learns that police and prosecutors ignore their pleas, and only want to use them. So prosecutors tell them they have no power, no voice — just be quiet and do as you’re told.

But that is wrong. If “the victim” wants the “No Contact Order” dropped, wants the charges dropped; the labeled “victim” can influence events. And reading: How to Drop a No Contact Order in Minnesota (link below or use search box) can be a good start. You do have legal rights. The Minnesota Victim’s Rights statute can help, Minnesota Statutes Chapter 611A. And see:

How to Drop a No Contact Order in Minnesota.

Domestic Assault Attorney: Defending

The person accused has rights, too. Your experienced domestic assault attorney will employ strategies to effectively defend you. Counseling the client is important in these cases. So, for example, what should the accused do in response to the court’s “No Contact Order?” Your experienced domestic assault attorney can advise.

Examples of cases involving claims of domestic violence crime handled by Domestic Assault Attorney Thomas Gallagher include:

• Felony Domestic Assault, including strangulation claims, priors
• Interference with a 911 Emergency Call
• Misdemeanor Domestic Assault
• Violation of an Order for Protection (OFP), Harassment Restraining Order (HRO)
• Child Abuse or Neglect
• Criminal Sexual Conduct, with or without relationship element

Holding Government to its Proof

Since the prosecution fails unless they have evidence to overcome the presumption of innocence, what actual evidence is there? Nothing more than a naked accusation, without corroborating evidence?

The jury is the last line of defense for human rights and liberty under our Constitution. The juror’s job is to test the theory that, at minimum, reasonable doubt exists. A prosecutor can attempt to convict a person of a domestic crime on the uncorroborated claims of a single witness. But that witness may have an axe to grind; an agenda. And you need the best defense to counter that.

Defenses & Your Domestic Defense Attorney

Everyone facing a domestic criminal charge needs a good defense attorney to help protect those rights. We can challenge questionable and false evidence brought by the State.

Domestic violence criminal cases are a subset of criminal cases in general. So, in every domestic charge case, all of the defenses available generally in criminal cases are also available for this type of case. Examples include accident, lack of intent, and no assault or threats. But domestic criminal statutes all share special characteristics, such as relationship evidence and issues. In a few cases, a duress defense may be the product of an abusive relationship.

And often in domestic criminal cases, we see only two witnesses. Of those two, the defendant cannot be forced to testify. As a result, the other witness has the power to destroy the prosecution case, for lack of evidence, provided that the defendant did nothing to encourage that.

Self-Defense: Like assault cases generally, many domestic assault cases involve a defense based upon reasonable self-defense:

Minnesota Self-defense laws

False Reports: False accusations are common. The accuser’s strong emotions at the time of the police report may distort them. And the relationship history can influence them. So false claims against someone they know, including family, are common. Relationship issues can make us upset, emotional, exaggerate; and sometimes even fabricate. And alcohol makes it worse.

In most cases, the people were using alcohol. And the alcohol reduces impulse control, increases emotions, degrades perception and reporting of events.

Fifth Amendment Privilege: A prosecutor may charge both parties for mutual assault. Or they might pick one. And in this situation, an effective defense can involve both parties getting their own witness attorney, to checkmate the prosecution. Other defenses are available as well.

Question? Call Domestic Assault Attorney Thomas Gallagher, 612 333-1500

Minnesota Criminal Attorney Thomas Gallagher has decades of experience helping clients defend against these charges, and win. So protect your family, your name, your future. You are welcome to call him with questions.

More: domestic assault attorney

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