Family Violence Battery

Cruelty to Children in the 3rd degree is a misdemeanor charge than can sometimes accompany a charge for an act of family violence. Many times, this charge can come as a surprise. Especially if someone who is charged with an act of family violence was involved in a physical altercation with another adult. Georgia law defines Cruelty to Children in the 3rd degree as:

“when a person, who is the primary aggressor, intentionally allows a child under the age of 18 to witness the commission of a forcible felony, battery, or family violence battery; or person who is the primary aggressor, having knowledge that a child under 18 is present and sees or hears the act, commits a forcible felony, battery, or family violence battery. O.C.G.A. 16-5-70 (d)(1).”

The presence of a child during an act of family violence will almost certainly result in a police officer adding a charge of cruelty to children in the 3rd degree. Unlike Cruelty to Children in the 1st or 2nd degree which are felony charges, Cruelty to Children in the 3rd degree is a misdemeanor. As such, the severity of the punishment is capped at 12-months in custody and $1000 fine. It should be noted that in some circumstances, multiple convictions for cruelty to children in the 3rd degree can result in upgrade felony punishment. However, most instances result in a misdemeanor charge.

The defenses to a family violence charge are almost always based on the specific facts of the case. That being said, there are some common defenses that present themselves in many cases. An alibi defense would demonstrate that it would be physically impossible for a person charged with an act of family violence to be guilty of the charge because they were not present for the alleged crime. Other defenses may include arguing a lesser included offense. Such as, arguing the facts support a misdemeanor instead of a felony charge. The most common defense to an act of family violence battery or family violence assault is self-defense.

Georgia self-defense law provides that “a person is justified in threatening or using force against another when and to the extent that he or she reasonably believes that such threat or force is necessary to defend himself or herself or a third person against such other’s imminent use of unlawful force.” O.C.G.A. 16-3-21. It is important to note that the use of deadly force or force that may result in substantial bodily harm is only justified if the use of such force would prevent death or great bodily injury. O.C.G.A. 16-3-21. In other words, a person can be justified in using some form of violence if it is reasonably used for the purposes of protecting injury. The safest way to avoid being charged with an act of family violence is to not engage in violence. However, Georgia law does provide a defense for those who are threatened by injury.

It has become common practice for police officers to encourage those who have been a victim of a family violence act to seek a temporary protective order (“TPO”) from a Superior Court judge. A temporary protective order is very often referred to as a restraining order. A temporary protective order in Georgia is a separate proceeding from the criminal charges that may arise out of a family violence incident. In Georgia, someone who is the victim of an act of family violence may petition a Superior Court Judge to issue an order that would prevent another party from having contact, restricting access to residence, and even providing a temporary basis for custody. As such, temporary protective orders usually start as an ex parte temporary protective order that results from the petitioner outlining allegations of family violence and scheduled a hearing for a 12-month protective order. Each step of the temporary protective order is governed by statute and it is important that every aspect of Georgia law is met before the issuance of a protective order. A violation of a protective order can result in the respondent of the order being arrested for aggravated stalking, violation of a family violence order, and contempt of court.

As you can see from the information above, each case can have its own intricacies that involve many different legal avenues. It’s important consult with a lawyer to discuss what options may be available in your case. First and foremost, each person charged with any crime is entitled to have a trial by jury. At that trial, the prosecutor would have the burden of proving the charges beyond a reasonable doubt. As discussed above, the trial could include several different types of defenses that you and your lawyer can discuss before that trial. However, not everyone desires going to trial and seek other options.

Some individuals who have never been charged with a crime in the past and have misdemeanor charges may be eligible for a county pre-trial diversion program. Depending on the jurisdiction, pre-trial diversion may be offered by local prosecutors as an alternative to the traditional judicial process. Pre-trial diversion can include, but not limited, the performance of community service, domestic violence classes, and a program fee. It is important to note that not every jurisdiction offers pre-trial diversion and some do not offer pre-trial diversion on family violence charges.

Other charges may not fall into the guidelines of a pre-trial diversion program. Other options may be available for first time offenders such as the First Offender Act. The First Offender Act in Georgia is a sentencing provision that the Judge, within his or her discretion, can grant to a person entering a plea to the charges. The benefit to a First Offender Plea is that if the Defendant successfully completes the requirements of the sentence imposed by the Judge, then the Judge would withhold adjudication against the Defendant and seal their record. However, if the Defendant fails to complete the sentence requirements, violates the terms of probation, or re-offends with another crime, then the Judge can then pull the First Offender status of the Defendant and resentence the Defendant to the maximum punishment allowed by law, minus any time that has already elapsed on the sentence.