Second Domestic Assault & Battery Charge

Now if this is the second time you have received this charge, and the second offense is within ten years of completion of the sentence in the first case, the charge is a felony and the range of punishment changes dramatically. The sentencing range jumps from a misdemeanor sentencing range all the way up to a life changing felony charge on your second offense for domestic assault and battery. The second offense sentencing range carries up to four years in prison, the Department of Corrections, not your local jail.

Under the law, a dating relationship means any intimate association that is characterized by affectionate or sexual involvement. So a casual acquaintance or your ordinary fraternization amongst different persons, individuals, whether it be business, work or even social, that doesn’t constitute a dating relationship.

Domestic Abuse VS. Domestic Assault & Battery

Domestic abuse, which is different than domestic assault and battery, is defined in the statute and means any act of physical harm, or even the threat of physical harm, which is committed by an adult or an emancipated minor or minor child 13 years of age or older against another adult, emancipated minor or minor child who’s currently or previously an intimate partner or family or household or was previously an intimate partner or a family or household member.

Family and household members, this is huge, can mean almost everybody you may associate with. Parents, grandparents, step-parents, adoptive parents, foster parents, etc. This definition includes children, grandchildren, stepchildren, adopted children, foster children, and persons that are otherwise related by blood or marriage that are living in the same household.

An intimate partner, when we discuss that relationship, is defined and deals with current or former spouses, persons who are or were in a dating relationship, persons who are the biological parents of the same child, regardless of what their marital status, or even whether or not they’ve even lived together at any time, persons who are currently or formally lived together in an intimate way, primarily through some type of affection or sexual involvement.

A sexual relationship is an indicator of an intimate partner but isn’t a necessary condition of it. The opposite is also true. Just because you have a sexual relationship, it is an indicator, but in and of itself is not enough to make the person an intimate partner.

In Oklahoma, the number of individuals that if you get in a fight or an argument with them, can cause you to be arrested for domestic assault and battery charge is ridiculous. You could get in a fight with a brother or sibling, and that fight between siblings, in Tulsa County, I can tell you because these idiots in the Tulsa DA’s office do it, will get you a charge of domestic assault and battery. If you get in a fight with your current lover’s ex, that will get you a domestic assault and battery charge. It does not matter in Oklahoma if there is a complete absence of coercive control, which again is the core element of domestic violence, if you get in a fight or use force or violence against an individual protected under 22 O.S. §60.1, you can be charged with Domestic Assault and Battery.

So why is domestic assault and battery treated so much more seriously in Oklahoma than a simple assault and battery charge which at most carries 90 days in jail? Assault and battery in Oklahoma, which falls into the same statute 21 O.S. Section 644 involves you using force or violence against somebody else, grabbing somebody else, offensively touching someone else without their permission. In doing so, if you were to be convicted, the absolute max that you can get on a simple assault and battery is 90 days in the county jail. A conviction for simple assault and battery does not require 52 weeks of domestic violence intervention counseling. None of the other onerous probation burdens are going to be placed upon you in a simple assault and battery.

However, if you and your brother get in a pissing contest over something, the TV, football, finances, the car, girls, whatever, or you are just two brothers getting in a normal brother argument, and you get in a fight, you’re looking at a domestic assault and battery charge in Oklahoma! That’s stupid, and that is not the intention of the statute. The intention of the statute and the State is trying to punish that conduct because of the existence of coercive control and the dangers associated with its exercise in a domestic relationship. Coercive control is a central theme and element in every domestic assault and battery case. That type of control, that type of micromanagement, that type of manipulation, that type of modern-day slavery where the defendant is exerting not only emotional violence and mental violence and trauma onto the person, but also physical violence. Coercive control is designed to control and strip away the rights and freedoms and liberties of that individual, and that in part is why the punishment is higher.

If your case has to go all the way to a jury trial, at the conclusion of all of the evidence, the judge will instruct the jury on the law for the case by reading the Oklahoma Uniform Jury Instruction (OUJI) applicable to the case.

In Oklahoma, the elements for domestic assault and battery, are found at OUJI CR-4-26A. This instruction states that no person may be convicted of domestic abuse unless the state has proved beyond a reasonable doubt each element of the crime.

These elements are:

First, willful;

Second, unlawful;

Third, attempting or offering to use force or violence; and,

Fourth, the use of force or violence;

Fifth, was against the person in a specific relationship covered under §644(C).

You can see from the language in the Instruction that it uses the language domestic abuse, and not domestic assault and battery. Domestic abuse is actually different than domestic assault and battery. At trial, the State must only prove the defendant: willfully, unlawfully, attempt or offered to use force or violence, the actual use of force or violence, and the force or violence was against a person that is protected by the statute 22 O.S. § 60.1, i.e. your brother, your dad, your mom, your sister, anyone within that intimate or household or familial blood relationship. The State does not have to prove the element of coercive control at trial, regardless of what their “expert” says on the stand.

Lee Berlin
Dedicated to defending clients accused of domestic violence, sex & violent crimes throughout eastern Oklahoma.