Frequently Asked Questions Regarding Assaults/Domestic Assaults
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  1. What is Assault in the First Degree?
    1. Unless the actor inflicts serious physical injury upon the victim, assault in the first degree is a class B felony upon which a person attempts to kill or knowingly cause serious physical injury to another person.  If the actor inflicts serious physical injury, the charge can be a class A felony.
  1. What is Assault in the Second Degree?
    1. A person commits the class C felony of assault in the second degree if he:
      1. (1) Attempts to kill or knowingly causes or attempts to cause serious physical injury to another person under the influence of sudden passion arising out of adequate cause; or (2) Attempts to cause or knowingly causes physical injury to another person by means of a deadly weapon or dangerous instrument; or (3) Recklessly causes serious physical injury to another person; or (4) While in an intoxicated condition or under the influence of controlled substances or drugs, operates a motor vehicle in this state and, when doing so, acts with criminal negligence to cause physical injury to another person other than himself; or (5) Recklessly causes physical injury to another person by means of discharge of a firearm; or (6) Operates a motor vehicle in violation of subsection 2 of section 304.022, RSMo, and when so operating, acts with criminal negligence to cause physical injury to any person authorized to operate an emergency vehicle, as defined in section 304.022, RSMo, while such person is in the performance of official duties.  The defendant shall have the burden of injecting the issue of influence of sudden passion arising from adequate cause under subdivision (1) of this section.
  1. What is Assault in the Third Degree?
    1. A person commits the crime of assault in the third degree if:
      1. (1) The person attempts to cause or recklessly causes physical injury to another person; or (2) With criminal negligence, the person causes physical injury to another person by means of a deadly weapon; or (3) The person purposely places another person in apprehension of immediate physical injury; or (4) The person recklessly engages in conduct which creates a grave risk of death or serious physical injury to another person; or (5) The person knowingly causes physical contact with another person knowing the other person will regard the contact as offensive or provocative; or (6) The person knowingly causes physical contact with an incapacitated person, as defined in section 475.010, RSMo, which a reasonable person, who is not incapacitated, would consider offensive or provocative.
    2. Generally, assault in the third degree is class A misdemeanor.  A person who has pled guilty to or been found guilty of assault in the third degree more than two times against any family or household member as defined in section 455.010, RSMo, is guilty of a class D felony.
  1. What is Domestic Assault in the First Degree?
    1. A person commits the crime of domestic assault in the first degree if he or she attempts to kill or knowingly causes or attempts to cause serious physical injury to a family or household member or an adult who is or has been in a continuing social relationship of a romantic or intimate nature with the actor, as defined in section 455.010, RSMo.
    2. Domestic assault in the first degree is a class B felony unless in the course thereof the actor inflicts serious physical injury on the victim or has previously pleaded guilty to or been found guilty of committing this crime, in which case it is a class A felony.
  1. What is Domestic Assault in the Second Degree?
    1. A person commits the crime of domestic assault in the second degree if the act involves a family or household member or an adult who is or has been in a continuing social relationship of a romantic or intimate nature with the actor, as defined in section 455.010, RSMo, and he or she:
      1. (1) Attempts to cause or knowingly cause physical injury to such family or household member by any means, including but not limited to, by use of a deadly weapon or dangerous instrument, or by choking or strangulation; or (2) Recklessly causes serious physical injury to such family or household member; or (3) Recklessly causes physical injury to such family or household member by means of any deadly weapon. Domestic assault in the second degree is a class C felony.
  1. What is Domestic Assault in the Third Degree?
    1. A person commits the crime of domestic assault in the third degree if the act involves a family or household member or an adult who is or has been in a continuing social relationship of a romantic or intimate nature with the actor, as defined in section 455.010, RSMo, and:
      1. (1) The person attempts to cause or recklessly causes physical injury to such family or household  member; or (2) With criminal negligence the person causes physical injury to such family or household member by means of a deadly weapon or dangerous instrument; or (3) The person purposely places such family or household member in apprehension of immediate physical injury by any means; or (4) The person recklessly engages in conduct which creates a grave risk of death or serious physical injury to such family or household members; or (5) The person knowingly attempts to cause or causes the isolation of such family or household member by unreasonably and substantially restricting or limiting such family or household member’s access to other persons, telecommunication devices, or transportation for the purpose of isolation.
    2. Generally, domestic assault in the third degree is a class A misdemeanor. If the actor has pleaded guilty to or has been found guilty of domestic assault in the third degree more than two times, that person will be charged with a class D felony for the third or any subsequent commission of the crime of domestic assault.
  1. Is an Arrest Mandatory When Police are Called?
    1. Missouri has an “Almost Mandatory” arrest law concerning assault and domestic assault since 1989. Under this law, a police officer responding to a domestic assault scene is encouraged to arrest the person the officer has probable cause to believe is the “primary physical aggressor.” This means that the officer can use discretion when responding to a domestic assault call. If no arrest is made, the officer must file a written report explaining why no arrest was made. If the police agency responds to the same address within 12 hours, an arrest becomes mandatory.
  1. Will the Prosecutor Drop the Charge at the Victim’s Request?
    1. In all criminal cases, the plaintiff is the public (e.g. City, State, or United States) and the defendant is the person being accused of the crime(s). Only in civil cases does the plaintiff become the alleged victim. With that being said, the alleged victim in a domestic assault case does not have discretion regarding criminal charges. Many prosecutors have recently implemented “no-drop” policies in domestic violence cases. This means that the prosecutor will not dismiss a domestic violence case against the alleged abuser even though the alleged victim requests it to be dismissed. Prosecutors have adopted “no-drop” policies regarding domestic assault to protect alleged victims of domestic assault. The policies are put in place to prevent alleged victims from being coerced into asking the prosecutor for a dismissal by the alleged abuser. 
  1. Why is My Bond so High?
    1. Courts prioritize protecting victims in these cases. The Crime Victim’s Rights Amendment (1992) to the Missouri Constitution granted judges the express power in felony and misdemeanor cases to deny bond entirely, or set it extremely high, in any case where the alleged suspect poses a danger to a crime victim or the community. Additionally, the amendment gives the alleged victim the right to be notified when the alleged abuser is released from jail. Bonds are typically higher for any crime considered to be violent.
  1. Why is My Domestic Assault Case a Felony?
    1. Across the nation, states are taking steps to reduce domestic violence. In Missouri, lawmakers have changed the law to make domestic assault in the second degree a class C felony. These incidents involve allegations of physical injury, deadly weapons, dangerous instruments, or choking. If these acts are committed by a stranger, they are generally charged as a misdemeanor. However, if the state is able to prove a social relationship of a romantic or intimate nature between the alleged victim and alleged abuser, the charge shifts from an assault charge to a domestic assault charge, and goes from being a misdemeanor to a class C felony.
  1. What Happens If the Victim Does Not Want to Cooperate?
    1. Prosecutors often assume that the main reason an alleged victim does not want to cooperate is fear of retaliation by the suspected abuser. Therefore, additional efforts might be made by the prosecutor to force the alleged victim to appear and testify or provide additional evidence.
  1. Can My Spouse be Forced to Testify Against Me?
    1. In Missouri, a battered spouse may choose whether they will testify about the partner’s alleged abuse. The prosecutor cannot require the spouse to testify. However, the prosecutor may use “hearsay” statements, such as 911 recordings, as a method to present the alleged victim’s original complaint to a jury.
  1. Can a Victim Refuse to Testify by “Taking the Fifth?”
    1. Contrary to popular belief, the Fifth Amendment only applies in circumstances in which the individual could potentially incriminate himself. This means that one cannot simply “Take the Fifth” when one does not want to testify for any reason. Fifth Amendment protections only apply when the individual’s testimony will incriminate them. However, even in these circumstances, the prosecutor may attempt to force to the witness to testify by granting prosecutorial immunity.
  1. Can a Victim Be Held in Contempt of Court if They Refuse to Testify?
    1. The court may order a witness to testify if the witness cannot successfully invoke the spousal or Fifth Amendment privilege. Then, if the witness refuses to testify, the witness may be found to be in contempt of court, which could include jail time and fines. The court may also subpoena witnesses, and deliberately ignoring one of these subpoenas could cause contempt of court charges to be filed against that individual. Therefore, an alleged victim who chooses not to cooperate in the prosecution of the alleged abuser may become the target of punishment by the legal system. It is a good idea for witnesses to retain an attorney for these matters.
  1. What Happens if a Witness Doesn’t Show Up for Court?
    1. Generally, the goal of the prosecutor is to protect alleged victims, but if a witness decides not to show up to court, the prosecutor may decide more drastic measures are needed. If a witness ignores a subpoena, they may face contempt of court charges. Moreover, in rare circumstances, a witness choosing to ignore subpoenas may be subject to body attachments (e.g. an ankle monitor) to assure his or her presence in court.
  1. Can My Defense Attorney Advise Victims and Witnesses?
    1. Victims and witnesses should retain their own attorneys for hearings and court proceedings. An attorney cannot ethically tell an alleged victim or witness to lie about his or her testimony or to assert spousal or Fifth Amendment protections. Domestic violence cases are rife with ethical issues for defense attorneys—it is best for the attorney to stick to the interests of his or her client.
  1. Are the Victim’s Prior Statements Admissible in Court?
    1. In situations in which the original story of domestic violence is recanted, the prosecutor may call additional witnesses to testify to the original statements. This is not an uncommon occurrence; the victim changes their story from an incident of domestic violence to an incidental accident (E.g., the victim originally said they were punched in the face, now they say they tripped and fell). Prior inconsistent statements are usually admissible as substantive evidence to show the alleged victim’s actual statements to police or family members immediately after the incident. 
  1. What are Excited Utterances?
    1. Excited utterances are a hearsay evidence exception in Missouri. They are statements made by a witness “following a startling or unusual occurrence sufficient to overcome normal reflection such that the ensuing declaration is a spontaneous reaction to the startling event.” State v. Turner, 420 S.W.3d 666, 669 (Mo. App. E.D. 2014). Furthermore, “the statement must disclose something done, seen or heard by the speaker in the course of the accident.” Straughan v. Asher, 372 S.W.2d 489, 496 (Mo. App. 1963). These statements might be used by prosecutors when a witness has become unavailable by asserting spousal or Fifth Amendment protections.
  1. Why Does the Prosecutor Want Medical Records?
    1. Another exception to the hearsay rule is statements made to a medical professional who provided treatment to injuries resulting from the dispute. If a domestic assault case involves an uncooperative witness, prosecutors may still try and make the case by obtaining medical records via a signed released or by investigative subpoena.
  1. Why is the Prosecutor Asking the Victim for a Sworn Statement?
    1. If a witness or victim becomes unavailable due to spousal or Fifth Amendment protections, testimony given prior to becoming unavailable is still admissible to the court. If a prosecutor is concerned that a witness or victim may become uncooperative in the future, he or she may try to get the witness or victim to make a sworn statement to a certified court reporter early in the litigation process.
  1. Do Experts Testify in Domestic Assault Cases?
    1. The use of expert testimony has expanded in child abuse cases and cases regarding defendants claiming self-defense in battered spouse syndrome cases. Experts have been used to point out common behavior for domestic abuse victims; failure to leave a violent relationship, a delay in reporting an assault, or an abrupt/unusual recantation or refusal to testify. While experts have been able to provide testimonial evidence about the behavior of victims, experts are not allowed to testify to the truthfulness of a particular witness, defendant, or victim.
  1. Do My Prior Crimes Matter for My Domestic Assault Case?
    1. Yes, evidence that the defendant has physically abused a victim in the past is usually admissible to prove the “animus” of the defendant towards the victim. In Missouri, evidence of other crimes is “legally relevant when its probative value outweighs its prejudicial effect.” 
  1. Can I Own a Gun After Being Convicted of Assault or Domestic Assault?
    1. The Lautenberg Amendment of 1996 banned the shipment, transport, possession, and use of guns or ammunition by individuals convicted of misdemeanor (or felony) domestic violence or by individuals who are under a restraining (protection) order for domestic abuse. Under the 1968 Gun Control Act, people convicted of a felony are prohibited from owning a firearm.

In Missouri, some domestic abuse cases are resolved with a suspended imposition of sentence, or SIS probation. A suspended imposition of sentence usually does not count as a conviction, and, therefore, would not bar the possession of firearms.