Domestic Violence: Alleged Abuser

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Domestic Violence: Alleged Abuser

What is domestic violence and domestic abuse?

Domestic violence and abuse can happen to anyone: men, women and children. The military distinguishes between "domestic abuse" and "domestic violence." In both cases, the relationship between you and victim must be one of "intimate partner." This means your spouse or ex-spouse, someone you have a child with, or someone you lived with as if you were married. Domestic abuse involves emotional/psychological abuse, economic control, or interference with personal liberty. Domestic violence involves the use, attempted use or threatened use of force. How it is legally defined depends upon state law.

For more information, see the Department of Defense FAQ section:

If you are in the military and accused of abusing a family member

If you are accused of abusing your spouse, ex-spouse, person you live(d) with as a spouse, person you have a child with, or your child, you may be served with a protection order. There are two types of protection orders: a military protection order and a civil protection order.

The information here will talk about civil protection orders only. These are cases brought in a civilian court by a family or household member who is asking for a restraining order against you. A civil protection order may affect your military duties.

If you are served with paperwork to go to civilian court

If you are served with paperwork for a restraining order in a civilian court, the paperwork will include:

  • the complaint against you,
  • the court name and location, and
  • a date and time for a hearing

There may also be a temporary order prohibiting you from having contact with the person who is asking for a final order against you. Temporary orders can be issued by a court before you have any notice that your family member is asking for an order against you. Even though you were not notified before the temporary order was issued, you must follow it. Before the Court can issue a final order against you, you will have the chance to defend yourself in Court. Remember, the paperwork you are served with will give you the date, time and location of the final hearing.

If you are served with protection order papers while you are on active duty, and if your military service interferes with your ability to appear and defend the case in the time provided, you can request a postponement of atleast 90 days under the Servicemembers Civil Relief Act (SCRA).

If you are served with protection order papers and your military service does not interfere with your appearing in the case, you must go to court. If you do not go to court, a default judgment might issue against you. The provisions of the SCRA regarding default judgments will apply.

If you go to Court, you can either:

  • reach an agreement or
  • have a hearing.

You will not be appointed a JAG attorney. If you want an attorney to represent you, you will have to hire one.

At the hearing, the person bringing the case against you will go first. You have a right to cross-examine all of his or her witnesses. You will be given the opportunity to tell your side of the story. You have the right to bring your own witnesses to testify in addition to testifying yourself. The Judge will decide if you abused the person asking for an order. If the Judge finds that you did not abuse the person asking for the Order, the case will be dismissed, and no order will issue. If the Judge finds you did commit abuse, the Judge will issue an Order and will decide what the terms of the Order will be. In addition to prohibiting contact between you and the victim, the Order may address your mutual children, support, housing, and possessions. What can be included in an order will depend on the state law where the case is heard. A protection order may impact your right to possess firearms. Read more below to learn more.

Will I be charged with a crime?

That depends on the state law and how it defines crimes, like assault. In a civil protection order, the victim is bringing the case against you. In a criminal case, the State is bringing a case against you. The District Attorney's Office will represent the State. Because the people bringing the cases are different, you can have a civil protection order issued against you even if there are never any criminal charges. You can also be charged with a crime and brought to court by the State even if the victim never brings a civil protection order case against you. There are serious consequences for you if you are convicted of a "misdemeanor crime of domestic violence."

If a protection order is in place, there are penalties for violating it. What those penalties are will depend upon how you violated it and the laws of the State. You may be charged with a crime if state law allows for that.

What is a "Misdemeanor Crime of Domestic Violence?"

A "misdemeanor crime of domestic violence" must include in the state's definition of the crime the use of or attempted use of physical force or threatened use of a deadly weapon. The relationship between you and the victim does not have to be included in the state definition of the crime, but the victim must be a spouse, ex-spouse, person you have lived with as if you were a spouse, person you have a child with, or your child. The name of the crime you are convicted of does not have to have "domestic violence" in its title. A conviction is not just after a hearing before a judge or jury where you are found "guilty;" it also includes a guilty plea.

Will my service be affected?

Discharge:
Having a civil protection order issued by a civil court against you is not grounds for military discharge. Also, a criminal conviction for violating a protection order is not grounds for discharge. But, if you are convicted of a "misdemeanor crime of domestic violence," it may impact the length of your service and ability to re-enlist. Discretion rests with your commanding officer.

Firearms and Civil Protection Orders:
You might not be able to legally possess a firearm and/or ammunition if there is a civil restraining order against you. It will depend upon the relationship between you and the victim and the terms of the order. It is important to know that there is a federal law that says a protection order that is issued by a civilian court in one state (or tribal court) is enforceable in another state or tribe. This means a civil protection order issued in a state that is different from the state in which you live is still effective against you.

The Federal Gun Control Act of 1968 is a law that prohibits certain persons from possessing a firearm and/or ammunition. Possession means in your control or where you have access to it. Examples include storing a firearm in your car, home, friend's house, etc. Some of the categories of people who cannot possess a firearm and/or ammunition include a person who:

  • has a court order, like a protection from abuse order, against him or her that he or she was notified of and had a chance to participate in a court hearing, and
               -the court found that the Defendant is a credible threat to the
               physical safety of his or her intimate partner or child, or
               -the Order explicitly prohibits the use, attempted use or threatened
               use of force against an intimate partner or child that would
               reasonably be expected to cuase bodily injury, or
               -the Order restrains such person from harassing, stalking, or
               threatening an intimate partner or child of an intimate partner or
               person, or engaging her conduct that would place an intimate
               partner in reasonable fear of bodily injury to the partner or child.
  • An intimate partner is a spouse, ex-spouse, person who you have a child with or someone you lived with as if you were married.

You are prohibited from possessing a firearm or ammunition for the period of the restraining order. Once the Order expires, the prohibition is lifted. However, there are exceptions during the term of the Order. If you need a firearm or ammunition for your military service, you can possess them in the course of your official duties. But, you can only possess them at work.

Even though this exception exists under the Federal Gun Control Act of 1968, there are two situations where it may not apply. First, if the Order specifically states you cannot possess a firearm. This is because that prohibition is under state law, and the federal exceptions do not apply to state law. Second, your commanding officer can decide that you cannot possess a firearm or ammunition. If your commanding officer makes this decision, it is not grounds for discharge. If you violate the command, you can be disciplined. You can face non-judicial punishment, such as an Article 15. Punishment under Article 15 is not a conviction. It can include punitive action such as a demotion in rank, loss of pay and extra work assignments. A written reprimand can be placed in your service record. You can also face discipline under the Uniform Code of Military Justice (UCMJ), which does involve a judicial process. There will be a military investigation. You will be appointed a JAG attorney. And, if you are found guilty, possible sanctions include a court martial resulting in incarceration, forfeiture of pay, or dismissal/discharge from the military.

Firearms and a Conviction of a Misdemeanor Crime of Domestic Violence

If you are convicted of a misdemeanor crime of domestic violence, the Federal Gun Control Act of 1968 prohibits you from possessing a firearm or ammunition. Again, possession means in your control or where you have access to it. Examples include storing a firearm in your car, home, friend's house, etc. The federal prohibition is for life. There are no exceptions for work or any other reason.

Servicemembers having a "misdemeanor crime of domestic violence" conviction may not be administratively discharged solely on that basis. However, this does not preclude a commanding officer from considering the underlying acts of domestic violence, or civilian convictions, as an appropriate basis for administrative discharge.

For more information, see here.

Other prohibitions

The Federal Gun Control Act of 1968 also places a lifetime ban on possessing a firearm and/or ammunition for those persons who:

  • have been discharged from the Armed Forced under dishonorable conditions,
  • have been indicted for or convicted of a felony, which is a crime that is punishable by imprisonment for more than one year. It does not matter if the actual sentence you received is for less than one year.

There are other categories that are not discussed here.

The Federal Gun Control Act Does Not Apply

  • to major military weapons systems or "crew served" military weapons such as tanks, missiles or aircrafts, or
  • if you have the misdemeanor conviction expunged, set aside or pardoned or if you have your civil rights restored, unless the terms of the expungement, pardon or restoration of your civil rights expressly prohibits you from possessing firearms or ammunition.

Violating the Firearm Prohibition

If you violate the Federal Gun Control Act of 1968, you may be charged by the U.S. Attorney. Punishments may include a fine, up to 10 years in prison, or both

Where can I get help?

The military has a Family Advocacy Program that works with both victims and abusers.
Except for the military chaplain, what you talk to military personnel about regarding domestic abuse will not be kept confidential. See more information here and here.