Part of the frustration with the law is not just the complexity, but also the overlap certain offenses have. Domestic violence is one of the primary examples as the relevant sections of the official state sources touch on both the penal code and the family code. Even further complicating matters, there is no specific penalty for “Domestic Violence” even though it’s among the most common offenses in the state and the most well known. Instead of the term Domestic Violence, Texas has a different classification of penalties for ‘Family Violence’ and ‘Assault.’
Essentially the Domestic Violence or Domestic Assault are combinations of terms put into use by the state penal code and family code where applicable. When necessary, the state invents phrases, such as ‘Aggravated Assault’, to implement specific penalties or regulations for that kind of offense. Domestic violence is therefore somewhat a catchall and we’ll try to break the concept apart.
The Varieties of Domestic Violence
There are quite a few sections, and even entire chapters, of both the Texas Penal Code and the Texas Family Code that could fit here. For now, we’ll just address three in particular.
The reality is that this is simply the penalty for assault in general. The language is almost identical to aggravated assault (below) but is considered a more general, less serious version of assault than aggravated assault. You can be charged with assault if “knowingly, or recklessly causes bodily injury to another (including spouses).” Additionally, if you threaten someone with imminent bodily injury it has to be clear that most reasonable people would take the threat as both real and imminent.
Moving on to Sec. 22.02 we arrive at Aggravated Assault this is a more serious offense, regardless of whether one is a family member or not than the previous one. Such an offense as defined in subsection (1) as one that: “causes serious bodily injury to another, including a person’s spouse” (we bolded, not the official state code).
Continuous Family Violence
This is more straightforward as it pertains to an explicit family code of violence that punishes people, and takes actions to prevent further incidents, on anyone who commits multiple (two or more) offenses within 12 months.
How Common is Domestic Violence?
We spent a great deal of time looking over the literature on domestic violence and found a great deal of variation across different communities. A highly cited 2002 study, for example, found that “two-fifths of women had experienced domestic violence.” However, that study, though it had a fairly large sample, was a sample taken of women in Ireland and one might fear extrapolating to other developed nations.
That would be a good argument if research has not been consistently finding similar numbers across different countries and states. However, given there’s no exact charge for Domestic Violence or Domestic Assault in Texas (there’s just assault and family violence merged) it’s difficult to make a one-to-one connection between incidence rates across states and nations. A constant theme in the legal space, using different words to describe different actions makes comparisons difficult.
What we do know is that the Covid-19 pandemic, and the resulting quarantine, greatly exacerbated incidence rates of domestic violence. A 2019 study, examined the impact of Covid-19 on domestic violence in Dallas and the results were disturbing. In the days after the stay-at-home order was put into effect, the authors found good evidence for an “estimated 3.4 more domestic violence incidents, increasing from 35.4 to 38.8.”
However other figures hint at even larger effects. Calls to national hotlines for domestic abuse prevention increased by upwards of 20%. Meanwhile, official abuse numbers may have been down but that is widely believed to be a product of an inability to report. For children and spouses, it’s typically when the victim goes to school or work that the abuse is noticed by others and reported. Shelter-in-place orders have taken that important reporting option off the table.
Frequency in Texas
In just Texas, and before the Covid-19 pandemic, 40.1% of Texas women and 34.9% of Texas men report having experienced intimate partner physical violence or stalking according to the National Coalition Against Domestic Violence. The same study reports that in 2016, there were 146 incidents of femicides, or the intentional killing of females (women or girls) explicitly because they are female.
Frequency Across The Country
Using the same research and terminology as the above, we find that Texas rates are similar if not higher, than national averages. In total, Americans report “1 in 4 women and 1 in 9 men” to be victims of some type of intimate partner violence. This total also includes stalking which is open to some subjective interpretations of the facts. We’ll update both of these statistical sections as more post-pandemic statistical analysis is completed. We try to keep data and information up to date, but the last two years have been unprecedented and may well skew the data.
What Family Members Count as Family Violence?
The state refers to the family code here, explicitly 71.003 and the state chooses to keep that definition for all related matters, about constitutes the Family in the phrase Family violence. The state uses this definition so that way it can arbitrate and punish these matters differently (family court) than other offenses.
- Any husband or wife whether they be currently married or not.
- Anyone who shares parental obligations of the same child. Emphasis on same.
- In regards to the above, any foster child and parent combination falls into this category.
- Any relationship between two people that is connected by blood, marriage, or adoption.
- Roommates or any shared housing space.
- Anyone that currently or once dated. Obviously this, like the other points, comes with a burden of proof.
What Does Family Violence Mean?
As we referenced above, this law is a little tricky conceptually. The idea is that an action could be the same as another action (say the hitting of a person that causes an injury) however results in different outcomes (penalties, fines, jail time..etc). While counterintuitive, it needn’t be, considering that DWI penalties can be more severe if one has a juvenile in the care with them. This is because there’s more at stake and their offense shows a greater degree of negligence.
With that in mind, Texas has three criteria for what constitutes family violence. If you’re following along with the official text, it’s 71.004 of the family code.
(1) An act by a member of a family or household against another member of the family or household that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the member in fear of imminent physical harm, bodily injury, assault, or sexual assault, but does not include defensive measures to protect oneself.
(2) Abuse by someone in the family that is directed at a child of the household (or family).
(3) Any example of Dating Violence, see below, as is defined in Section 71.0021. Yes, the Texas Family Code makes a special distinction between violence between family members and violence between people who are dating. However the criminal penalties, even further below, will be treated similarly.
Domestic Violence While Dating?
This may be grounds for an entire page on the subject, but the short answer is yes. The state, as outlined in section 71.0021, does consider people who are dating to be considered under the umbrella of family law in regards to domestic violence. The problem, that not just states have, is identifying what constitutes a relationship.
For this the state considers three factors:
(1) The length of the relationship.
(2) The nature of the relationship.
(3) How often, the term the state uses is frequency, the two interacted.
Penalty if Convicted of Domestic Violence
To put it simply, the penalties for domestic violence will depend on the nature of the charge. If convicted, you could receive any of the four outcomes:
- Class A misdemeanor: Up to 12 months in jail (possible fine of $4,000).
- Third-degree felony: Anywhere between two, minimum, and ten years, maximum, in prison (also the fine is now up to $10,000 which will be the maximum for the next two).
- Second-degree felony: 2-20 years in prison and a maximum fine of $10,000
- First-degree felony: 5-99 years in prison and a maximum fine of $10,000
Additionally, the conviction becomes part of a criminal record. Domestic violence charges impact your ability to vote and look for jobs. If it includes a sexual offense, and you get convicted, then you may also need to register as a sex offender.
Defending Yourself From Abuse Charges
To be clear, we are not a law firm and we are only stating what relevant and useful information may exist on relevant issues. That being said, being falsely charged with abuse is a major issue in the state of Texas and around the country. No matter what the crime is, you always have the right to defend yourself. However, the law about how to go about doing so can be tricky.
As we discussed in our article about Texas Divorce Laws, should a divorce reach the trial phase accusations from one spouse to another tend to emerge with regularity? Though we hate to admit it, given the scope, potential penalties, and emotional charge inherent in such cases, it’s best to consult an attorney if ever charged with domestic violence.