Strangulation, Domestic Assault and False Imprisonment: When Prosecutors Overcharge in Criminal Complaints
If not addressed, domestic violence can become deadly. Elected prosecutors will often taut this, using case studies to back it up. But at times the government is overzealous in the attempt to stop domestic violence, and will charge those falsely accused of domestic violence with additional crimes even if the evidence is weak.
If law enforcement is called to a domestic dispute, it is likely that at least one person will be charged with a misdemeanor for domestic assault. Due to changes in legislation and other initiatives, it is not uncommon for a person charged with domestic assault to also be charged with felony crimes of strangulation and false imprisonment.
What is domestic assault?
Domestic assault is an assault of someone with whom the accused is in a domestic or dating relationship. The assault can both be through intentional physical contact, reckless physical contact, an act that would put someone in fear of physical harm, or other menacing threats.
Nebraska does not distinguish between assault and battery. In other states, assault becomes a battery when there is physical contact.
Think of it this way: in a fist fight, when a person swings at another, the swing is the assault, and when the punch connects, it is a battery. Nebraska makes no distinction between the two, so a person that swings at someone and misses can be charged with assault just the same as the person who swings and connects with the punch.
However, it is important to note that words are enough to constitute an assault. In some cases, the assault is merely a menacing threat. The threat itself could be a terroristic threat, which would then be charged as a felony.
Strangulation is a felony charge that is often tacked to a misdemeanor domestic assault charge. It often occurs when the accused intentionally obstructs the accuser’s windpipe. When law enforcement sees marks on the accuser’s neck, they will assume that is a strangulation.
Another indicator police use for charging strangulation is petechia, an injury characterized by broken blood vessels in the eyes. However, petechia can be caused by things other than strangulation, such as excessive strain, crying, sneezing, and excessive amounts of alcohol or other narcotics.
In domestic assault cases, where the accuser is the instigator, they may claim they were held captive either physically or by threat and were not free to leave. This may be brought up in questioning when law enforcement asks the alleged victim if they tried to leave. If so, they may be charged with a felony.
The consequences of false allegations
Any descent investigation will be able to provide enough evidence on who the actual aggressor is in a domestic assault situation. Unfortunately, law enforcement called to a domestic altercation often do not have the luxury of conducting a full investigation. Often, they will be in crisis management mode and simply try to defuse the situation, which can lead to the incorrect person being charged.
If you are falsely accused of domestic assault, the charges could cost you not only your job and livelihood, but you may have to fight felony charges.
While first offense domestic assault is a misdemeanor that carries up to a year in prison and a $1,000 fine, strangulation and first and second-degree false imprisonment are felonies that carry the possibility of a prison sentence. Furthermore, a crime of domestic violence even if it’s a misdemeanor, prevents anyone convicted from possessing a firearm.
Furthermore, the accused often faces the possibility of losing their employment, professional license, and reputation.
If you have been charged with domestic assault, strangulation, false imprisonment, terroristic threats, or any other charge based on false allegation contact the criminal defense attorneys at Berry Law.