Attorneys Marc Lopez and Anthony Benitez recently discussed crimes of domestic violence in the State of Indiana. What follows is a lightly edited transcript of their conversation.
Marc Lopez
Domestic violence isn’t a fun topic, but it’s something that we deal with at this law firm on a regular basis.
Attorney Benitez, what is the most basic crime of domestic violence you can be charged with?
Anthony Benitez
In the State of Indiana, domestic battery starts as a Class A misdemeanor, which carries a maximum sentence of one year in jail.
Normal battery—one person shoves another person—starts as a Class B misdemeanor, which carries a maximum sentence of 180 days in jail.
Marc Lopez
So domestic battery is distinct from battery, correct?
Anthony Benitez
Yes, and it’s a little more serious, as well.
Marc Lopez
What is the difference between battery and domestic battery?
Anthony Benitez
There has to be some sort of family or family-type relationship for a person to be charged with domestic battery. This can mean a person and their significant other, whether that’s you and your girlfriend, you and your boyfriend, you and your baby mama or daddy, or whoever you’re involved with.
Marc Lopez
So rude, insolent touching, accompanied by the types of relationship you just mentioned—that can lead to a domestic battery charge?
Anthony Benitez
Yes, it can. And again, domestic battery starts as a Class A misdemeanor.
Marc Lopez
So the next up from an A misdemeanor would be a Level 6 felony. How does that happen?
Anthony Benitez
The most common way for a domestic battery charge to become a Level 6 felony is for there to be a child present. If a child can see or hear the offense, that automatically makes it a felony.
It’s also going to be charged as a Level 6 felony if the victim suffered moderate bodily injury, or if the defendant has a previous, unrelated conviction for battery.
Marc Lopez
Moderate bodily injury is a somewhat recent creation of the legislature and it’s all over the place. It used to be, there was injury or there was serious bodily injury, and the ways to demonstrate serious bodily injury were pretty obvious.
Now we have moderate bodily injury—which supposedly means the victim suffered “substantial pain”—but in practice can mean whatever the prosecutor wants it to. And things can always get worse.
Anthony Benitez
That’s right. If you use a weapon or if you batter a pregnant person, that can be charged as a Level 5 felony. These are very serious charges. The maximum sentence for a Level 5 is six years in prison.
Marc Lopez
You can also be charged with a Level 5 felony if you have a previous conviction for domestic
battery against the same individual. You don’t need to use a weapon, and there don’t have to be any children around. You can face as many as six years in prison just for repeating the same mistake.
As an aside, any time you’re using a weapon, the State is going to try and charge you with more things, such as battery with a deadly weapon. These statutes are interpreted very broadly, so charges involving a weapon are always going to be serious.
Any parting words?
Anthony Benitez
Always plead the 5th!
