April 11, 2018

You Do Not Have to Get Hit. Understanding the misnomer in the term “Domestic Violence”

portrait of crying woman with smudged makeup

 

The term “domestic violence” is misleading.  Why?  Because violence is in no way required to satisfy the requisite need for a Domestic Violence Restraining Order (DVRO).

Under the Domestic Violence Prevention Act (DVPA), as well as related case law, actual violence is not required to establish the need for, and right to a restraining order.  This is a common misconception.  I often hear the most egregious stories of abuse: mental and emotional, and when I press my client as to his/her need for a DVRO, I normally hear, “Well, I don’t know. He/she did not hit me.”  There is this dangerous mistaken belief that because actual violence is not occurring, the situation is not serious or severe enough to warrant a DVRO.

“Abuse,” as defined by the DVPA and codified in the California Family Code § 6203, is broad.  It is broad for a reason.  Abuse has many faces: emotional, psychological, financial, stalking, and in the age of technology, it has a face online, especially in social media.

“For purposes of this act, ‘abuse’ means any of the following:

  1. a)      Intentionally or recklessly to cause or attempt to cause bodily injury;
  2. b)      Sexual assault;
  3. c)       To place a person in reasonable apprehension of imminent serious bodily injury to that person or to another; or
  4. d)      To engage in any behavior that has been or could be enjoined pursuant to Section 6320.”

What is important to note is that Section (c) of the Code refers to what is “reasonable.”  Reasonable triggers the question: What would an average person in same, or similar circumstances, find threatening, to the extent that they would fear they, or someone else, will be seriously harmed.

Section (d), takes the definition even farther.  It expands the perception of abuse to encompass other violent, and non-violence behaviors, including “disturbing the peace.”  The Court in In re Marriage of Nadkarni explained that “disturbing the peace” may be properly understood as conduct that destroys the mental or emotional calm of the other party.”

This is because the term domestic violence has word “violence” in it.  Please remember, no actual violence is required.

If you believe you, and or your children, are in an abusive environment, please contact someone for help.  There are many resources available for support, guidance and actual assistance to help you protect yourself and your children.  Your team at Mendes Weed is here to help.  In addition, below are some resources to get you started:

The tips and materials provided on this page are for informational purposes only, offered as public service. No information on this website should be considered legal advice or used as a substitute for legal advice. For legal advice, you should contact an attorney directly.