What Is a "Family Member" for an Assault Charge?

The term "family member" is much broader than people realize when it comes to assault charges in Virginia. Many people find themselves facing charges of assaulting a family member for events involving persons with whom they have had only tenuous and distant relationships.

Other than perhaps DUI, the most common charge that I see in Virginia criminal courts is assault on a family member under Virginia Code 18.2-57.2. Usually by the time a client comes to see me regarding this charge, the parties have worked out their differences, and neither wishes any harm to the other. The problem is that by then the Commonwealth's Attorney is involved in the case, and they have a tendency to substitute their parochial judgment for that of the parties and will prosecute the case despite the alleged victim's wishes to the contrary. All is not lost though, this is where an experienced attorney who knows the nuances of the Juvenile and Domestic Courts can navigate the process and aggressively attack the Commonwealth's case. There are a couple of things to consider though about these cases, which are generally constant regardless of the specific facts.

For one thing, the term "family member" as contemplated in the statute is much broader than most people would think. When people hear the term "family member", they typically think of immediate blood relatives and spouses. But the definition of "family member" in Virginia Code 16.1-228 is far broader. Not only does it include the conventional parties such as immediate family members and spouses; it also includes ex-spouses, step-parents and stepchildren, fathers and mothers-in-law, anyone with whom you have a child in common (regardless of marriage), and any person with whom you have "cohabited" in the last 12 months (for however short a period of time). As you can see, there are far more relationships that the Commonwealth will treat as familial than most people typically would.

The effect of this broad definition is significant. On the one hand, it can be somewhat advantageous, because assault on a family member charges include a provision for first offender treatment under Virginia Code 18.2-57.3. No such first offender program exists for assault charges not involving a family member. On the flip side, however, a conviction for misdemeanor assault on a family member results in a permanent and irrevocable loss of one's Second Amendment right to carry a firearm. This disability comes not from state code (Virginia tends to respect the Second Amendment in most cases), but rather from federal law under the Lautenburg Amendment. So if you are convicted of misdemeanor assault on a distant relative or former lover who qualifies as a "family member" under the Virginia Code, you permanently lose your right to carry a firearm by operation of federal law.

Assault on a family member charges are rampant in Virginia courts. Officers often feel like they have no discretion to issue warnings or to counsel troubled couples when they arrive on scene to a domestic call. Instead, the vast majority of domestic responses will result in the arrest of one or both parties. This is unfortunate, but there is much that can be done to fight these charges. If you or someone you love is facing a charge of assault on a family member in Virginia, contact our office right away! Let us fight for you while you work to save your family!

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