Domestic Violence – Spousal Abuse

Domestic Violence – Spousal Abuse

Spousal abuse is perhaps the form of Domestic Violence seen most often; however it involves more than just husbands and wives. It is defined under 273.5 of the California Penal Code as willfully inflicting a “corporal injury resulting in a traumatic condition” on either a current or former spouse; or a current or former cohabitant; or the parent of a common child. It is a felony.1

Cohabitating is a term which describes living with another in an intimate relationship. However, is does not require that those living together consider themselves in a marital relationship, or that they necessarily have a sexual relationship. People can cohabitate with more than one person at different locations at the same time. Cohabitation only requires that a person live with another for an extended period of time in a relationship.

A parent of another’s child needs only to be the presumed parent, and there is no requirement that they be proved to be the natural or biological parent. The termination of parental rights does not change the historical fact that a person is a parent for purposes of this offense. Pregnancy does not establish parenthood within the meaning of this statute, nor does it establish the fetus as a child.

A traumatic condition, within the meaning of this offense is the result of either external or internal injuries caused by the use of physical force by a person against another through blows to the body or face, strangulation, suffocation, or other physical means. The injuries may be minor or serious and may consist of bruises, abrasions, or other forms of injuries.2  However, even if physical force is use, and there was no pain, no apparent physical injury, and no medical treatment resulted then no “traumatic condition” resulted from the assault.

Domestic Violence – Spousal Abuse

To willfully inflict an injury it must be the direct result of the use of physical force by a person against another. Where a person pushes another into an object, and in turning to run the person pushed trips and falls and suffers an injury, the act of pushing did not result in the injury therefor there was no willful infliction of a traumatic injury.

A violation of this offense results in a prison commitment of either 2, 3, or 4 years; or up to one year in a county jail, and a fine of up to $6000.3

If a person convicted of this offenses has a prior conviction for any of the following California Penal Code offenses within 7 years then the penalties are increased.4

  1. Section 243(d) (battery resulting in serious injury);
  2. Section 243.4 (sexual battery);
  3. Section 244 (assault with caustic chemicals or flammable substances);
  4. Section 244.5 (assault with stun gun or less lethal weapon);
  5. Section 245 (assault with a deadly weapon or by force likely to produce great bodily injury);

In each of these situations the punishment is increased where there is a prison commitment to 2, 4, or 5 years, however if a country jail term it remains up to one year; however the maximum fine is increased to $10,000.

A conviction for 273.5(a) that occurs within 7 years of a conviction for section 243(e) (misdemeanor- battery on a spouse, cohabitant, or other intimate) of the California Penal Code increases the maximum fine to $10.000.

If probation is granted and a defendant has been convicted of one of the offenses listed above within 7 years then the court must imposed a mandatory minimum county jail sentence as follows,

  1. A term of 15 days for one prior conviction;
  2. A term of 60 days with 2 or more prior convictions;
  3. However, if the court finds good cause it may waive the mandatory jail time.5

1 Section 273.5(a) of the California Penal Code
2 Section 273.5(c) of the California Penal Code
3 Section 273.5(a) of the California Penal Code
4 Section 273.5(e)(1) of the California Penal Code
5 Section 273.5(g) of the California Penal Code