When an individual uses force or violence upon his or her intimate partner, he or she may be charged with the California domestic violence crime of battery and may be sued civilly for this “tort” (the civil term for charge or wrong) by his or her intimate partner for monetary damages as well. Within the gay, lesbian, bisexual and transgender community, intimate partners are partners that are or were joined in a civil union, partners who have children together, partners who are or were living together and partners who are or were dating.

Procedure is the biggest difference between the civil court process and the criminal court process. In a criminal domestic abuse case, it isn’t the complaining witness or victim who “presses charges,” but is the prosecuting agency, usually the District Attorney’s Office or sometimes the City Attorney’s Office that actually files the charges. In a civil case, the complaining witness (who is known as the “plaintiff”) is personally in charge of suing the accused. In a criminal trial, all twelve jurors must find the defendant guilty in order to convict and must do so following the “beyond a reasonable doubt” standard, which is the highest burden of proof, only used in criminal trials. In a civil trial, only three-quarters of the jury must agree that the defendant is liable in order to hold him or her accountable and are only held to the “preponderance of the evidence” standard, which only requires that the jury believe that it is more likely than not that the defendant battered his or her partner.

In a criminal court case alleging battery as a DV crime, the prosecutor must prove that the accused individual used force or violence upon another, that the force or violence was willful and that the accused and his or her accuser were intimate partners at the time of the offense. If convicted of this misdemeanor, the defendant faces up to one year in the county jail and a maximum $1,000 fine. If, however, the accuser suffered a serious injury as a result of the defendant’s use of force or violence, the accused faces this charge as a felony, punishable by up to four years in the state prison.

In a civil court case alleging the tort of battery, it is not required that the parties be intimate partners, only that there was an intentional offensive or unconsented-to contact inflicted by the accused. If, however, the accuser suffered from an injury, he or she could additionally sue his or her intimate partner for the tort of domestic violence. Under either scenario, if the defendant were proven liable, he or she would be required to pay money to his or her partner but wouldn’t face jail or prison. Civil monetary damages come in three forms: general damages, special damages and punitive damages. General damages are awarded for injuries for which a dollar amount can’t be calculated - pain and suffering are the most common type of general damages. Special damages cover the accuser’s out of pocket expenses that were incurred as a result of the alleged incident. Punitive damages are awarded above and beyond general and special damages and are imposed to punish the defendant’s malicious conduct.

In addition to monetary damages, an individual found liable for committing the tort of battery will also have a civil harassment restraining order issued against him or her, naming the battered person as the protected party. This order prevents the accused from being within a certain distance of the plaintiff and prohibits further abuse and any future harassment or threats.

The trusted, GLBT supportive criminal defense lawyers at the Kavinoky Law Firm are here to help with an intimate partner abuse battery charge and have successfully defended countless individuals charged with the same. They can also provide civil attorney referrals for the individual who is also being civilly sued for an alleged battery. Contact them today for a free consultation.