Domestic Assault, Felony Assault, Crimes with alleged Domestic Relationship
By domestic crime attorney Thomas Gallagher. This page is about Minnesota domestic assault and other domestic relationship-based criminal charges, penalties, and defenses. And it explains the services of Domestic Defense Attorney Thomas C. Gallagher, of GALLAGHER CRIMINAL DEFENSE.
Thomas Gallagher has represented defendants and witnesses (prosecutor’s victims) in these cases since 1988.
His education and experience help him be an effective domestic assault attorney. His education focus was Psychology, and the study of family violence issues. Attorney Gallagher’s experience includes exoneration of the falsely accused. And he’s worked as Respondent’s counsel in mental health court (chemical dependency and mental illness issues).
“What is a domestic crime?” The Relationship Element
What makes these criminal charges “domestic?” Most, if not all, “domestic” crimes are variations of generic crimes but include a “domestic” relationship. So, the relationship between the accused and the prosecutor’s victim is what makes it “domestic.”
Minnesota statutes define the types of relationships that qualify as domestic in a broad way. For example, prosecutors filed charges against two male college roommates in a love triangle fighting over a girl. The “domestic” element was based on being roommates, in one of Gallagher’s cases. (Don’t worry; Domestic Crime Attorney Gallagher helped that client win the case.)
Types of domestic criminal charges
What is the difference between misdemeanor domestic assault & 5th degree assault?
Prosecutors can charge a minor domestic assault either as Misdemeanor domestic assault, Minn. Stat. §609.2242, subd. 1, or as a 5th degree assault, Minn. Stat. §609.224, subd. 1. A misdemeanor 5th degree assault does not include a relationship element in the statute. So a prosecutor could charge the non-domestic crime even where there is a domestic relationship. Your domestic defense attorney should pay attention to these distinctions.
“Is domestic assault a felony in Minnesota?”
Domestic assault can be a felony in Minnesota. Minnesota has several statutes prosecutors can use to charge a felony domestic assault.
Minnesota’s specific domestic assault crime statute, Minn. Stat. §609.2242, creates crimes at the misdemeanor, gross misdemeanor, and felony levels. The gross misdemeanor requires proof of “a previous qualified domestic violence-related offense conviction” within ten years.
The felony requires the crime to be “within ten years of the first of any combination of two or more previous qualified domestic violence-related offense convictions.” Domestic Defense Attorney Thomas Gallagher has successfully dismissed felonies by attacking the enhancing priors.
Minnesota has five degrees of assault crimes. Prosecutors can charge assault fifth degree as a misdemeanor, gross misdemeanor, or felony. Minn. Stat. §609.224. The gross misdemeanor and the felony levels require one or more “previous qualified domestic violence-related offense convictions.” And the look-back periods are either three or ten years.
The first degree through fourth degree assault statutes do not require prosecutors to prove a relationship element. The exception is some third degree assault charges. However, a prosecutor must prove “a past pattern of child abuse” against the same minor, under Minn. Stat. §609.223 subd. 2. And a prosecutor must prove assault of “a victim under the age of four, and causes bodily harm to the child’s head, eyes, or neck, or otherwise causes multiple bruises to the body,” under Minn. Stat. §609.223 subd. 3. Both are felonies.
Non-domestic criminal statutes
Domestic violence charges can include not only domestic assault charges, but also every degree of felony assault, misdemeanor assault (gross misdemeanor and simple misdemeanor assault).
Some criminal statutes require the prosecutor to prove a domestic relationship. But most do not. So, a prosecutor can charge a non-domestic crime even where a domestic relationship existed.
Beyond assault, what other crimes do prosecutors charge in domestic fact situations? They include “terroristic threats,” interference with an emergency call (interference with a 911 call), and criminal sexual conduct. None of those require relationship proofs.
What about child abuse crimes? They require proof of age, but not of relationship. Abuse of any child can be a crime, regardless of relationship. These include child neglect, child endangerment, and other child abuse crimes.
Though often associated with domestic cases, these crimes don’t require relationship proof:
- stalking and harassment crimes,
- violation of an Order for Protection (OFP), or a
- Harassment Restraining Order (HRO) violation
- violation of a Domestic Abuse No Contact Order (DANCO)
For a deeper look, see our page Minnesota domestic crime statutes.
Defenses & Your Domestic Defense Attorney
Most defense apply to every type of criminal case. But some are specific to domestic criminal defense. Your domestic defense attorney should know them all well.
Self-Defense: Many domestic assault cases involve a defense based upon Minnesota self-defense law.
False Reports: False accusations are common. The accuser’s strong emotions at the time of the police report may distort them. And the relationship history can influence them. Almost always, the people were using alcohol. And the alcohol influences emotions, perception and reporting of events.
Fifth Amendment Privilege: A prosecutor may charge both parties in a mutual assault. Or they might pick one. In this situation, an effective defense can often involve getting both parties their own witness attorney, to checkmate the prosecution. Other defenses are available as well.
Achieving Good Outcomes – What Is At Stake
These are serious cases, with severe consequences. The consequences affect not only the accused, but also all the people connected to the accused. A successful prosecution of one of these charges, damages all involved. The resulting reduction in annual income lasts for decades. And we see reduced child support, deportation consequences, etc.
What you can do
What is the most important thing you can do to protect yourself and your family? Retain the best domestic defense attorney possible.
With three decades experience winning cases, Domestic Crime Attorney Thomas Gallagher provides his clients with the best possible defense.
Gallagher works on his clients’ cases personally. He does not refer them to an Associate “on the team.” When you hire him, you’ll get the real deal. You get Gallagher himself — personal representation.
As you can see, Thomas Gallagher is rated one of best criminal defense lawyers in Minnesota, by peer reviews, as well as 5 star reviews (bottom of page). Put his experience to work for you. You can win. And Domestic Defense Attorney Thomas Gallagher can help make sure that happens.
Things change – alcohol
Domestic-related criminal charges are some of the most serious, and potentially unreliable claims made in the courts today. They have the highest rate of dismissal of any type of criminal case.
Your choice of domestic defense attorney can be the deciding factor between conviction and winning.
“Hell hath no fury like a lover scorned?” Is there truth in that ancient idea? Emotions can run high, especially with alcohol, in relationships as people try to work out their conflicts.
Motives can change: Sometimes we feel hate, revenge, “sour grapes.” And we can feel anger. Power and control issues can turn a person against their loved one – even motivate a false claim against them. We may regret a hot moment, in a 911 call or an initial report to responding police officers. We may later recant an initial false report.
As much as we hate to think it, sometimes a person coldly plans a strategy to “beat” the other. A divorce or child custody battle may be coming or pending in court.
Some make a false claim as a twisted way of maintaining a connection, though a destructive one.
Cast in the Victim Role
Often the complainant (prosecutor’s “victim”) begs and pleads with the prosecuting attorney to drop the charges against their loved one.
The first report to police may have been untrue, or misunderstood. Or, the complainant may simply not want their loved one prosecuted. Typically the prosecuting attorneys do their best to ignore these pleas as long as they can.
This, despite the victim’s rights statute in Minnesota requiring prosecuting attorneys to listen to “victim’s” desired outcomes.
Complainants often go to a domestic defense attorney like Gallagher for help, and for a voice in the legal process. Attorney Gallagher helps either as defendant’s counsel, or as the witness attorney.
The Government as the Abuser
How does a prosecutor’s taking power away from “victims” help to empower them to control their own lives? Is the Government an “Abuser” – making their “victim” powerless; weakening them; teaching them learned helplessness?
Is this really a situation of governmental paternalism? Is “Big Brother, taking over and controlling the lives of passive “victims” against their will, against their wishes, and against their interests?
Refusal to drop the No Contact Order, or DANCO
How do the government’s lawyers disempower their “victims? ” Just look at the pretrial “no contact order” and the Domestic Abuse No Contact Order (or “DANCO“). Prosecuting Attorneys generally resist dropping them, despite pleading from their “victims.” For information about how to get rid of them, see our linked article: How to Get Rid of a Domestic Abuse No Contact Order in Minnesota.
Conflict of Interest
Some prosecutors would have it both ways. They represent the State, and pretend to represent the victim’s interests in court.
On the one hand, they say: “we don’t represent the victim. So we don’t have to drop the no contact order or the charges.”
And on the other hand, they undermine and try to stop their “victim” from directly addressing the judge. They don’t want her to plead for dropping the no contact orders and charges. And they do so even as they claim to represent the “victim’s” interests.
Of course, that the prosecutor is “not the victim’s lawyer” is an admission that they don’t represent her interests. This is apparent when prosecutors argue against what the “victim” is pleading for.
Minnesota’s Victims Rights statute has giant loopholes for prosecutors. The ethics rules for lawyers addressed this kind of conflict-of-interest. But so far courts have not stopped it. Nor have courts created an official role for the victim or his or her attorney to prevent the conflict. We must take the initiative. And “the victim” must appeal directly to the judge, to have a chance.
Domestic Defense Attorney Gallagher has no conflicts of interest, since he either represents the defendant, or the alleged victim.
Holding the Government to its Burden of Proof
Since the burden of proof rests with the prosecution, what actual evidence is there? Is there nothing more than a naked accusation, without corroboration?
The jury is the last defense of human rights and liberty under the Constitution. Our job is to challenge the prosecution case and expose its weakness. We test the theory that the accused is innocent, given the evidence.
A prosecutor can convict a person of a domestic crime on the uncorroborated claims of a single witness. That witness may have an axe to grind; an agenda. You need the best defense possible to prevent that.
Avoiding the Consequences of a Conviction
A good domestic crime attorney can help you and your family avoid the severe consequences of a conviction.
Beyond jail or prison, a person facing domestic crime charges, a lifelong criminal record is a severe consequence.
A conviction is much worse. This can result in:
- Reduction in annual income earning potential, for life; lost job opportunities (individual and family); reduced child support
- Professional and occupational license loss
- Increase in health and other insurance premiums
- Damage to credit report and rating
- Deportation or Removal from the United States (of non-citizens, including “Permanent Residents”)
- Gun and firearms civil rights loss
- Public criminal record
Domestic Defense Attorney experience
Attorney Gallagher has defended people and their families from domestic-related criminal charges (claims) for three decades, including:
- Domestic Assault claims. Assault First, Second, Third, Fourth and Fifth Degree charges
- Violation of an Order for Protection (OFP) claims
- “Terroristic threats” claims
- Kidnapping and false imprisonment claims.
- Felony strangulation assault claims
- Murder claims
- Interfering with a 911 Call, interfering with an emergency call, claims
- Child Abuse or Neglect claims; Malicious Punishment of a Child
- Minnesota Criminal Sexual Conduct
Domestic Defense Attorney Thomas Gallagher has been successfully defending people from domestic crime charges since 1988. Give Gallagher a call to discuss your criminal matter: 612 333-1500