While reviewing the North Carolina General Statute 50B-1 which defines domestic violence, it occurred to me the definition is not the clearest. Let’s take a minute to look more closely at the domestic violence statute (N.C.G.S. 50B-1).
First domestic violence occurs only between people that have, or have had a personal relationship. A personal relationship is defined as being one of the following: current or former spouse, persons of the opposite sex living together, persons who have a child together, persons of the opposite sex who are in a dating relationship or have been in a dating relationship, persons related as parents and children, including people who are acting in the capacity as a parent of a child or are a grandparent.
As you may have noticed Domestic Violence does not include within its definition; strangers, same sex partners, or acquaintances. People who fall into one of these categories and who have been victims of violence should not seek protection under the Domestic Violence statute as it is not an appropriate remedy.
Now that we know who is and who is not protected under the Domestic Violence statute, the next issue we need to examine is; what exactly is Domestic Violence?
Domestic Violence is defined as: attempting to cause bodily injury or intentionally causing bodily injury. This is simple enough. For example, you swing a fist at your partner with the intent to hit them across the face, or you actually do hit them, then you have caused bodily injury or have attempted it. In the alternative, it is also the action of placing the victim, a member of the victim’s household, or family member of the victim’s household in fear of imminent serious bodily injury; or continued harassment that rises to such levels to inflict substantial emotional distress. Examples of this might be making the threat to kill your spouse and having a gun in your possession while doing so.
An often confusing area of the law is defining “fear of imminent serious bodily injury”. What is important to understand is that this is not an objective standard. This means there are no standard parameters which define being in fear of imminent serious bodily injury. Instead, the courts have adopted a “subjective test”. A subjective test means the “fear” standard is based upon and viewed through the eyes of the victim and his or her perception. This is critical, especially when you are preparing for court. I believe, and some might disagree, that this is the most often overlooked issue in court. You should always have your attorney or advocate, if you have one, reinforce to the court that this fear is viewed through the eyes of the victim. Now, having said that, this does not mean you can say anything and this will pass as a reasonable subjective fear. The case law is all over the place on this, and you really need to be aware of your facts and how you present them to the court. I sound like a broken record, but a good attorney or your local domestic violence advocates can help you with this. Facts are everything in domestic violence.
Domestic violence is often a highly emotionally charged experience, and most attorneys and advocates who have practiced in this area, have seen good cases get dismissed and bad cases be upheld. Credibility and evidence are what you need to successfully protect yourself and your children, if applicable. Nothing is more damaging than over-reaching, exaggerating, or using domestic violence as a weapon against the opposing party to gain advantage. If you are a victim of domestic violence seek help and seek it immediately. We are very fortunate in our area to have wonderful resources available to help victims of Domestic Violence. If you believe you have been wrongly accused of domestic violence, you should seek competent legal advice. Perpetrating domestic violence is often as harmful to a family as wrongfully accusing another family member of domestic violence.
Christoher Rahilly practices domestic and family law at The Twiford Law Firm, P.C.- Contact him at 252-338-4151