A domestic assault can occur when the relationship as between the alleged assault victim and the perpetrator is as follows:

1. The assault is between family or household members who lived together at the time of the alleged assault;

2. The assault is between separated spouses or persons divorced from each other and not living together at the time of the assault.

3. The assault is between persons who are parents of the same minor child, regardless of whether they have been married together at any time;

4. The assault is between persons who have been family or household members living together within the past year and not living together at the time of the assault; or

5. The assault is between persons who are in an intimate relationship or have been in an intimate relationship and have had contact within the past year of the assault.

At the outset, law enforcement must decide if the relationship exists and an assault has occurred before making a domestic assault arrest. Ultimately, it is a jury question as to whether or not the relationship existed sufficient to support the charge.

In fact, the model criminal jury instruction tracks the language of the statute fairly closely:

“1. On or about the ____ day of______,20___ , the defendant did an act which was meant to [cause pain or injury] [result in physical contact which was insulting or offensive] [place (name of victim) in fear of immediate physical contact which would have been painful, injurious, insulting or offensive] to (victim).

2. The defendant had the apparent ability to do the act.

3. The act occurred between [family or household members who resided together at the time of the incident] [separated spouses or persons divorced from each other and not residing together at the time of the incident] [persons who are the parents of the same minor child] [persons who have been family or household members residing together within the past year but not residing together at the time of the incident].

If the State has proved all of these numbered elements, the defendant is guilty of Domestic Abuse Assault. If the State has proved only elements 1 and 2, the defendant is guilty of Assault. If the State has failed to prove either elements 1 or 2, the defendant is not guilty.”

If you or a loved one has been arrested for domestic abuse assault, contact David A. Cmelik Law PLC at 319-389-1889 or www.daclawfirm.com for a free initial consultation.