This article was updated: Oct. 22nd, 2023
Consider this common domestic violence scenario: your spouse has assaulted you by threatening to hurt you, and battered you by kicking, choking, or punching you. Either you or someone you know calls the police, who arrive and collect evidence.
This situation scares you. You don’t wish to be abused but also don’t want your spouse to fall on the wrong side of the law. Many abuse victims get themselves in such situations and frequently ask Virginia criminal defense attorneys if they can drop an assault and battery charge against their spouse.
Whether a victim can drop an assault charge is a question that comes up all the time. It is more common in domestic assault and battery cases. But even if you are the one who took out charges against someone, it can be complicated if you want to drop those assault charges.
What is the Penalty for Assault and Battery in VA?
A simple assault charge and an assault and battery charge bear the same penalty and are classified as Class 1 misdemeanor. The penalty will generally be 0-12 months in jail, a fine of up to $2,500, and full restitution to the victim.
A first offender will, in most cases, not receive the maximum punishment unless the acts were egregious. An assault and battery charge against law enforcers, healthcare workers, judges, DOC prison officers, and certain teachers can bear more severe consequences.
How Do I Drop My Assault Charges in Virginia?
In Virginia, the police or the victim can initially take out an assault charge. It would technically be up to the judge or the prosecutor to drop the charge. The police or victim, who initially brought in the charge, is then treated as witnesses.
If the case was a simple assault and not a domestic assault, it could be dropped with an “Accord and Satisfaction” contract. This is a signed agreement between both parties. Once the judge accepts it, the case is declared dismissed.
Can I Drop a Domestic Assault Charge?
Domestic assault cases are treated differently than simple assault cases. Here, it is the police, under the Commonwealth of Virginia, that bring a charge against the aggressor, and a charge cannot be dismissed with an “accord and satisfaction” contract.
Only the prosecutor or judge can drop a domestic violence charge, but they rarely do. Such cases are often taken seriously because the prosecutor or judge doesn’t want to let a guilty offender go without punishment simply because the victim “changed their mind.”
Notably, there are two different types of domestic violence allegations: civil and criminal domestic violence action. Both have different outcomes, if the victim wishes to drop the charges.
Dropping a Criminal Charge
This is an act of accusing someone of violating the law. It is a charge issued by the state, and only the state can drop it. The Commonwealth is considered to be acting in the best interests of everyone and will consider all options before deciding whether or not to move forward with a domestic violence criminal charge.
Sometimes, however, the prosecutor can dismiss the case, if they cannot prove it. One instance is if the alleged victim outright refuses to cooperate or alleges they cannot remember, and their testimony was the only evidence of the assault.
Dropping a Domestic Civil Case
Such a case aims at someone getting monetary damages related to the abuse. A civil suit against an abuser is much easier to win than a criminal charge.
In a civil case, the victim can drop the charges anytime they wish to for a number of reasons, with or without prejudice. However, the district attorney can sometimes force and subpoena the victim to participate in the criminal case. Some victims actually plead the Fifth, but some may not have this protection and, therefore, have to testify.
Since the victim’s interests’ conflict with the prosecutor’s interests, it would be best to consult with a private Fairfax assault and battery charges attorney to advise you on your rights and legal options.
What is My Role as a Victim?
A victim has several roles as a domestic violence case proceeds. You may be invited to appear and testify in court. You may also be required to retrieve evidence or give your opinions to the court.
If the case is a criminal action, the victim cannot ask for anything and is only treated as a witness. The victim does not need to be cooperative but needs to participate.
You can try to get a restraining order to offer you protection against your abuser. If you are afraid that your abuser may retaliate, this is an option you should consider.
Can I Change My Statement?
Since most assault and battery victims cannot drop these charges, many decide to change or take back what they told the police or investigators. This is probably not the best of ideas because, unless you lied, the state could still rely on other pieces of evidence, like police reports and pictures. Additionally, you potentially face criminal charges for providing false information.
Get Legal Advice Before Acting
Dropping an assault and battery charge in Virginia might be difficult. However, there are things you can do to protect yourself and your family. It doesn’t make a good impression when you refuse to cooperate with the prosecutor and look like the alleged offender is coercing you.
The outcome of an assault case will depend on the skill of your legal representation. Get a domestic violence attorney in Fairfax who has a relationship with the prosecutor and is experienced in getting such charges dismissed or negative outcomes minimized.