Domestic violence in the presence of a child is essentially you committing any of the enumerated domestic violence tagged crimes in front of children. This could be the classic drunken assault and battery involving a spouse with the children present. Or it could be electronic communications harassment when the children could see it.
In the presence of a child has a special definition in Utah law to mean:
(a). in the physical presence of a child; or
(b). having knowledge that a child is present and may see or hear an act of domestic violence.
Domestic violence itself is not a crime in Utah, domestic violence is a tag applied by prosecutors in charging crimes.
The Utah domestic violence charge applies to the following charges:
(a) aggravated assault, as described in Section 76-5-103;
(b) aggravated cruelty to an animal, as described in Subsection 76-9-301(4), with the intent to harass or threaten the other cohabitant;
(c) assault, as described in Section 76-5-102;
(d) criminal homicide, as described in Section 76-5-201;
(e) harassment, as described in Section 76-5-106;
(f) electronic communication harassment, as described in Section 76-9-201;
(g) kidnapping, child kidnapping, or aggravated kidnapping, as described in Sections 76-5-301, 76-5-301.1, and 76-5-302;
(h) mayhem, as described in Section 76-5-105;
(i) sexual offenses, as described in Title 76, Chapter 5, Part 4, Sexual Offenses, and Section 76-5b-201, Sexual exploitation of a minor — Offenses;
(j) stalking, as described in Section 76-5-106.5;
(k) unlawful detention or unlawful detention of a minor, as described in Section 76-5-304;
(l) violation of a protective order or ex parte protective order, as described in Section 76-5-108;
(m) any offense against property described in Title 76, Chapter 6, Part 1, Property Destruction, Title 76, Chapter 6, Part 2, Burglary and Criminal Trespass, or Title 76, Chapter 6, Part 3, Robbery;
(n) possession of a deadly weapon with criminal intent, as described in Section 76-10-507;
(o) discharge of a firearm from a vehicle, near a highway, or in the direction of any person, building, or vehicle, as described in Section 76-10-508;
(p) disorderly conduct, as defined in Section 76-9-102, if a conviction of disorderly conduct is the result of a plea agreement in which the defendant was originally charged with a domestic violence offense otherwise described in this Subsection (4), except that a conviction of disorderly conduct as a domestic violence offense, in the manner described in this Subsection (4)(p), does not constitute a misdemeanor crime of domestic violence under 18 U.S.C. Sec. 921, and is exempt from the federal Firearms Act, 18 U.S.C. Sec. 921 et seq.;
(q) child abuse, as described in Section 76-5-109.1;
(r) threatening use of a dangerous weapon, as described in Section 76-10-506;
(s) threatening violence, as described in Section 76-5-107;
(t) tampering with a https://provocriminaldefense.com/2020/07/20/utahs-sexual-battery/witness, as described in Section 76-8-508;
(u) retaliation against a witness or victim, as described in Section 76-8-508.3;
(v) unlawful distribution of an intimate image, as described in Section 76-5b-203;
(w) sexual battery, as described in Section 76-9-702.1;
(x) voyeurism, as described in Section 76-9-702.7;
(y) damage to or interruption of a communication device, as described in Section 76-6-108;
How does Utah Define Domestic Violence:
“Domestic violence” or “domestic violence offense” means any criminal offense involving violence or physical harm or threat of violence or physical harm, or any attempt, conspiracy, or solicitation to commit a criminal offense involving violence or physical harm, when committed by one cohabitant against another. “Domestic violence” or “domestic violence offense” includes commission or attempt to commit, any of the following offenses by one cohabitant against another:
The basic meaning of Utah’s domestic violence definition is violence or physical harm. Name calling or yelling are not enough.
How does Utah Define
“Cohabitant” means an adult who:
(i) is or was a spouse of the other party;
(ii) is or was living as if a spouse of the other party;
(iii) is related by blood or marriage to the other party as the individual’s parent, grandparent, sibling, or any other individual related to the individual by consanguinity or affinity to the second degree;
(iv) has or had one or more children in common with the other party;
(v) is the biological parent of the other party’s unborn child;
(vi) resides or has resided in the same residence as the other party; or
(vii) is or was in a consensual sexual relationship with the other party.
The criminal elements a prosecuting attorney must prove to find you guilty of domestic violence in the presence of a child are:
(a). You committed one of the tagged and qualifying domestic violence crimes.
(b). You committed domestic violence against a specifically defined cohabitant.
(c). You committed domestic violence in front of children they could see, or hear, should see, or hear, or were present, or by ZOOM.
In the Presence Defense.
The prosecutor must show that the domestic violence act occurred “in the presence” of children. Often domestic struggles occur at night when the doors are closed, the kids are asleep. Were the kids downstairs with the TV on when the police arrived? What is the layout of the house? What are the acoustics? Did the children really hear anything except your TV going or other people in the room?
The underlying, triggering domestic violence charge still must be proved by the prosecuting attorney, in addition to being in the presence of children.
All the usual and fact specific defenses to the underlying domestic violence charges are in play and should be reviewed carefully by your Utah criminal defense attorney.
