It is not uncommon for people to call our office on behalf of a friend or family member or loved one who has been arrested for or charged with a crime of domestic violence and to be very confused, or even upset. They describe to us a situation where a married couple, or a boyfriend and girlfriend, or two siblings, or two roommates, got into an argument or even a fight, things may have gotten a little out of hand, and someone called the police for help in defusing or cooling things off. The police arrived and, to the caller’s surprise, rather than simply defusing the situation or helping someone cool off, the police arrested someone. Even if nobody wanted anyone arrested. Even if no one was “pressing charges.” And then the person arrested is charged criminally.
Many people are not aware of Wisconsin’s domestic abuse mandatory arrest law, which is codified in section 968.075 of the Wisconsin statutes. A situation is considered domestic if the parties involved are or were married, do or did live together, or if they have a child together. Under 968.075, there are situations in which police, who normally have great discretion in how to handle matters, have no discretion and must arrest someone. If the police encounter a situation in which they believe a person is committing or has committed domestic abuse, they believe the person’s actions constitute a crime, and they believe that continued domestic abuse is likely, there is evidence of physical injury to an alleged victim, or the person in question is the “predominant aggressor,” then the police “shall arrest and take a person into custody.”
What does all that mean? “Domestic abuse” is defined as the intentional infliction of physical pain, physical injury, or illness, the intentional impairment of physical condition, sexual assault, or any physical act that may cause the other person to reasonably fear imminent engagement in any of the above, committed by a person in a domestic relationship with the other party. Perhaps the most common crimes of domestic abuse in Wisconsin are Disorderly Conduct and Misdemeanor Battery. Criminal Damage to Property, Criminal Trespass to Dwelling, and Misdemeanor Intimidation of a Victim are also common. Felonies that are often domestic include Substantial Battery, Aggravated Battery, Stalking, False Imprisonment, Felony Intimidation of a Victim, and First or Second Degree Recklessly Endangering Safety.
Legally, it does not matter if anyone is “pressing charges.” The matter is out of the hands of the parties involved or the person who called the police. In such situations, the police are required by law to arrest someone, the person they determine to be the predominant aggressor in the situation. That person will be arrested and will be taken to jail. That person will not be released until they either post bail (if the arrest is for misdemeanors) or appear before a judge for a bail hearing or an initial appearance (if the arrest if for a felony or felonies).
The person whom the police determine to be the victim of the alleged offense will be automatically offered the option of enforcing a 72-hour period following the arrest when the arrested person may not have any form of contact with the victim. The victim may enforce or decline the 72-hour period of no contact. If it is enforced and the arrested person does have any form of contact with the alleged victim during the 72-hour period, the arrested person can be charged with an additional crime.
Just as it is out of the hands of the parties involved as to whether anyone is arrested in a domestic situation, it is likewise out of their hands as to whether the arrested person is actually criminally charged. The district attorney’s office has the discretion and the authority to make that decision. Unlike the arrest, the decision to charge is not mandatory, but the district attorney may criminally charge the arrested person even if the alleged victim or other people involved don’t want that, even if no one is “pressing charges.”
After all that, it is not uncommon for the spouse, or the significant other, or the partner, or the sibling, or the friend, of the arrested person to not want anyone to be criminally charged or prosecuted. Domestic matters are often very complicated–legally, factually, and personally–and involve people who have built lives and families together. If you have been arrested for or charged with crimes of domestic abuse or domestic violence, you should consult an attorney immediately.
There are serious repercussions to being charged with or convicted of any crime, even more so with crimes of domestic abuse or violence. You may lose your ability to obtain a concealed carry permit or to serve in the military, even if you are not convicted of a felony. Domestic convictions also carry with them the possibility of enhanced sentences in the future. An attorney can explain the challenges, ramifications, and consequences of criminal domestic violence charges to you and help you figure out a strategy for dealing with them and defending yourself against them.