Domestic Assault & Battery

Va. Code §§ 18.2-57.2 & 18.2-57.3 — Prosecutor Reference

Penalty Structure

Charge / TierGradeRange
First or second offense — § 18.2-57.2(A)Class 1 misdemeanorUp to 12 months + up to $2,500
Third or subsequent offense — § 18.2-57.2(B)Class 6 felony1–5 years or up to 12 months + $2,500

1. Elements — Broken Out

Core Elements — A&B (Same as § 18.2-57)

  1. An assault or battery (same elements as § 18.2-57 — see the A&B cheatsheet)
  2. Against a person in a qualifying domestic relationship

Qualifying Relationship Categories — § 16.1-228

CategoryNotes
Spouse or former spouseCurrent or past marriage
Parent and child, stepparent and stepchildBlood or legal parent-child relationship
Grandparent and grandchildBlood or legal relationship
Siblings (including half and step)Blood or legal sibling relationship
In-laws (parent-in-law, child-in-law)Through marriage
Persons who share a child in commonRegardless of whether they live or have lived together

2. Third-Offense Felony Enhancement (§ 18.2-57.2(B))

  • Requires two prior convictions under § 18.2-57.2 or substantially similar offenses in any jurisdiction Priors must be separately brought and tried — not multiple charges from a single incident.
  • Certified copies of prior conviction orders must be obtained; identity linkage (fingerprints or DOB/identifier match) required
  • The priors must be alleged in the charging document (information or indictment)
  • The enhancement elevates the offense to a Class 6 felony with a 1–5 year range

3. Mandatory EPO (§ 18.2-57.2(C))

  • Upon arrest for a § 18.2-57.2 violation, a magistrate MUST issue an emergency protective order (EPO) under § 16.1-253.4
  • The EPO is mandatory — it is not discretionary; confirm it was issued and served at intake
  • The EPO runs for a limited period; a full protective order requires a separate civil proceeding in JDR court

4. First-Offender Deferral (§ 18.2-57.3)

Eligibility — All Must Be Met

  1. First offense under § 18.2-57.2
  2. No prior convictions for assault and battery or related offenses
  3. Defendant has not previously had a charge deferred under § 18.2-57.3
  4. The offense did not involve the use of a firearm or other weapon
  5. Defendant pleads guilty or no contest
  6. Defendant agrees to participate in an intervention program

Mechanics of the Deferral

StepWhat Happens
PleaDefendant enters a guilty or no-contest plea
Deferral orderCourt defers proceedings and places defendant on probation with conditions
Program completionDefendant completes a family abuse intervention program
DismissalUpon successful completion, charge is dismissed and is NOT a conviction
ExpungementDefendant may petition for expungement under § 19.2-392.2 after dismissal

5. Trial Outline — Case-in-Chief

  1. Identity — place defendant at the scene and as the person who committed the act
  2. The qualifying relationship — establish the § 16.1-228 category through testimony or stipulation
  3. The assault or battery — same proof as § 18.2-57 (see A&B cheatsheet)
  4. Victim impact and injury — even minimal injury; context of the domestic relationship
  5. Prior offenses (felony tier) — certified conviction orders with identity linkage
  6. EPO status — confirm issue and service

6. Sample Direct Examination

A. Complaining Witness

  1. What is your relationship to the defendant? How long have you known them?
  2. Do you have any children in common with the defendant?
  3. Describe what happened on [date] — step by step.
  4. Did the defendant make physical contact with you? Where on your body?
  5. Were you injured? Describe the injury; were photos taken?
  6. What did the defendant say during the incident?
  7. Did you call 911? What did you say?
  8. Had there been prior incidents? (If witness raised it — don't open a door unnecessarily.)

B. Responding Officer

  1. What were you dispatched to and when?
  2. Who was present when you arrived? Describe their demeanor.
  3. Did you observe any injuries? Photograph them? (Introduce.)
  4. What did the complaining witness tell you? What did the defendant say?
  5. Did you issue an EPO? Confirm service.
  6. What is the relationship between the parties?
  7. Describe the scene — any signs of struggle?

7. Defenses to Anticipate — and Rebuttal

  • Relationship does not qualify under § 16.1-228 Rebut with evidence of the actual legal or biological relationship; cohabitation alone is not enough.
  • Self-defense / mutual combat Rebut with aggressor status, force disparity, defendant's larger size, and victim's demeanor when officers arrived.
  • Victim recantation at trial Use prior consistent statements, 911 audio, officer observations, medical records, and photographs as independent corroboration.
  • Accident / no intent Rebut with hostile-manner standard — context, defendant's words, escalation pattern.
  • False allegation / fabrication Corroborate with third-party witnesses, physical evidence, and the specificity and consistency of the victim's prior statements.

8. Common Proof Problems

  • Charging under § 18.2-57.2 when the relationship does not qualify — confirm § 16.1-228 category before charging; roommates are not domestic partners
  • Victim recantation — build a corroboration file from the start (911 audio, photos, prior statements, officer observations)
  • Missing the third-offense felony allegation — priors must be in the charging document; secure certified conviction copies early
  • EPO not issued or not served — confirm at intake; the victim's safety and your mandatory-EPO compliance depend on it
  • Conflating domestic assault with simple A&B — the domestic charge carries the federal firearms disability; confirm intent to charge § 18.2-57.2 and not just § 18.2-57

9. Pre-Trial Checklist

  • Qualifying domestic relationship confirmed under § 16.1-228 — evidence identified
  • EPO confirmed issued and served; protective order status verified
  • Injury documented: photos, medical records, officer observations
  • Third-offense enhancement: if applicable, certified prior convictions with identity linkage obtained and alleged in charging document
  • First-offender deferral eligibility assessed before proceeding to trial
  • Victim contact plan: victim advocate assigned; prior statements preserved; recantation contingency planned
  • 911 audio obtained and transcribed
  • Any prior EPO violations or pattern-of-abuse evidence identified
  • Federal firearms consequence confirmed applicable to this conviction if defendant is licensed to carry or possesses firearms

10. Annotated Authority

Annotated authority — research layer, not printed on the PDF

Rickman v. Commonwealth 33 Va. App. 550, 555-58, 535 S.E.2d 187, 190-91, Va. Ct. App., 2000

CONVICTION AFFIRMED, on a QUESTION OF FIRST IMPRESSION: what constitutes COHABITING under § 18.2-57.2(D). The court adopted the Ohio Supreme Court's test from State v. Williams: "the essential elements of 'cohabitation' are (1) SHARING OF FAMILIAL OR FINANCIAL RESPONSIBILITIES and (2) CONSORTIUM." Shared responsibilities may be shown by "provisions for SHELTER, FOOD, CLOTHING, UTILITIES, and/or COMMINGLED ASSETS". Consortium factors "include MUTUAL RESPECT, FIDELITY, AFFECTION, SOCIETY, COOPERATION, SOLACE, COMFORT, AID of each other, FRIENDSHIP, and CONJUGAL RELATIONS", together with "the LENGTH AND CONTINUITY of the relationship". Applied as a TOTALITY-OF-THE-CIRCUMSTANCES analysis. Here the parties had resided together "a couple months".

Practical value: THE CHECKLIST FOR THE COHABITATION ELEMENT, and it is not about a lease. The premise the court adopted is that "domestic violence arises out of THE NATURE OF THE RELATIONSHIP ITSELF, RATHER THAN THE EXACT LIVING CIRCUMSTANCES." Ask about groceries, bills, a shared phone plan, whose name is on what — and about the relationship's texture, not just its address. Note the residence point Rickman draws from Archuletta: a person "may have only one legal domicile at one time, [but] he may have MORE THAN ONE RESIDENCE" for domestic-assault purposes. "He still had his own place" is not an answer.

State v. Williams (Ohio) 683 N.E.2d 1126, 1129-30 (Ohio 1997), Ohio, 1997

The source of the two-element cohabitation test Virginia adopted in Rickman, and of the premise that "DOMESTIC VIOLENCE ARISES OUT OF THE NATURE OF THE RELATIONSHIP ITSELF, RATHER THAN THE EXACT LIVING CIRCUMSTANCES of the victim and perpetrator."

Practical value: ⚠️ OHIO LAW. It governs in Virginia only because Rickman adopted its reasoning on a question of first impression — cite RICKMAN, and Williams only through it.

State v. Kellogg (Iowa) 542 N.W.2d 514, 518 (Iowa 1996), Iowa, 1996

Cited by Rickman for the additional factors of "the LENGTH AND CONTINUITY of the relationship."

Practical value: ⚠️ IOWA LAW, persuasive only and reaching Virginia through Rickman. Useful where the relationship is short — Rickman's own facts were "a couple months", so brevity alone does not defeat cohabitation.

Farmer v. Commonwealth 62 Va. App. 285, 746 S.E.2d 504, Va. Ct. App., 2013

FELONY CONVICTION AFFIRMED under § 18.2-57.2(B). Three certified JDR criminal warrants from 1997 were properly admitted to prove the PREDICATE MISDEMEANOR CONVICTIONS, over objections that they were "fatally deficient" because they did not reflect WHETHER HE PLED guilty, not guilty or nolo contendere, and did not EXPRESSLY REFLECT THAT HE WAS PRESENT. "[T]he trial court DID NOT ABUSE ITS DISCRETION when it admitted the November 4, 1997 orders."

Practical value: THE CASE TO HAVE WHEN THE PREDICATES ARE OLD JDR WARRANTS — which is nearly always. The two objections Farmer rejects are the two the defence makes. Bring certified copies and be ready to identify the defendant; do not assume you must also prove plea or presence from the face of the order. ⚠️ Farmer decides ADMISSIBILITY only. It expressly does not address the sufficiency of the evidence on the new offence.

Marshall v. Commonwealth 69 Va. App. 648, 822 S.E.2d 389, Va. Ct. App., 2019

AFFIRMED. A conviction under § 18.2-57.2 "CONSTITUTES A CONVICTION FOR A CRIME OF DOMESTIC VIOLENCE as that term is defined under the relevant FEDERAL statute", so denying such a conviction on ATF FORM 4473 supports a false-statement conviction under § 18.2-308.2:2. The court rejected the argument that SOME violations of § 18.2-57.2 fall outside the federal definition.

Practical value: THE COLLATERAL CONSEQUENCE THAT MAKES A MISDEMEANOR MATTER, and it is worth telling a defendant's counsel about early: a § 18.2-57.2 conviction is a federal firearms disqualifier, and denying it on a Form 4473 is a separate Virginia felony charge.

Frazier v. Commonwealth 268 Va. 412, 601 S.E.2d 624, Va., 2004

Confirms the definitional cross-reference this sheet depends on: § 18.2-57.2(D) and § 18.2-60.3(F) give "family or household member" THE SAME MEANING AS IN § 16.1-228, which includes "(v) any individual who HAS A CHILD IN COMMON with [another] person, WHETHER OR NOT the person and that individual HAVE BEEN MARRIED OR HAVE RESIDED TOGETHER at any time."

Practical value: ⚠️ READ THE CAPTION BEFORE CITING IT. FRAZIER IS NOT A DOMESTIC ASSAULT CASE. It is a conviction for FELONIOUSLY AIDING AND ABETTING A FAILURE TO APPEAR under § 19.2-128(B). It reaches this sheet only for the statutory cross-reference, which is general. THE USEFUL POINT: a CHILD IN COMMON makes the parties family or household members even if they NEVER MARRIED AND NEVER LIVED TOGETHER — so where cohabitation under Rickman is hard to prove, check for a child first. ⚠️ AND THE POSTURE IS EXTRAORDINARY: a divided Court of Appeals PANEL REVERSED the conviction (40 Va. App. 350); on rehearing EN BANC the conviction was AFFIRMED BY AN EQUALLY DIVIDED COURT (41 Va. App. 595); the Supreme Court then affirmed. Cite 268 Va. 412.

Frazier v. Commonwealth (panel, REVERSED) 40 Va. App. 350, 579 S.E.2d 628, Va. Ct. App., 2003

⚠️ SUPERSEDED — recorded so it is not cited by mistake. A DIVIDED PANEL of the Court of Appeals REVERSED Frazier's conviction by published opinion. That mandate did not survive: the en banc court affirmed the conviction by an equally divided court, 41 Va. App. 595, and the Supreme Court affirmed at 268 Va. 412.

Practical value: This is the citation that appears to help a defendant and does not. Three published citations exist for one case and only the last one states the law.

⚠️ This sheet previously cited NO case law at all. These seven entries were sourced from scratch on 2026-08-28 and every one was read in the deciding court's own opinion.