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Can you be convicted of DV assault in Washington even if you don't live with the victim?

Posted by Brian C. Zuanich | Jun 08, 2019 | 0 Comments

When we think of domestic violence, we generally think of close family members or dating relationships. Husband punches wife. Girlfriend kicks boyfriend. Father slaps child.

Under the law, however, the definition of DV is much broader. In Washington, you can be convicted of domestic violence if you assault anyone who is a “family or household member.”

RCW 26.50.010 lays out the definition of a “family or household member.” And this statute is the kind of a statute that only a lawyer could love. It's rlong (I mean … really long). 120 words and the whole thing is one sentence.

Even more interesting, the definition doesn't make intuitive sense. Take one part of the definition: family or household members include “adult persons who … have resided together in the past.” Under the statute, then, your ex-spouse qualifies. Maybe your ex-boyfriend? Maybe even your first roommate after college?

In short, a family or household member may not be family … or a household member.

No matter how elastic this definition is, the State still has to prove a “family or household” relationship between the defendant and victim to convict the defendant of domestic violence assault.

So how much proof is enough? The State learned this lesson the hard way in State v. Shelly, a case decided last year.  In Shelly, a jury found the defendant guilty of DV assault for hitting his girlfriend's minor son. At the time of the assault, the girlfriend and her son. did not live with the defendant. The defendant was not the boy's biological father.

Shelly appealed. He argued that the State didn't actually prove a DV relationship between he and the boy. Shelly won.

On appeal, the State argued that the jury could have “presumed” a legal parent-child relationship between Shelly and the boy under the Uniform Parentage Act. But the Court of Appeals rejected the State's logic. Only a civil court, the Court reasoned, can adjudicate parentage under the Uniform Parentage Act, and the State did not present any evidence at trial from any civil proceeding.

Therefore, Shelly's jury reasonably concluded that he was guilty of assault, but unreasonably concluded that he was guilty of DV assault.

About the Author

Brian C. Zuanich

I am the managing partner at Zuanich Law. I am a former prosecutor and insurance defense attorney, and have practiced law in state and federal courts for over a decade.

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