What Is DV in the Presence of a Child?

According to the National Institute of Justice, children in environments where acts of violence are threatened or committed can suffer emotional, psychological, and physical development issues. This exposure can also lead to difficulty in school, drug use, aggressive behavior, mental health problems, and criminal behavior.

In Utah, if a person commits domestic violence (DV) in the presence of a child, they could face additional criminal charges and penalties. According to Utah Code § 76-5-109.1, something is done in the presence of a child when the child is physically present, or the actor knows that the child is nearby and could see or hear the act being perpetrated.

The law lists three situations in which DV is committed in the presence of a child:

  • The alleged offender committed or attempted to commit criminal homicide,
  • The alleged offender used a dangerous weapon or force and could have caused injury or death to the victim, or
  • The alleged offender committed any other act of domestic violence

What Is Considered Domestic Violence in Utah?

Domestic violence occurs when a person commits a crime against a cohabitant.

Cohabitants include:

  • Spouses
  • People living as spouses
  • People related by blood or marriage
  • People with a child or children in common
  • People currently or formerly residing together
  • People in a consensual sexual relationship

Offenses that can be charged as domestic violence involve force or physical harm or the threat or attempt to cause such results upon a cohabitant.

A long list of crimes falls under this definition, including, but not limited to:

  • Aggravated assault (Utah Code § 76-5-103): Attempting, threatening, or causing bodily injury to another by using a dangerous weapon or impeding breath or blood circulation.
  • Assault (Utah Code § 76-5-102): Attempting or causing bodily injury to another or creating a substantial risk of such harm.
  • Criminal homicide (Utah Code § 76-5-201): Causing the death of another.
  • Harassment (Utah Code § 76-5-106): Frightening another by communicating a threat to commit a felony.
  • Electronic communication harassment (Utah Code § 76-9-201): Using electronic means to intimidate, frighten, threaten, insult, or taunt another person.
  • Mayhem (Utah Code § 76-5-105): Severing, disabling, or breaking a body part of another person or injuring someone’s tongue, nose, eye, ear, or lip.
  • Sexual offenses (Title 76, Chapter 5, Part 4 of the Utah Code): Committing crimes, such as rape, unlawful sexual conduct, sexual abuse of a child, or sodomy on a child.
  • Stalking (Utah Code § 76-5-106.5): Committing two or more acts against a specific person with the intent to cause fear of safety or emotional distress.
  • Unlawful detention (Utah Code § 76-5-304): Detaining or restraining someone against their will.

What Is the Sentence for DV in the Presence of a Child?

The criminal penalties assessed upon a conviction for domestic violence in the presence of a child depend on the conduct.

If the defendant committed or attempted to commit criminal homicide, or they caused serious injury or nearly caused serious injury or death, they could be charged with a third-degree felony. In Utah, third-degree felonies are punishable by a maximum of 5 years of imprisonment and/or a fine not to exceed $5,000.

Any other act of domestic violence committed in the presence of a child is charged as a class B misdemeanor. At this level, conviction penalties include up to 6 months of incarceration and/or up to $1,000 in fines.

If more than one child was present at the time of the offense, the defendant faces a charge for each child. For instance, if three children were nearby, the defendant will be prosecuted for three separate violations and sentenced for each.

Note that a charge under Utah Code § 76-5-109.1 is distinct from the domestic violence offense. The punishments are in addition to those imposed for the underlying violation. For example, suppose the defendant stalked someone while a child was present. This offense is a class A misdemeanor. If the defendant is convicted, they could be incarcerated for up to 364 days and fined up to $2,500 for the stalking offense. They could face an additional 6-month term of incarceration and an extra fine of up to $1,000 because the crime was committed in the presence of a child.

Anyone convicted of domestic violence – whether or not a child was present – can also face the following sanctions:

  • No contact order
  • Electronic monitoring
  • Paying costs of counseling for the victim
  • Paying victim restitution
  • Completing a domestic violence treatment or therapy program

If you have been accused of domestic violence in Salt Lake City, call Lokken & Putnam, P.C. at (801) 829-9783 or contact us online. We will fight to protect your rights and future.