People v. State

fairly undermining public confidence in the administration of justice

A Righteous Legal Loophole

December 05, 2009 By: John Kindley Category: Uncategorized

Under Indiana Code section 35-42-2-1.3(b)(2), a person who knowingly or intentionally touches his current or former spouse (or baby momma, or similarly related person) in a rude, insolent or angry manner resulting in bodily injury, and does so in the physical presence of a child less than 16 years old, commits a Class D felony Domestic Battery.

On the other hand, under Indiana Code section 35-42-2-1(a)(2)(M), a person 18 or older who knowingly or intentionally touches his current or former spouse (or other family or household member) in a rude, insolent or angry manner resulting in bodily injury, and does so in the physical presence of a child less than 16 years old, also commits a Class D felony Battery. But it’s not a Domestic Battery.

Believe it or not, there’s a big difference. If you are charged with and plead to the latter plain vanilla Class D felony Battery, the plea agreement can provide, as it can for most Class D felonies, that the felony will be converted to a misdemeanor after satisfactory completion of probation. If you are charged with and plead to the former extra-special Class D felony Domestic Battery, it can’t. The legislature at the behest of the Victimocracy has carved out an exception for Domestic Battery convictions, right alongside Child Porn convictions. You’ll be a felon for the rest of your life.

Keep in mind that “bodily injury” is defined in the Indiana statutes to mean “any impairment of physical condition, including physical pain.” A relatively minor fight could trigger a felony charge. And as Mark Bennett observed:

[M]any if not most domestic violence calls result from couples whose ordinary communications are passionate, rough, and even violent pushing each other’s buttons until one goes just a little bit farther than either planned, and the cops get called. Not that there’s any shortage of unprovoked meanness in the world, but most family violence prosecutions are simply escalated domestic disputes, resulting from general human goofiness.

. . .

Reasonable people can differ on the merits of the majority of family violence assault cases. Sometimes the complainant wants to retract the accusation not because she’s a battered woman but because she was in the wrong in the first place. Every alleged assailant is not a ticking time bomb.

The loophole obscurely hidden in section 35-42-2-1(a)(2)(M) is a righteous one. A decent prosecutor who’s got the goods on the defendant  in a felony domestic battery case should be open to using it. You don’t help the victim of a domestic battery or her family by saddling her husband and his employment prospects with a felony conviction for the rest of his life, assuming she’s decided not to leave his sorry ass. You certainly don’t help her or her family resolve the evident strains in their relationships by forcing her to testify at trial, under the pains and penalties of perjury, against her husband. But, just maybe, you do help the situation by throwing some cold water on it, by giving the defendant a chance to get his act together and get some counseling before you have him branded as a felon for the rest of his life.

12 Comments to “A Righteous Legal Loophole”

  1. Gavin Peters says:

    Wait, a wife can be forced to testify against her husband in Indiana?

  2. The domestic abuse,battery, vilonce laws in Indiana are the worst I have ever seen. Prime ex: My sister was beaten to a plup on saturday and they let the a—— out bail on sunday. What are they thinking, the best part the countyand town cops says he drink all he wants tonite because he has not formally been charged. So with both PIGS standing there I informed them if my sister dies tonite because he was threathing her still I will SUE THEIR ASS OFF AND YOU CAN COUNT ON THAT!!!!!


  3. Is there a ‘cooling off’ period when one is arrested for domestic battery ? Can they bond immediately? Or wait until a judge is seen ?

  4. What if it is not a domestic violence case against the spouse,the husband got into trouble for something else can the wife be made to testify??

  5. What can happen if the spouse was lien about the abuse for the second time?

  6. Can a person in Indiana be prosecuted on a level 6 domestic violence case that he’s never been arrested for and has been dragging through the court system for nearly 2yrs now? He is already a felon and is getting the short end of the stick here, not to mention this is not the 1st time his ex has made a false complaint against him which she just did again 3wks ago. Does Indiana carry the right to a speedy trial, etc?

  7. Betty Caudill says:

    My son was charged with child molestation and then took a plea deal of a Class D Felony simple battery. He is already done with his probation. Could he file a petition to modify his class D felony to a class a misdemeanor?

    • John Kindley says:

      I don’t give legal advice on this blog. Feel free to contact my office if you’re inquiring about legal representation.

  8. Rob Murphy says:

    I am having a hard time distinguishing between the two codes 35-42-2-1.3 and 35-42-2-1 understanding that 35-42-2-1.3 is a domestic battery then logically 35-42-2-1 would be the vanilla battery (non-domestic) however before applying to a federal job requiring a hazardous material permit that requires me to answer a question honestly…Glancing over my criminal history on Mycase.In .gov I see this > 1989 35-42-2-1 BATTERY (A) (D.V.) So I’m like what the heck is the (D.V.) mean and where did it come from first instinct is that it could stand for domestic violence doing research turns up no definition to me, however, I did see something that could interpret this as (d.5.)? adult endangerment? as far I know I was convicted of a simple battery and that is the answer would like to give to them but now I’m confused and wishing they would include a legend to their abbreviations.

  9. Rob Murphy says:

    I Agree “Every alleged assailant is not a ticking time bomb.” or convicted assailant, to take that statement a step further and I can certainly identify with the full statement. A decent prosecutor should, in fact, make these considerations However The logic seems to be that Punishment trumps rehabilitation and individual rights e.g. Passports, voting, Second Amendment, loans and Housing and continues to punish a person in a fundamental way ex-post facto… especially the loss of second amendment rights and I find pre-crime a repugnant concept.
    So Back to the mythical decent prosecutor, Some people have been taught to be violent to resolve their problem from childhood. They can be taught other methods successfully. Most people are not Bad people, they have bad judgment and responded in an inappropriate way to anger or even disproportionate self-defense. Forcing them into treatment should suffice. but I’m not sure you can count on any prosecutor to temper zeal with human kindness it’s just their factional purpose to avoid that righteous legal loophole.


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