Episode 17: What To Do When… There is Adultery.
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EP 17: What To Do When… You Are Purchasing a Firearm with Scott Cardani and Jackie Critzer
Welcome to What To Do When….A podcast from real lawyers with real perspective, where we explore a variety of legal issues and scenarios. Each week we focus on a new topic and discuss What to do When, and if any of these legal scenarios ever happened to you or a loved one. With over 40 years of combined legal experience, our hosts offer their unique perspectives and insights on a range of real life legal situations.
Scott Cardani 0:30
Welcome back to what to do when a dummies guide to the legal verse
Jackie Critzer 0:34
Scott, what’s on the docket today?
Scott Cardani 0:36
We’re going to talk about assault, particularly domestic assault.
Jackie Critzer 0:41
Like assault and battery?
Scott Cardani 0:41
Yeah, assault and battery. I think maybe we should start there real quick. What’s a difference Jackie, between an assault and a battery?
Jackie Critzer 0:49
Assault actually is the attempt or almost touching battery is the actual unwanted touching. Ish.
Scott Cardani 0:59
Yeah. And so it usually deals with the fear, you know, you putting somebody in fear you’re assaulting them by your fear. So, but these are very, very, very important. We’re seeing a tremendous uptick in domestic assaults. Now, domestic assaults deal with, usually a husband and wife or brother and sister or somebody in the context of the home. So that’s a really big deal. But we’re seeing a tremendous uptick tick in those kinds of cases coming through our office. And…
Jackie Critzer 1:26
Because they’re connected to protective orders. And so if you haven’t listened to the protective order podcasts, go back and listen to that after you listen to this one, because they tie in really closely. They’re very, very connected.
Scott Cardani 1:37
Exactly. And, you know, I want to say a couple of things about this off the top number one, remember, this is a misdemeanor. Domestic assault is a misdemeanor. There’s lots of ways to walk through this. But it’s a very serious crime. Because when you get charged with a domestic assault, and if you’re convicted, federal law kicks in, and you’re your gun rights, and so many other things are affected by that. So this is a really, really big deal. That most people kind of blow off and go, Oh, you know, it’s just a assault and battery, I don’t really have any much to worry about. And really you do, and this is something you really need to get a lawyer involved pretty quickly.
Jackie Critzer 2:16
Am I correct or incorrect that if there’s a conviction of domestic assault and battery, on a family or household member, that a protective order is automatic? Or how does that work?
Scott Cardani 2:27
Actually, it’s not automatic, a lot of times the law enforcement or the magistrate will do a temporary protective order, but it’s not automatic at all. A lot of people believe that. But there are two separate things if somebody wants to protect you, or they have to apply for it separately. But they usually kind of run the same channel. And then you get into the problem of you have a civil case and the protective order in a criminal case, which I won’t go through all that stuff today. But there is a there’s a distinction here and you really got to understand the law. And you really have to have an attorney who understands this area of law. Luckily for us, I mean, I cut my teeth on assault matters in the city of Richmond, I would literally try 1000s of domestic assaults in my career so well.
Jackie Critzer 3:12
it’s important. You you point out, though, that you need someone who knows what they’re doing, not just a criminal defense attorney will handle a protective order the same because the protective order really deals with the family court, Juvenile and Domestic Relations Court, as well as the criminal aspect of it. And you were saying you said you don’t want to get into but I think it’s important that well, you’ve got the criminal side, and you have the civil side. I have been in court trying to get a protective order for my client expecting Well, we’re just going to continue this until the criminal trial is done. And had other attorneys say, will you What do you mean, why would I want to do that? And the short answer…
Scott Cardani 3:52
The short answer is, anything you say can and will be used against you in a court of law. So when you go into civil side, you’re not looking at jail time. So you may be a little more loose in your communication. Or you may have a different strategy civilly than you do criminally. But that strategy used in civil court can backfire in the criminal court. For instance, in a civil context, it’s okay to give your side of the story. In a criminal context, you may not want to give your side of the story and open yourself up because they have to prove in the criminal context beyond a reasonable doubt. In the civil context, it’s preponderance or clear and convincing, sorry, I don’t remember…
Jackie Critzer 4:34
But once you testify in the civil side, in defense of yourself, all of that testimony can then be used against you on the criminal side where before you wouldn’t have had anything to be used against you potentially it was a he said she said. So now it’s the other person said and you said no, not or who do believe it’s you’ve already testified essentially, potentially against yourself. So you need some One and we keep saying that, but you do need someone who knows the difference and knows the strategy on how to tie those two kinds of cases together the assault battery and the protective order. And when you’re defending those, right, if Scott is representing the person who’s been accused of the domestic violence, and has protective order and criminal charges pending, that’s one side of the case. And if I’m defending, again, if I’m trying to get a protective order against his client, and I’m trying to make sure that these assault charges stick, it’s just different strategy. And it’s, it’s really important to have someone who’s knowledgeable with both sides. And certainly both aspects of the case.
Scott Cardani 5:37
Absolutely, I can’t tell you how much it how important it is. To know, and when we see an attorney not know that we cringe. Because we understand that he may be opening his client up to something that he didn’t even realize. And quite frankly, when I started very rarely were these two tied together assault and battery and the protective order, but now they’re almost more often than not so and you have to know, sometimes you’re gonna have to postpone the protective order to handle the criminal, which may mean you might have a protective order in place for a little while until you can get the criminal side done. And that’s not okay. Because if you have a protective order in place, again, gun rights and all kinds of other rights start to get affected. So you have to know that but you have to play this game right in sometimes, you have to give up a little bit to get to a better end. And having an attorney advise you through that’s very important. But the other thing I think is really important about saying about assault and battery. Is that as Jackie said, I would say 90%, if not 98% of these cases are he said she said to people in her house, brother and sister used to be husband and wife.
Jackie Critzer 6:51
Domestic partners of any kind.
Scott Cardani 6:53
Yeah, domestic partners of any kind. And nobody saw it, but them. Right?
Exactly right. And you know, I always say this to what people are saying is assault. If Jackie doesn’t want me to touch her, that’s an assault. It’s an unwanted touching. There’s the old case law. And I always remember this in law school where the guy was flying a kite. And the person cut his string in because he was attached to this string. It’s an unwanted touching because you’re touching somebody something that somebody else is touching.
Jackie Critzer 7:25
I’ve had the cat I’m sure you have too. But I’ve had the case where somebody grabbed the cell phone out of the person’s hand. Let’s say Scott’s holding my cell phone, I grabbed my cell phone, my cell phone out of his hand. That’s a battery. That alone is enough. And I’ve seen protective orders issued for that. I you know, anyway, it’s just you have to be very mindful of what it is any unwanted touching.
Scott Cardani 7:51
I really want to dig down on this just a hair and I don’t spend too much time on this. But you know, a lot of times in a marital context, especially, Hey, honey, are you listening to me? Grabbing her arm is totally been okay for 30 years. But when she’s mad at you, and you do it all sudden, you’ve committed an assault. And you really have to know that. And you really have to understand that in our current culture, and where we are now, those things are happening all the time. So something that she may have done to you 5000 times the same way, honey, you need to listen to me, she may have pulled your chin. Hey, honey, you need to listen to me. And all sudden you do the same thing to her and you’ve just committed an assault. And you’re like that we’ve done that for years. That’s an assault, I mean, a battery, I should say assault battery, right? But it is, if it’s an unwanted touching, it’s an unwanted touching. Now. I just really think that’s, you have to know that. And you have to understand that, especially in these domestic cases. And if you see that things are very contentious in situations getting bad, the best thing to do is walk away. If you’re going to remain in that situation, I will say this, you know, one of the things I will do sometimes in situations where I think you’re sketchy is I put my phone in my pocket on record, leave the cameras sticking out and just, you know, just on the camera, I got the cord too. But I’m just on the case that maybe I’ll have some evidence if something goes bad if I walk into a bad situation have, you know, over the years walked into maybe a bad what I thought was might could be a bad situation. So I just have that instinct because I’ve been doing this so long. But you’ve got to gain those instincts. If you are in a marriage that’s breaking down. In a family situation is breaking down you have to guard against these kinds of charges. Because they are serious and they have long term impacts on your record. I mean, all of a sudden, your husband beater or a wife beater. And that may not be in your character at all. And you may never have done anything and what you did was pretty minimal. Like take Jackie’s pen out of her hand. And we’re dead serious about this. It seems silly. We get it. We understand it but you’ve got to understand it. It’s very important.
Can you touch a little bit on weapons? I don’t mean of course, you know jab and a knife in somebody, or using a weapon to pistol whip someone or shoot them. But how maybe holding a knife in during a dispute could impact an assault battery charge? And would it?
Well, it does. But sometimes there’ll be another charge, like brandishing a firearm or something like that. But it really comes down to again, it’s a threat. The assault is a threat. So if I’m going like this and saying, I’m gonna hurt you, I’ve assaulted you.
Jackie Critzer 10:29
But what if there’s no act? And I have to be careful, because we don’t want to disclose too many details. But what if there’s just not an A, there’s no threat? There’s just maybe you are cutting potatoes, cutting potatoes?
Scott Cardani 10:45
Absolutely. Sure. Yeah, that happens a lot, honestly. And we see it a lot in our context where wife is cutting potatoes angry at husband, but she’s cutting potatoes. He’s over here. They’re in a fight. And he goes, Oh, she threatened me with a knife. Did she really, but again, in these He Said, She Said context, exact that’s not a threat. But unfortunately, sometimes these things get perceived as threats, or it’s just a way to get the upper hand. And that’s the most sad part about assault and battery and protective orders when they’re when I believe because I really believe there’s true victims out there who’ve really been injured and really been hurt. They really need the protection of the court and really need the absolute assault and battery. But when they’re used. So often what we see is used as an upper hand, like in a divorce, because you position yourself if you get an assault conviction, and he can’t have contact with you and you get to live in the house and have the car and do anything you want. There’s a lot of downplay to that. So, you know, all of a sudden, even in the divorce context, that assault and battery can hurt you because Oh, you assaulted her you got convicted or so. So it goes to fault grounds, all those things. So it’s super important. And again, I think what we’re trying to convey here is how simple number one it can be. Number one, and assault is a threat batteries a touching and unwanted touching, it doesn’t matter that it doesn’t matter where you hurt them or not. I hear that all the time. It doesn’t matter. I just assaulted Jackie didn’t hurt me at all. If she did not want me to touch her. So that’s really understanding that
Jackie Critzer 12:22
Scott Cardani 12:23
I keep saying it’s assualt, it’s battery. Yeah. So in most of the time you charged with assault and battery together. That’s just how Virginia does it.
Jackie Critzer 12:32
Are there separate? There might be separate code sections? I don’t
Scott Cardani 12:35
There isn’t. But there is a separate civil battery and a civil assault. So that’s where it comes from. But secondly, you have to know the environment in which you’re in. And quite frankly, you can’t always protect yourself. I can’t believe how many times we’ve had made up stories and but when you have he said she said and I say Jackie punched me in the arm. That’s an assault, but there’s no proof of it. And I’m lying. It’s really really hard to disprove that.
Jackie Critzer 13:08
Well, and in all fairness, we’ve we’ve also had clients who we know were were battered, right and who I mean, I’ll never forget, I had a client whose was very badly beaten. That mean, the next day, she was pulling the ponytail holder out of her hair and clumps of hair were coming because he’d grabbed the ponytail and had been pulling on it. And, you know, sometimes you’ll see when the blood vessels or capillaries in the eyes are ruptured because they’ve been strangled. You know, you can’t argue with that. You know, you can get in there and work there are people who are going to Oh, what if she caught herself? What if she hid herself? What if she threw herself down the stairs to make it look like I did something? Sure you’re gonna have those. But you it’s hard to strangle yourself enough to the point where you have broken blood vessels in your eyes. But we have seen the real situations where it’s on battery has occurred, and the protective order is necessary and charges are pending. And it’s, and it’s terrible. And we we are also here for those domestic violence survivors. And understand that we’re really not focused on those issues so much as we are on what assault and battery really looks like and how you could find yourself in a situation where you’re being charged.
Scott Cardani 14:17
Again, it’s a criminal charge. And what we’re trying to explain to you is in a criminal charge. Again – that old adage- we’re gonna say every time…. do not talk to anybody until you’ve talked to a lawyer if you’re charged. Because what you say can and will be used against you. And most often when you think you’re talking your way out of it, you’re actually talking yourself in the bigger trouble.
Jackie Critzer 14:34
I didn’t hurt her…for example.
Scott Cardani 14:36
Exactly, that’s the #1 that I hear all the time. I touched her, but I didn’t hurt her. I’ve been doing that for 20 years. You just admitted to an assault. When the police are called to your home, the best thing to say is nothing – or I did nothing and leave it at that. And don’t say anything other than that.
Jackie Critzer 14:36
You can say I’d like to speak to my lawyer first. You don’t have to say a word other than I’d like to talk to my lawyer. I’m not prepared to offer you a statement. And and what may happen. If if one side talks and the other side doesn’t what may happen to the side who doesn’t talk?
Scott Cardani 15:08
You may get arrested. We always say that you may get arrested, but it’s worth it. Your statements usually don’t help you. I mean, there are some brilliant people out there who are very good at talking their way out and have been very lucky over their life. And it always catches up with them at some point. So we suggest never talk, never try to talk your way out of it. Talk to us. You do not have to make a statement now, or ever. Quite frankly, is… Again, I say this all the time, but most crimes, the person is found guilty because of their own statements, not because of the evidence. Now, these kind of assault matters. Next, I want to say number two point number two is they are he said she said cases. And that’s a problem for me, because I don’t believe our law set up to handle that and having a trier of fact. But quite frankly, the judge is going to pick one person say he has more credibility than the other. And that’s a very scary place to be. I’ve always believed it should be a no testimony of two or more witnesses. And the reason that is and the reason that was our foundation of our laws, because you can’t just make claims. And then the other side comes in real quick and says, Oh, what about you know, they’ll never catch this person. He always does it in his house and in quiet. And I get that, and we have the greatest empathy. And we’ll help you if that’s you, we’ll help you get the evidence you need. But there’s ways to capture evidence and all kinds of things. But the court shouldn’t operate that way. But that’s a whole nother story. But I won’t get on my soapbox. But it’s a he said she said case most of the time and they go by credibility, the evidence. So having details knowing what happened, if you know that. If the police are called maybe you should sit down the next few minutes and write down exactly what happened in so you’re, you keep it fresh in your mind exactly where you were standing what you were doing all those details matter when you’re defending yourself. When she says Oh, he was doing this, and well, actually, I was over here. And she said he ran down the steps and pushed me into the door. Well, I never left my bedroom, I have proof that because of this, this and this and this, this can really be ways to vindicate yourself and get yourself out of a mess. Again, if you’re in a contested such contentious situation, and you know things are going south turn on your phone, if nothing else, record, right. audio record video record if you can just and don’t. But the bottom line is don’t put yourself in a position in a heated argument never touched the other person. It’s just not worth it today. I mean, you may have been doing it for 20 years only. Please listen to me. Absolutely right. I just suggest not to do it.
Jackie Critzer 17:32
What’s it What about Scott when a parent step parent, future step parent, maybe to fiance or a partner of some sort of lay his hands on one of the children in the home. Now I don’t mean that we’re wrestling and we’re being fun, we’re having fun. But you know, pushes the kid or in some way, you know, can could the parent who’s not present with this parent and the and the friend partner, whatever it is what how does that work? So let me give you a scenario. Let’s say you’ve got a eight year old 10 year old, a child of speaking at least credible could relay a story and comes home and says Dad, I was over at Mom’s and her boyfriend was over and he slugged me in the arm. But there’s not a bruise. But it really hurts. And he hit me because I backed off mom, as the parent who’s hearing the story, are you able to relay that into an assault battery charge is that assault and battery when there’s a child involved? What does that look like?
Scott Cardani 18:33
It is unfortunately, it is. And not unfortunately. It is it’s a when you batter or somebody doesn’t matter the context, it matters whether you had an unwanted touching, doesn’t matter if you’re adult. But obviously there’s a provision for disciplining your child and all those kinds of things. And that’ll have to be another podcast. That’s something I’m very concerned about where we’re going in society. But as a step parent, you have to be very careful. And quite frankly, we’ve had some cases over the years where it was wrestling. And the kid just got mad, because later he got in trouble about something else and use that wrestling match earlier in the day as a context or a pretext to get an assault charge. And a lot of times we can get through that. But and usually kids eventually come clean with the truth. But, you know, if a kid is mad at you, he can say all kinds of things and it’s not very helpful. So that’s about all I want to cover today. I think we’ve covered everything but folks we want to talk about number one, the importance of domestic assault, if you’re charged with domestic assault, number one, don’t talk to anybody. You need to talk to a lawyer. We don’t even say suggest that you may want to talk to a lawyer, you need to talk to a lawyer you need to talk to somebody who’s good on the protective order side divorce side and the criminal law side because they’re important if they’re interacting together and how that works.
Jackie Critzer 19:56
The context number two, the context of the battery rarely matters and domestic assault. It just rarely matters.
Scott Cardani 20:03
It rarely matters and what she said, again, that context what was going on what happened you for years doesn’t matter. It’s an unwanted touching. It’s usually hearsay. And it’s usually He Said, She Said.
Jackie Critzer 20:16
And then the third point, the third takeaway.
Scott Cardani 20:20
Don’t – I can’t read your writing… the heavy penalty. Oh, the heavy penalty. Yeah, I’m sorry. I thought it said hearsay. But heavy penalty. Remember domestic violence – Convictions affect a lot of your civil rights, your gun carrying rights, your rights to own a gun. That’s a big one, obviously. But there are other things that affects and it also sets you up for problems in your future. Because once you’re convicted, you always look like the bad guy. And that’s a real big problem. If you have some kind of contentious relationship.
Jackie Critzer 20:52
It can come up on employment applications as well. Not just have you ever been convicted of a misdemeanor, but have you ever been convicted of domestic assault? Very specifically, they can ask you that. In another podcast, we can get into the consequences and how to handle it once you get to the trial stage and, and whatnot. That’s that’s definitely in another podcast, when it comes to sentencing and the consequences of convictions. But for today, those are the those are the takeaways.
Scott Cardani 21:21
Yeah, can I say one more thing? I think it’s really important. I will start adding this into our podcast. I’ve been thinking about this a lot. We never want you to believe that it’s not – You never talked to the police. When you’re a criminal defendant, you never talk to the police about talking to a lawyer that’s gonna stay with that mantra my whole life. But if Jackie’s witnessing your crime, we’re not saying don’t go tell the police what happened. Right. We want we are the citizenry. We’re part of that process. And we should speak up and we should speak out when we see things that are wrong. Sure. But what we’re saying is just wanted to be specific about that when you’re the person charged, do not talk.
Jackie Critzer 21:56
Yes. Very good. Thank you very much.
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