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Just One Lawyer's Opinion

Missouri’s New Class E Felony and 3rd Degreee Domestic Assault

    Representing parties in a divorce often also includes certain criminal law cases. Domestic assault is one example. For years Missouri had four levels of felony crime, A, B, C and D, and four levels of misdemeanor crime, A, B, C and D. Beginning January 1, 2017, Missouri introduces a new domestic assault law and with it Missouri  also  introduces the CLASS E FELONY!

    Third Degree Domestic Assault seems to me the most applicable to the level of conflict in a substantial number of divorces. With Missouri’s new 2017 code, the former Class A Misdemeanor law with 300+ words is replaced by a Class E Felony law with a mere 50 words. Gone are legal terms of art such as “reckless,” “criminal negligence,” apprehension of immediate physical injury,” “grave risk” and so on.

    The new law is vague and lacks objectivity (i.e.- it's subjective). Third Degree Domestic Assault formerly required a physical injury by a deadly weapon or dangerous instrument, fear of immediate physical injury, serious isolation, grave risk of death or serious physical injury or offensive contact. The new law only requires an attempt to cause physical injury or knowingly causing physical pain. Plus, this law wipes out years of case law which explained the law and put it in context with other law and societal norms. 

    It doesn't take much to violate this law! In legal terms, Third Degree Domestic Assault is to some extent an inchoate crime. That means it is preliminary to another crime or a crime of anticipation, like attempt, solicitation, or conspiracy. You don’t believe me? Read the text of the law for yourself:

“1. A person commits the offense of domestic assault in the third degree if he or she attempts to cause physical injury or knowingly causes physical pain or illness to a domestic victim, as the term "domestic victim" is defined under section 565.002.
2. The offense of domestic assault in the third degree is a class E felony.”
§ 565.074 RSMo (2017)

    My Mother, a Felon? What was my first thought when I read this new law? I was raised by felons! My dear mother was five feet tall and 95 pounds soaking wet. She is a Saint in my book, but when I needed it she spanked me, pinched my ear when I needed to be “led” somewhere, and so on. In short, Mom caused me pain and I am better for it. This new law brings new consequences to the corporal punishment by parents, a lovers’ spat, family arguments at the softball game, football or soccer practice, etc. ("No pain, no gain.")

    A Felony for What was a Misdemeanor. That brings up the second BIG change: IT IS A CLASS E FELONY! There are all kinds of things that felons can’t do. Here is a short, but not comprehensive, list:

    Parental Custody and Visitation. A felony for domestic assault is a red flag for any family law judge. Fathers have a hard enough time getting equal custody and visitation. This Class E felony will make equal visitation unattainable, and for what? Consider also that certain “counselors” teach women to fire the opening salvo in a divorce. Just “get him to hit you,” and the rest of the divorce will fall in place. 

    Concealed Carry. In 1934 the federal government passed a law banning any person convicted of a violent felony from owning a gun. Missouri’s Third Degree Domestic Assault has violence woven into its name, even though the wording of the law is vague and liberal, it is now a felony! Forget your right to carry. You can’t own a gun unless you get your crime expunged. In Missouri, the expungement statute wiped out all prior case law and judicial discretion. If you were convicted or pled guilty, forget expungement in Missouri.

    Employment. “Have you ever been convicted of or in the past pleaded guilty to a felony?” That question is allowed on employment applications. Answer it honestly and you won’t get hired. Fail to answer it honestly and, when it comes time to downsize, the employer will fire you after years of employment “for cause” citing your application. No unemployment compensation for you.

    Voting Rights. Felons face various restrictions on voting. Some restrictions are just annoying. Others ban felons in varying degrees.

    Public Social Benefits. Public Housing, food stamps, and some other public social benefits are, in some states, restricted.

    If you have a family law problem, whether or not you have been served papers, I will be happy to sit with you in a complimentary consultation. Within 20-30 minutes you'll know what you can do for yourself and what you would be better off having an experienced attorney handle.

Gordon Rea

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