DIVISION OF CHILD ABUSE AND DOMESTIC VIOLENCE SERVICES
Department for Human Support Services
Cabinet for Health and Family Services

The Application of Criminal Law in Cases of Domestic Violence and Abuse

The Kentucky Penal Code

In 1974, the Kentucky Legislature enacted the Penal Code. The Code contains statutes, which define what constitutes a crime in the state of Kentucky. Before the passage of the Penal Code, it was not the legislature, but the courts, through the common law, which had defined the various crimes. Pursuant to the Code, a person can be found guilty of committing a crime only when the Commonwealth proves, beyond a reasonable doubt, that an individual committed all elements of that crime.

The Penal Code provides for three categories of crimes: felonies, misdemeanors, and violations. Generally, a felony results in a minimum prison sentence of one year, a misdemeanor carries a maximum sentence of one year, and a violation results only in a fine. Both felonies and misdemeanors are divided into categories ranging from Class A, the most serious, to Class D, the least serious. There is no statute of limitations for felony prosecutions.

The Penal Code provides for four degrees of mental states and for various forms of accountability. A defendant may act "intentionally" to bring about a result or act "knowingly" to engage in particular conduct of which she is aware. The other two types of mental states are elements of crimes of a lower degree than the first two. A defendant may act "wantonly" when she consciously disregards a substantial and unjustifiable risk that a result will occur. Or she may behave "recklessly" when she fails to perceive a substantial and unjustifiable risk that a result will occur. With respect to the latter two mental states, there must be a gross deviation from the standard of care or conduct that a reasonable person would observe in the situation. “Wanton” conduct involves conscious risk taking while “reckless” conduct involves inadvertent risk-creation.

Finally, the Penal Code provides that an individual is accountable not only for his own actions, but under the theory of complicity may also be held liable for a crime, which is physically committed by another. Under KRS 620.010, parents have a duty to protect their children from abuse or assault. When a parent fails to fulfill that duty, she may be convicted of complicity to assault under the legal duty theory set forth in the complicity statute. See Lane v. Com., Ky., 956 S.W.2d 874 (1997). There is no difference in punishment for an individual who is found guilty of complicity to commit a crime, and for an individual who physically commits the crime.

Domestic Violence-Related Crimes

Any crime contained in the Penal Code can be committed in the context of domestic violence. However, certain crimes are much more common, both in the sense of being committed against battered women, and being committed by women who are in abusive relationships. A chart found in the Appendix gives the elements for these most common crimes, their designation as a felony or a misdemeanor, and the penalty range.

Menacing, Terroristic Threatening and Harassment

A perpetrator, who intentionally places another person in reasonable apprehension of imminent physical danger, is guilty of menacing. An allegation that the perpetrator waved a gun at the victim is sufficient to constitute the crime of menacing. Graham v. Com., Ky.App., 667 S.W.2d 697 (1983). A perpetrator who threatens to kill or seriously physically injure a victim has committed the crime of terroristic threatening. A perpetrator, who makes no threats but follows a person about public places or engages in a course of conduct that alarms or seriously annoys another which serves no legitimate purpose, is guilty of harassment. A perpetrator may also be guilty of harassment, if he strikes, shoves, kicks or otherwise subjects his victim to physical contact.

A related crime is that of harassing communications, which is committed when a perpetrator, with the intent to harass, annoy or alarm another person, communicates by telephone, mail or other form of written communication, in a manner which causes annoyance or alarm and serves no legitimate communication. He may also be guilty of harassing communications, if he makes a telephone call with no purpose of legitimate communications.

Stalking

If the perpetrator does more than make a single threat, and instead continually follows and threatens his victim with serious physical injury, death, or sexual contact, he has committed the crime of stalking. Stalking requires a pattern of conduct consisting of at least two acts, which seriously alarm, annoy, intimidate, or harass the victim and would cause a reasonable person to suffer substantial mental distress. Stalking is a misdemeanor, but escalates to a felony when a protective order has been issued and the perpetrator received notice of such, a criminal complaint by the same victim is currently pending and the perpetrator has received notice, the perpetrator committed his crime of stalking while in possession of a deadly weapon, or the defendant previously has been found guilty of a felony or Class A misdemeanor committed against the same victim. The Court of Appeals upheld the stalking statute against a constitutional challenge of vagueness and overbreadth. Monhollen v. Com., Ky.App., 947 S.W.2d 61 (1997).

Assault

When a perpetrator actually physically injures his victim, he has committed the crime of assault. There are four degrees of assault, varying in the intent with which the perpetrator committed the assault, the seriousness of the injury inflicted, and the use or absence of a deadly weapon or dangerous instruments. Assault may result in either physical injury or serious physical injury, both of which are defined terms. While the statute defines "physical injury" as substantial physical pain or any impairment of physical condition, the courts have interpreted the statute as including any injury. Covington v Commonwealth, Ky., 849 S.W.2d 560 (1992). "Serious physical injury" means physical injury, which creates a substantial risk of death or causes serious and prolonged disfigurement or impairment of health, or prolonged loss or impairment of any bodily organ.

The use of a deadly weapon or a dangerous instrument enhances the level of the assault offense. Steel-toed shoes and scissors were deemed dangerous instruments where defendant kicked the victim in her side while wearing steel-toed work shoes and stabbed victim in the thigh and pelvic/vaginal area with scissors. Potts v. Commonwealth, Ky., 884 S.W.2d 654 (1994); Wyatt v. Commonwealth, Ky. App., 738 S.W.2d 832 (1987) (cars have been determined to be dangerous instruments); Crumbaugh v. Com., Ky., 259 S.W.2d 67 (1953) (telephone is a deadly weapon). Perhaps indicative that most objects can be turned into dangerous instruments is the case of Smith v. Commonwealth, Ky., 610 S.W.2d 602 (1980). There, the court determined that a carrot was a dangerous instrument. In that case, the defendant forcibly inserted a carrot into his wife's rectum and vagina, causing physical injury.

A person who commits a third or subsequent assault against a family member or member of an unmarried couple may, at the discretion of the prosecutor, be prosecuted for a Class D felony.

Wanton Endangerment

A perpetrator, who wantonly engages in conduct that creates a substantial danger of physical injury to his victim, commits the crime of wanton endangerment in the second degree. It escalates to first degree wanton endangerment, if the conduct created a substantial danger of death or serious physical injury and if the defendant acted under circumstances manifesting extreme indifference to the value of human life. The types of conduct punishable under these statutes include such things as discharging firearms in public, pointing firearms at others, and obstructing the public highways. Pointing a gun at any person, whether the gun is loaded or unloaded, constitutes conduct that creates a substantial danger of death or serious physical injury to another person provided there is a reason to believe the gun is loaded. Key v. Com., Ky.App., 840 S.W.2d 827 (1992). It also includes shooting of a gun near the victim. Id. Allegations that defendant, who repeated had sexual relations with victim without informing her that he was HIV positive, constituted the crime of wanton endangerment. Hancock v. Com., Ky.App., 998 S.W.2d 496 (1998).ntainers which are attractive to ren.

Sexual Offenses

The sexual assault provisions are contained in Chapter 510 of the Penal Code, and include the crimes of rape, sodomy, and sexual abuse. Rape in the first degree consists of engaging in sexual intercourse with another by forcible compulsion or engaging in sexual intercourse with a child under twelve or with one who is physically helpless. The definition of sexual intercourse not only includes intercourse in the ordinary sense but it also includes penetration of the sex organs by a foreign object manipulated by the perpetrator.

Forcible compulsion means not only force, but also a threat of force, either express or implied, which places a person in fear of immediate death, physical injury to self or another person, fear of immediate kidnap of self or another person, or being the victim of a crime found within the chapter. In one case, for example, the perpetrator kept his stepchildren in a home environment where they lived in a continual state of fear concerning what he might do to them. The court determined such threats and emotional abuse met the definition of forcible compulsion. Yarnell v. Commonwealth, Ky., 833 S.W.2d 834 (1992). Physical resistance on the part of the victim is not necessary.

First degree sodomy applies to deviate sexual intercourse. Like first degree rape, it applies when the perpetrator commits his crime through the use of forcible compulsion, against a victim who is physically helpless, or a child less than twelve. Deviate sexual intercourse is defined as any act involving the sex organs of one person and the mouth of another, or penetration of the anus of one person by a foreign object manipulated by another person.

Similarly, first degree sexual abuse applies to a perpetrator who subjects another person to sexual contact by forcible compulsion, or has sexual contact with someone physically helpless or a child under the age of twelve. The remaining degrees of rape, sodomy, and sexual abuse require no element of forcible compulsion and generally apply to underage victims.

Finally, a person who commits a third or subsequent misdemeanor sexual offense may, at the discretion of the prosecutor, be prosecuted for a Class D felony.

Unlawful Imprisonment and Kidnapping

A perpetrator, who knowingly and unlawfully restrains another person, commits unlawful imprisonment in the second degree. The offense increases to the first degree, if the perpetrator’s act of restraint exposes the victim to a risk of serious physical injury. The offense escalates to kidnapping, if the perpetrator restrains the victim to hold him for ransom or reward, to accomplish the commission of a felony, to inflict bodily injury or to terrorize the victim or another, to interfere with the performance of a governmental or political function, or to use him as a shield or hostage. Kidnapping ranges from a Class B felony to a capital offense, depending upon the degree of injury sustained by the victim.

Complicity

There are some crimes where not only does the perpetrator of domestic violence incur criminal liability, but his spouse or partner may also risk facing criminal charges. The complicity statute has been used to find women guilty for acts perpetrated by their partners upon the women's children. A person is guilty of complicity when he or she aids or counsels another person in the commission of an offense, or has a legal duty to prevent the commission of the offense and fails to do so. Courts in Kentucky have found women guilty of complicity to rape when their partners raped the women's daughters. Gilbert v. Commonwealth, Ky., 838 S.W.2d 376 (1991); Waters v. Kassulke, 916 F.2d 329 (6^th Cir.1990). In both cases, the court felt that the woman had actually assisted the perpetrator in the commission of the rapes. Neither case addressed the question of whether the woman herself was a victim of abuse by the perpetrator.

Criminal Abuse

The crime of criminal abuse provides that a defendant will be found guilty if he abuses another or if he permits another person, who is under twelve years of age, physically helpless or mentally helpless of whom he has actual custody to be abused. The victim must be seriously physically injured, or be placed in a situation that may cause serious physical injury, or be subjected to torture, cruel confinement or cruel punishment. The degree of the abuse committed depends upon the mental state of the defendant. The clear language of the statute here would indicate that a woman may be found guilty for failing to act to prevent abuse of her child.

Homicide and Manslaughter

Both perpetrators of domestic violence who kill their victims, and battered women who kill face punishment for homicide or manslaughter. A battered woman who kills her batterer may want to assert that she killed him in self-defense. A self defense claim requires that the person be defending against the use of force which is imminent and which causes her to believe that she is at risk of death, serious physical injury, kidnapping, or compelled sexual intercourse. KRS 503.050. The fact that the victim believes danger is imminent can be inferred from a past pattern of repeated serious abuse. KRS 503.010. In such cases, the victim may be permitted to introduce evidence of battered spouse syndrome.