Domestic violence is a serious problem in our society. It is much more likely that a person's abuser is someone they share a close relationship with, rather than a stranger. In recognizing this, California and most other jurisdictions treat domestic violence as a special type of crime; one which can not only carry harsh penalties, but can also trigger additional protective measures for the benefit of the victim. Spousal abuse is a subset of crimes within the broader framework of domestic violence. It deals specifically with crimes of violence perpetrated by a person who is, or was, in an intimate relationship with the alleged victim.

Typically, this form of physical abuse will occur between spouses (e.g., a husband and wife), hence it is commonly referred-to by the name "spousal abuse." This is reflected in the construction of the Penal Code sections that cover these types of crimes. In each Penal Code section, the law starts by identifying a "spouse" as a person covered by the statute. However, a marital relationship, past or present, is not necessary for this crime to be committed, as the Penal Code also covers a range of other relationships of an "intimate" nature. Girlfriends, boyfriends, ex-spouses and a number of other types of relationships are all covered under what are generally referred-to as "spousal abuse" laws.

What is Spousal Abuse:

Spousal abuse is first-and-foremost a crime of physical violence. Inflicting mental or emotional injury on another person may well be illegal, it may even be criminal in some situations; but those types of injuries do not constitute spousal abuse as defined by the California Penal Code in sections 243(e)(1) and 273.5. To violate these sections, a person must commit a battery or inflict a physical injury on another person with whom they share an intimate relationship. Yelling at, screaming at, insulting or even threatening such a person does not constitute spousal abuse as defined by these code sections (though some of these actions may, in certain situations, violate other civil or criminal laws.)

So, what is an "intimate" relationship? Who qualifies and under what circumstances? There are actually quite a few different types of relationships that qualify as being "intimate." The most common is that of spouses; a husband and wife or a married same-sex couple. However, the law recognizes other types of relationships beyond that of presently married couples, and affords them the same protections.

Section 243(e)(1) of the California Penal Code identifies the following types of relationships:

  • A spouse;
  • A former spouse;
  • A person the defendant cohabitates with;
  • If the defendant has a child, that child's other parent;
  • A fiancé or fiancée; and
  • Any person the defendant is, or was, dating.

Section 273.5 of the California Penal Code identifies the following types of relationships:

  • A spouse;
  • A former spouse;
  • A person the defendant cohabitates with;
  • A person with whom the defendant formerly cohabitated;
  • If the defendant has a child, that child's other parent;
  • A fiancé or fiancée; and
  • Any person the defendant is, or was, dating.

As you can see, the coverage of the statutes is fairly expansive. Both Code sections cover largely the same classes of people, with section 273.5 including one more category than 243(e)(1) (i.e., former cohabitants).

What is the Difference Between California Penal Code Section 243(e)(1) and 273.5:

Besides section 273.5 of the Penal Code covering former cohabitants, when section 243(e)(1) does not, there are a few significant differences between the two code provisions.

The biggest difference between the two is that a violation of section 243(e)(1) is only chargeable as a misdemeanor, while section 273.5 violations are misdemeanors or felonies.

The other significant difference between the two is that while 243(e)(1) can be charged whenever a battery occurs, 273.5 will only be charged when a battery results in a "corporal injury" that results in a "traumatic condition." Section 243(e)(1) is, by far, the more inclusive of the two. Any violation of section 273.5 will necessarily also result in a violation of 243(e)(1), as the former cannot take place without a battery, and the latter covers all batteries.

There are a few terms here that require a little unpacking.

First is battery. A battery is essentially any intentional, unlawful use of either force or violence on another person. The most obvious example would be punching someone. However, California courts have interpreted the term to encompass a wide range of behaviors. Included in this wide-ranging definition is any type of offensive physical touching. Spitting on someone, for example, constitutes a battery, as does any unwanted touching of another.

Next we have "traumatic condition." Section 273.5 provides a definition for this term so it is fairly easy to determine what it means. In short, a traumatic condition is any wound, internal or external injury caused by physical force. It does not matter whether the wound or injury is major or minor. The definition of traumatic condition also specifically includes any sort of strangulation or suffocation, which results in preventing or impeding normal breathing or circulation of a person's blood. A bruise, red mark, or scratch, ever so slight, is still considered a traumatic injury.

Finally, we have the term "corporal injury." This is not defined in section 273.5, but it doesn't really need to be. A corporal injury is any injury, inflicted by a battery that can result in a traumatic condition. Remember that the crime of battery cannot be constituted by an unintentional or accidental act, it must be committed intentionally.

So, the most simplistic understanding of a violation of California Penal Code section 273.5, is that the law is violated when a person who is, or was, in an intimate relationship with another person, intentionally strikes, strangles or suffocates that person, such that the victim is wounded (whether the wound is major or minor) or has their ability to breathe or circulation cut-off; then section 273.5 has been violated and the offender is subject to prosecution for felony spousal abuse.

Mutual Combat:

While most instances of spousal abuse involve one person acting violently toward their intimate partner, there are nevertheless cases where both individuals attack each other. We would call this situation mutual combat. In such a case, who can, or will likely, be arrested and prosecuted?

As a practical matter, due to long-standing social norms and conventions, in a male-female relationship, the male is much more likely to be the one who is arrested and prosecuted, even though the law acts in a gender-neutral manner. However, this will not always be the case, especially if the male is slight in build and the female is significantly larger or more muscular. It will also not be a factor for cases involving same-sex couples.

Traditional gender biases aside, there are a couple of important things to note in cases where both parties are engaging in mutual combat.

First, it is unlikely that both parties will be arrested and prosecuted. Police officers, when they are called to a scene, will generally determine who the primary aggressor to an incident was, and arrest only that person.

Second, in cases of mutual combat, the issue of self defense becomes critical for the person who is arrested and prosecuted. Because both individuals were attacking each other, the person being prosecuted may have the opportunity to defend themselves by claiming that they were merely fending off an attack from the other person. The courts have dealt with this issue before, and there are jury instructions that cover this situation. According to those instructions, if a person is engaged in mutual combat, whether or not they started the incident; self defense is available as a defense to a charge, only if they acted in good faith to stop the fighting. Additionally, they must communicate to the other combatant, whether verbally or otherwise, that they want to stop fighting, and they must provide the other combatant a reasonable opportunity to stop fighting. If those conditions are met, then the individual can claim self-defense, even though they engaged in mutual combat, and may even have initiated the incident.

Examples of Spousal Abuse:

  • Mark and Amy are boyfriend and girlfriend. They have been living together for over two years, and have generally had a good relationship for most of that time. However, Mark has been having a difficult time at work lately, has begun drinking more heavily and has been coming home drunk; something he never used to do. Mark is what is known as an "angry drunk." One evening, Mark became drunk after work, then drove home. When he arrived, Amy got in Mark's face and started yelling at him because he drove drunk, and could have hurt himself or someone else. Not only was Amy angry because drunk driving is illegal, it is also very dangerous and Amy was scared for Mark's safety. Mark reacted negatively to this, told Amy to leave him alone. He then shoved her out of the way, knocking her to the ground, but not otherwise injuring her. Fearing that Mark's behavior may escalate, Amy called the police and told them that Mark had intentionally knocked her to the ground. Mark was then arrested and charged with battery on a spouse, a violation of Penal Code Section 243(e)(1).  Since Amy did not suffer a traumatic injury, Mark would not be guilty of Penal Code Section 273.5.

  • Fred and Elsa were married for 10 years. During that time, Fred became increasingly abusive toward Elsa, until she decided she had suffered enough and filed for divorce. After the divorce was final, Fred realized that he missed Elsa and didn't want to be alone. So, Fred went to visit Elsa to try and mend fences. However, when Fred went to visit her, he saw another man leaving her house as he approached. Enraged, Fred burst into Elsa's house and began yelling at her, accusing her of divorcing him because she was cheating. Elsa tried to calm Fred down, insisting that she was always faithful, and that she divorced him because he was abusive. This just made Fred angrier, and he then grabbed Elsa by the throat and began to squeeze. Elsa kicked Fred in the crotch, broke free, locked herself in the bedroom and called the police. When the police arrived, Fred was still there. He denied choking Elsa, but she still had faint marks on her throat from where he had choked her. Fred was then arrested and charged with felony spousal abuse.

  • Rob and Steven have been dating for a little over a year, and moved in together just a few months ago. Things were going smoothly until one day when Rob took a look at Steven's phone and saw that Steven was cheating on him with a co-worker. Rob became furious and started shoving Steven. Steven told Rob to back off, it was not what he thinks and he could explain. Rob persisted, and continued shoving Steven. After a few attempts to get Rob to stop shoving him, Steven had enough and punched Rob hard in the face, giving him a black eye. Rob then grabbed a book off a shelf and threw it at Steven, hitting him in the head, and giving him a pretty nasty cut. A neighbor who heard the fight called the police. When the police arrived, both Rob and Steven were honest about what happened. After hearing from both men, the police arrested Rob because he was the primary aggressor, and Steven attempted to stop the violence before he acted in self defense. Rob was then charged with felony spousal abuse because hitting Steven with the book caused a bleeding wound on his head.     

How Does a Prosecutor Prove Spousal Abuse:

To show that the defendant is guilty of spousal abuse under either Penal Code Section 243(e)(1), the prosecution has to prove the following elements:

(1) An act, which results in the physical touching of another person;

(2) That person is, or was, in an intimate relationship with the defendant;

(3) The act which resulted in a person being touched was intentional or willful; and

(4) The touching of the other person was offensive or harmful.

To prove a violation of section 273.5, the prosecution must prove these elements:

(1) An act, which results in the physical touching of another person;

(2) That person is or was in an intimate relationship with the defendant;

(3) The act which resulted in a person being touched was intentional or willful;

(4) The touching resulted in a corporal injury; and

(5) The corporal injury resulted in a traumatic condition.

Keep in mind that these crimes require the prosecution to prove intent. A person can only be convicted of these crimes if the prosecution can show that the defendant intended to commit a battery. If it was the result of an accident, negligence or simple carelessness, the defendant cannot be convicted.

The prosecution does not, however, need to prove that the defendant knew or believed they were in an intimate relationship with the victim. Whether or not that intimate relationship exists is defined by law, and does not depend on the defendant's understanding of either the law or the nature of their relationship with the victim. A defendant can be convicted of these crimes whether or not they personally believe that these laws apply to them.


The crime of spousal abuse under section 243(e)(1) is a misdemeanor. whereas a violation of section 273.5 is treated both as a misdemeanor or as a felony. Depending on the facts and circumstances of a case, a defendant can be charged with both crimes.

Misdemeanor spousal abuse (battery, violating section 243(e)(1)) can result in the following penalties:

(1) 3-4 years’ Summary or Formal probation;

(2) Up to one year in county jail; and/or

(3) A fine of up to two thousand dollars ($2,000);

(4) A required 52 week Batterers’ Treatment Class.

If probation is granted to a person after their conviction, the court may impose certain additional conditions on that person in lieu of requiring payment of a fine. The person could be required to pay up to $5,000.00 to a battered women's shelter, and/or reimburse their victim for any reasonable costs incurred as a result of the crime committed, such as the cost of counseling.

Felony spousal abuse (inflicting corporal injury, violating section 273.5) can carry the following penalties:

(1) 5 years’ Formal probation;

(2) Up to four (4) years in county jail or prison; and/or

(3) A fine of up to ten thousand dollars ($6,000.)

(4) A required 52 week Batterers’ Treatment Class.

A violation of Penal Code Section 273.5 can also be prosecuted as a misdemeanor, in which case the following penalties can ensue:

(1) 3-4 years’ Summary or Formal probation;

(2) Up to one year in county jail; and/or

(3) A fine of up to two thousand dollars ($2,000);

(4) A required 52 week Batterers’ Treatment Class.

As with a violation of section 243(e)(1), if a person is granted probation after their conviction, the court may impose the same additional conditions on the person; (1) payment of up to $5,000.00 to a battered women's shelter and payment of the victim's reasonable expenses.

Repeat Offenses:

On a first offense for spousal abuse, the penalties are generally limited to what is described above. However, if a person engages in repeat offenses, within a seven (7) year period; they may be subject to additional or more severe penalties.

In the case of repeat offenders, violations of section 243(e)(1) and 273.5 overlap, meaning that a conviction for violation of one section can trigger the repeat offense penalty provisions of the other.

The additional penalty for repeat offenses in section 243 is fairly mild. Essentially, if a person violates section 243(e)(1), and is a repeat offender, they must be jailed for a minimum of 48 hours, even if the imposition of their sentence is suspended. However, a court may waive this mandatory jail time upon a showing of good cause.

The additional penalties for repeat offenders under section 273.5 are much more severe. There are mandatory jail time requirements of fifteen (15) days for a second offense within seven (7) years, and a minimum of sixty  (60) days for a third offense within seven (7) years. However the court may, as with section 243(e)(1) violations, waive the mandatory jail time if good cause can be demonstrated.

In addition to minimum jail time, the potential prison time for repeat offenses can be up to five (5) years in prison, and the potential fine increases to $10,000.00.


Self-defense or Defense of Others:

There may be certain circumstances where a person will engage in acts that constitute spousal abuse, but for which there is a complete defense. Self defense or defense of others can be among these complete defenses. For  example, if your spouse is physically attacking you (i.e., they themselves are committing spousal abuse) and you respond by hitting them back to stop them; while you technically committed spousal abuse as well, your actions may come under the complete defense of self defense. The same goes if your spouse is physically beating your child, and you knock them over the head to prevent harm to your child. However, for this defense to apply, your actions must be reasonable and proportional to the harm you are attempting to prevent.   .

Lack of Intent:

If you do not willfully commit a battery or intentionally injure someone with which you share an intimate relationship, you can claim the defense known as lack of intent. The most obvious example of this would be if you battered or injured someone by accident. For this defense to work, you must not have intended to batter or injure any person. If for example you intended to punch a stranger, but missed and hit your spouse, the defense may not work because you intended to commit a battery, or inflict injury; you simply missed and hit the wrong person.

Actual Case No. 1

Ned was accused of stabbing his girlfriend, Jane, with a shard of broken glass after she had intentionally thrown down a vase and broke it.  Jane suffered significant wounds from the glass, requiring stitches.  Through thorough investigation we were able to shed suspicion on Jane’s story, because we brought to light that she had a criminal history.  Also, we demonstrated that Jane kept making efforts to extort money from Ned in return for promises of “dropping the charges”.  Finally, we showed that Jane’s wounds were consistent with her slipping on the glass and cutting herself.  As a result of our efforts we were able to get the charges dismissed.

Actual Case No. 2

Pete was accused of striking his girlfriend, Judy with a stick.  There was even a cell-phone video showing the incident and an eyewitness.  Our investigation including speaking to the alleged victim and the eyewitness, demonstrated that Judy first had the stick and that Pete merely took the stick away from her and then blocked her blows with the stick.  We also showed that the eyewitness had a history of mental disease and paranoia.  As a result, we were able to get the felony charges dismissed. 

How We can Help:

David Foos has been successfully defending men and women accused of domestic violence crimes for 40 years.  David has a track record of proven success in defending spousal abuse offenses.  First David will consult with you and analyze with you the situation step by step.  David will analyze the facts and determine the best defenses for you.  Next David will have his team of investigators speak to all the witnesses and gather all the favorable evidence for you.  David will speak present your strongest possible case to the prosecutor in an effort to get the charges dismissed.  If need be, David will fight your case to a jury trial and use his knowledge and experience to present the strongest possible defense.  You can always be sure that David will be squarely in your corner and putting the best possible efforts to provide a strong defense for you. Contact our Sacramento criminal lawyer at 916-779-3500 or on the web at This email address is being protected from spambots. You need JavaScript enabled to view it., for a no-cost consultation.