Domestic Abuse  Iowa Code Chapter 236

The elements of Domestic Abuse Assault under §830.1 are (State v. Daily, 2005 Iowa App. LEXIS 372 (Iowa Ct. App. Aug. 31, 2005)):

1. The defendant did an act which was meant to place the victim in fear of immediate physical contact which would have been painful, injurious, insulting or offensive to the victim; an act could be any of the following:

a. Action that causes pain, injury or an act that would result in physical contact which is insulting or offensive

2. The defendant had the apparent ability to do the act

a. In State v. Cross, (2002 Iowa App. LEXIS 542 (Iowa Ct. App. May 31, 2002)) the court defined that this phrase means no more than that defendant’s expectation of placing another in fear must be reasonable, the emphasis being on the defendant’s intent rather than on the victim’s expectations

3. The act occurred between any of the following:

a. Family or household members who resided together at the time of the incident;

b. Separated spouse or persons divorced from each other and not residing together at the time of the incident;

c. Persons who are the parents of the same minor child;

d. Persons who have been family or household members residing together within the past year but not residing together at the time of the incident

If the State proves all of these elements, the defendant is guilty of Domestic Abuse Assault. If the State has proved only the first two elements, the defendant is guilty of Assault. If the state has failed to prove the first two elements then the defendant is not guilty.

Case Law - discussing whether emotional abuse or the fear of statements from a person amounts to a threat and therefore constitutes a court issuing a no contact order:

1. Offensive language alone does not give rise to a claim for relief under Iowa Code chapter 236 absent evidence of an assault as defined under §708.1. Also, a claim of "fear," standing alone and absent an assault, does not give rise to a claim under chapter 236. In re The Marriage of Jill A. Ihns and Steven C. Ihns, 2005 Iowa App. LEXIS 958, (Aug. 31, 2005).

 

2. The court in Makohoniuk v. Makohoniuk, (2005 App. LEXIS 345 (Iowa Ct. App. Apr. 28, 2005) found that a relevant factor in determining whether an assault occurred is the actor’s intent, rather than the victim’s subjective feelings of fear

3. Issuance of domestic abuse protective order was reversed as the phone call made by the father to a mother wherein he stated that he hoped that the mother and her husband died did not constitute and assault under Iowa Code because the message did not indicate that the father meant to harm the mother and her husband. Hosch v. Rolle, 2006 Iowa App. LEXIS 983 (Aug. 9, 2006).

 

In re The Marriage of Jill A. Ihns and Steven C. Ihns, 705 N.W.2d 506, (Iowa App, 2005).

§ Facts: Wife filed a petition for dissolution of her marriage with husband, but continued living together. Later the wife filed a petition for relief from domestic abuse and granted her a temporary protective order.

o At the hearing the wife testified that he hit her and ripped a set of car keys form her hands. She said he also called her crude and obscene names often in front of her children and was afraid of him. She denied that she had ever assaulted the husband

o The husband denied that he ever assaulted his wife, but did say that she was the aggressor and left scratches on his arm. He also said he never said anything bad in front of the children.

o Husband had neighbor as a witness to say that the wife had assaulted him and also had the sheriff as a witness for when husband had called the police when his wife assaulted him

o The lower court granted the wife’s protective order

§ On appeal court found that the wife was not entitled to relief

o Court quoted Iowa Code chapter 236, which states that, a person seeking protection from domestic abuse must prove "the allegation of domestic abuse by a preponderance of the evidence." Iowa Code § 236.4(1).

o Court notes that there are no witnesses solidifying the wife’s claims, therefore they look to the credibility of the claimant.

§ They found that the wife was not credible because her claim was undermined by husband’s witnesses

§ Court therefore reversed the lower court’s order.

§ Court mentions on a side note that the husband’suse of offensive language toward the wife may be worthy of condemnation, but then said that "offensive language alone, does not give rise to a claim for relief under chapter 236, absent evidence of an assault.

o Court also said, "a claim of "fear," standing alone and absent an assault, does not give rise to a claim under chapter 236.

 

Makohoniuk v. Makohoniuk, 698 N.W.2d 336 (Iowa App. 2005).

§ Renee filed a Petition for Relief from Domestic Abuse in the Iowa District Court for Dallas County. The petition alleged that Renee had been the victim of "constant emotional, verbal and mental abuse" and that Richard had stalked her.

§ During the hearing on her petition, Renee detailed a lengthy history of verbal and other abuse by Richard.

o In particular, Renee recounted an incident that occurred on June 22, 2004. She testified that, after taking longer than usual to put the kids to bed, she went into her bedroom where Richard was already asleep. Because his arm was on her pillow, she moved it off and climbed into bed. Renee testified that Richard began a "verbal assault" in which he questioned why it took her so long to come to bed and why she had "thrown" his hand off the pillow. Renee further testified that she then got out of bed and declared that she would sleep in another room. Richard followed her down the hall with "loud stomping at my heels." Renee entered another bedroom and Richard stopped outside. Renee claimed she then heard loud footsteps and Richard opened the door and continued to yell at her.

§ Following the presentation of evidence, the district court made the following statements on the record:

o The court held that the question is whether the defendant committed an assault as defined in section 708.1 of the code.

§ They found that he did commit an assault and that the assault occurred on June 22nd and that his actions placed her in fear of immediate physical contact which would have been injurious, painful, insulting or offensive and it was coupled with the ability to execute that act.

§ Richard appeals from this order, contending "the trial court erred in issuing the final protective order because Renee failed to produce evidence that Richard assaulted her."

§ Court of Appeals noted that the court made findings irrelevant to the question of whether an assault occurred.

o The relevant factor is the actor's intent, rather than the victim's subjective feelings of fear.

§ With de novo review of the record the court found that Richard assaulted Renee during the June 2004 incident. Richard's prior history of physical assault against Renee and pinching the children combined with his frequent displays of aggressive anger against Renee and the children lead them to find that Richard intended to place Renee in fear of immediate physical contact which would be painful, injurious, insulting, or offensive; and he had the apparent ability to execute the act when he yelled at and stomped behind Renee during the June 2004 incident.

§ Accordingly, the Appellate Court affirmed the court's entry of a protective order.

 

Hosch v. Rolle, 2006 Iowa App. LEXIS 983 (Aug. 9, 2006).

§ Thomas Rolle and Natalie Hosch divorced approximately seven years ago. They had two minor children. Rolle allowed Hosch's husband could adopt them. An agreement between the parties allowed Rolle to maintain certain contact with the children.

§ Rolle was upset about Hosch's compliance with the agreement. He called her and left a message in which he said, "You and your current husband rot in hell, I hope you die."

§ Hosch filed a petition for relief from domestic abuse.

o She alleged that Rolle had been calling and harassing her and her family in the seven years following their divorce, including flying over her farm in an ultralight plane on four occasions and driving by the home.

o She cited the November 1, 2005, phone call as the most recent threat. Hosch also testified that in the seven years since the divorce

o Rolle had never been on her property or touched her.

§ Following the hearing, the district court entered a protective order. In its order denying Rolle's post-judgment motion, the court found Rolle's phone message "constituted an act intended to place another in fear of immediate physical contact which would be painful, injurious, insulting or offensive to the Petitioner coupled with the apparent ability to do the act" and concluded the message constituted an assault.

§ The appellate court then defined assault under Iowa Code § 236.2(2)(b) (2005). (Also defined above

§ Upon de novo review, the court concluded that the evidence is not sufficient to support a finding Rolle assaulted Hosch.

o They said that Rolle's phone message to Hosch did not indicate that he intended to bring about harm to Hosch or her husband.

§ However, the court said that even if they considered the message a threat, it does not meet the definition of assault.

§ By threatening another with immediate serious injury, an assault is not necessarily committed. State v. Law, 306 N.W.2d 756, 759 (Iowa 1981). A mere threat, without more, is not necessarily an assault by placing another in fear.

o Court also found that on Rolle's post-judgment motion, the district court focuses on Hosch's belief that Rolle had the apparent ability to execute the act which he threatened. However, the ability to execute such act must be apparent to the offender, not the victim. Bacon v. Bacon, 567 N.W.2d 414, 418 (Iowa 1997).

§ At the time he made the phone call, Rolle was in LaMotte, many miles from Hosch's home. He never approached Hosch or her home that day or in the six days following.

§ The court reversed the protection order and remanded for dismissal of the petition for relief from domestic abuse.