Domestic Violence Expungement
Domestic violence is not a crime in and of itself. There are no domestic violence laws or statutes that make up charges you can be convicted of. Instead, domestic violence is a term used to categorize certain crimes carried out against a person protected by the Domestic Violence Act. The definition varies between states.
What is Domestic Violence?
To determine whether a crime is domestic violence, we must look at the type of crime and who it was carried out against. In New Jersey, the following offenses can be considered domestic violence: homicide, assault, terroristic threats, kidnapping, criminal restraint, false imprisonment, sexual assault, criminal sexual contact, lewdness, criminal mischief, burglary, criminal trespass, harassment, and stalking. These offenses must be carried out against a person protected by the New Jersey Prevention of Domestic Violence Act of 1990. Persons protected include: spouse, former spouse, or former/present household members.
For example, an assault against a former spouse is domestic violence, whereas that same assault against a stranger is not. However, distributing drugs to a former spouse is not a crime of domestic violence.
Conviction. To expunge a domestic violence conviction, you are really just expunging the crime you were convicted of. Out of the fourteen crimes that could be considered domestic violence in New Jersey, two are never eligible for expungement: homicide and kidnapping. Four are sometimes eligible: criminal restraint (if the victim is a minor and the offender is not the parent), false imprisonment (if the victim is minor and the offender is not the parent), sexual assault (if aggravated), and criminal sexual contact (if victim is a minor).
The remaining eight crimes are almost always eligible:
- terroristic threats
- criminal mischief
- criminal trespass
Dismissed. Oftentimes, the court will dismiss a domestic violence charge in exchange for participation in an anger management or other similar program. The most common dismissed charge is simple assault. A dismissed charge is always immediately eligible for expungement.
A retaining order is a legal tool used to limit a person’s freedom in order to protect another person from domestic violence. It is extremely important to note that a restraining order is a civil order, not a criminal offense. Therefore, it does not show up on a person’s criminal record. An expungement can only clear a person’s criminal record. Since a restraining order is not criminal, it is not eligible for an expungement.
There is a federal gun ban for people that have been convicted of domestic violence as defined by federal law. The federal law is narrower than New Jersey’s, which means a conviction that is considered domestic violence under NJ law may not be so under federal law. Furthermore, gun rights may be restored with an expungement.