Criminal Justice

Myth vs. Fact: SQ 805 and domestic violence

August 31, 2020

Ryan Haynie

Each criminal law typically provides a sentencing range. In Oklahoma, a separate law allows “sentence enhancements” that can result in sentences much longer than the original range for many crimes—sometimes up to life in prison—if a person has prior convictions.

State Question 805, which Oklahomans will vote on this November, would limit this sentence enhancement to crimes that the Legislature has classified as violent. Repeat offenders could still be sentenced at or near the top of the range for their crime. The Legislature would also retain the power to increase the sentencing range for any crime.

Opponents claim State Question 805 would forever lessen penalties for people who repeatedly commit certain heinous and destructive crimes that the Legislature has not labeled as violent offenses. As a threshold matter, this is only true if prosecutors are seeking the maximum penalty for even the first offense. Otherwise, prosecutors have power to seek a sentence at the low end of the range on the first offense and work up from there—part of the purpose of those sentencing ranges.

One category of crime that opponents focus on is domestic violence offenses. (Future articles will address other crimes opponents bring up.) These opponents correctly point out that the Legislature has not classified many domestic violence offenses as violent offenses. This includes violence against a pregnant woman, in front of children, strangulation, domestic violence resulting in great bodily injury, and assault and battery with a dangerous weapon.

Let me say first: if State Question 805 did anything to make it easier for violent domestic abusers, I wouldn’t support it. Who would? But a closer look at law and policy shows that opponents of State Question 805 are not telling “the whole truth, and nothing but the truth.”

As any prosecutor or defense attorney can attest, there are few run-of-the-mill domestic abuse cases. Some are vicious assaults by men against women and children. Others are verbal, but still result in criminal charges. Some involve children against parents, wives against husbands, and even siblings or roommates against each other. Classifying a crime as violent can result in much longer sentences, which in some cases makes it much harder to bring charges, get witnesses to testify, and ultimately achieve a conviction. In other words, the Legislature has had its reasons to not classify all domestic abuse as a violent offense.

When domestic abuse does turn violent, there is no shortage of statutorily defined violent crimes that can be—and are—used to prosecute these offenders. A list of all 52 crimes classified as violent offenses can be found here. Statutorily defined violent offenses that could be charged against a perpetrator of domestic violence include various forms of assault and battery, murder, manslaughter, maiming, child abuse, and various sexual crimes. In other words, prosecutors already have choices, in many cases, about whether to charge a defendant with a crime classified as violent or not.

Perhaps most problematic for opponents' claims, Oklahoma also has a specific crime called “Domestic Abuse with Prior Pattern of Physical Abuse.” Here is what that law says:

1. Any person who commits domestic abuse ... and has a prior pattern of physical abuse shall be guilty of a felony, upon conviction, punishable by imprisonment ... for a term of not more than ten (10) years or by a fine not exceeding Five Thousand Dollars ($5,000.00) or by both such fine and imprisonment.
2. For purposes of this section, "prior pattern of physical abuse" means two or more separate incidences, including the current incident, occurring on different days and each incident relates to an act constituting assault and battery or domestic abuse committed by the defendant against a current or former spouse, a present spouse of a former spouse, parents, a foster parent, a child, a person otherwise related by blood or marriage, a person with whom the defendant is in a dating relationship, an individual with whom the defendant has had a child, a person who formerly lived in the same household as the defendant, a person living in the same household as the defendant, a current intimate partner or former intimate partner, or any combination of such persons, where proof of each incident prior to the present incident is established by the sworn testimony of a third party who was a witness to the alleged physical abuse or by other admissible direct evidence that is independent of the testimony of the victim.

This statute provides what is, in effect, a sentence enhancement for repeat domestic abusers—but this statute is untouched by State Question 805. The maximum penalty is 10 years in prison. And it does not even require a prior conviction, but only credible testimony of at least one prior act of domestic abuse. In other words, there is already a separate sentence enhancement available to prosecutors in Oklahoma for domestic abuse crimes and it is unaffected by State Question 805.

As stated earlier, I will address other crimes in another article. When it comes to domestic abuse, SQ 805’s detractors are attempting to scare Oklahomans from pursuing desperately needed sentencing reform. Oklahoma recently improved two spots, from 49th to 47th, in incarceration—all while crime rates went down. State Question 805 is good policy designed to help continue both of those positive trends.