Tandem assault and protective order Virginia cases need full defense

Tandem assault and protective order Virginia cases need full defense. As a Fairfax criminal lawyer, I know that when you receive a Virginia preliminary protective order, expect a good chance of a related assault prosecution around the corner. When you are charged with an alleged Virginia assault of your spouse or other person with whom you have been in a romantic relationship, anticipate a possible protective order proceeding if the complainant after a few days still wants to pursue the assault prosecution. When any of this happens, a feeling of dread can take hold for the defendant or respondent. That is all the more reason why you should not delay in consulting with a qualified Virginia lawyer to advise you, not only about such dual proceedings but also about any possibly related divorce or child custody proceedings. (For those reading this article before being charged with either part of these dual proceedings, consider this as an advisory about the risks of even engaging in what you consider self defense, versus finding a way to leave, or at least diffuse, a physically or emotionally tense situation.)

Does my spouse or significant other see me as made of Teflon, or as an abuser in seeking tandem proceedings?

Beware incantations of being the person of the house who keeps order. Gone are the days — if they ever existed — of the household disciplinarian who does not pay for having a heavy hand. Yes, Virginia law gives leeway for exercising dispassionate and proportional corporal punishment on one’s minor children, but do you prefer sparing the rod or answering for your alleged or actual actions in criminal or civil court? No law exists allowing using physical force to handle conflicts or tensions with your spouse nor any other adult, other than self defense. Despite all of this, make sure that your Virginia lawyer does not judge you, but instead fully defends you and well advises you about such tandem proceedings or related proceedings.

Beware having a family lawyer handle your assault defense; beware having a criminal defense lawyer advise you on family law

Unfortunately, an assault prosecution or protective order proceedng involving your spouse (unless your spouse decides soon after to want to forego such proceedings) often gets followed by the complaining spouse’s obtaining a divorce lawyer. All of that can be both a psychological and financial blow. The alleged assailant may consider saving financial resources by hiring one lawyer for criminal defense, protective order defense, and the family law matters of divorce and child custody. However, unless you find a Virginia attorney who is excellent at all three, you should be careful about using only one attorney for all three matters. Next, I think that the same lawyer should ideally defend you both for your tandem assault prosecution and any related protective order matter, where the central allegations will tend to be similar, and where handling the trial of one proceeding helps your lawyer in effectively handling the proceedings in the related case.

Should I have my Virginia assault trial precede my protective order hearing in this tandem situation?

Ideally, your Virginia assault trial should precede your related protective order hearing in this tandem situation. You have a Fifth Amendment right to remain silent at your assault trial and in any criminal trial, and the stakes are arguably higher for your assault case (risking your liberty and looking worse from a reputational and security clearance standpoint) than your civil protective order case (which still is important, both because such orders can affect your access to your children, and it is a jailable crime to violated a Virginia protective order.) A Virginia judge is unlikely to be willing to postpone a protective order hearing (for instance, to follow your assault trial) unless the defendant agrees to extend the terms and conditions of the preliminary protective order until the new protective order hearing date. In some jursidictions, judges will set both the assault and related protective order hearing for the same trial date, to be heard one after the other.

Will my Virginia judge issue a protective order as part of any assault conviction?

Virginia prosecutors will sometimes ask the trial judge to issue a protective order as part of the sentencing of an assault conviction for the alleged domestic crime of assaulting a spouse or child(ren). When that request is made, I urge that a protective order is so onerous as to merit a separate protective order hearing. Moreover, if a protective order hearing is pending, I ask the judge to simply let the tandem protective order issue be handled at such a hearing.

What are Virginia complainant’s rights to dismiss assault and protective order proceedings against me?

Virginia law lets complainants in a so-called non-domestic misdemeanor assault case (and virtually all other misdemeanor prosecutions involving an alleged private party victim) to dismiss a protective order matter as of right through the nonsuit process, and to bypass the prosecution / assistant commonwealth’s attorney, and to ask the trial judge to dismiss the prosecution, on the basis of having received satisfaction for the alleged injury. Virginia Code § 19.2-151. That same § 19.2-151  makes itself inapplicable when the alleged victim is a family or household member. Id. While that exception may sound unfair and a downright violation of a Virginia criminal defendant’s Due Process rights under the Constitution’s Vth and XIVth Amendments, it is not likely that any trial nor appellate court will grant relief on such a complaint, including when considering that the Virginia law is not required to have such a satisfaction and discharge (also knowns as accord and satisfaction) option in the first place.  Whether or not your assault proceeding is in tandem with a protective order matter, if your domestic assault complainant wants a dismissal of your prosecution, they can best do that through the advocacy of a qualified lawyer, whether or not their lawyer tells the prosecutor that the complainant will assert their Fifth Amendment right to remain silent if the prosecution is not dropped (but other witnesses and your own admissions (if any) to the police can also convict you even if the complainant does not testify). 

What are my appeal and expungement rights with a Virginia protective order proceeding?

Virginia judges have the discretion to expunge or not to expunge dismissed protective orders, unless the dismissed protective order was issued in tandem with an assault charge (for instance with emergency protective orders). It is fortunate to have that discretion even exist, which is a discretion that the Virginia Court of Appeals says does not have to be exercised. R.T. v. Commonwealth of Virgnia, ___ Va. App. ___, 2025 WL 3521309 (2025).

Fairfax criminal lawyer Jonathan Katz relentlessly pursues your best defense against Virginia felony, misdemeanor and DUI prosecutions. Secure your free in-person confidential initial consultation with Jon Katz about your court-pending prosecution, by calling us at 703-383-1100, Info@KatzJustice.com and (text) 571-406-2768.