Proposed Legislation:  Score Prior Misdemeanor Domestic Violence History

Repeat felony domestic violence offenders often begin their behavior as misdemeanor domestic violence offenders.  These misdemeanor domestic violence convictions are not just important in sentencing repeat offenders, but are often just as meaningful to a victim and the victim's children as a felony.¹   

Though misdemeanors are generally not included in offender score calculations exceptions are made when they are particularly relevant such as felony traffic offenses (Vehicular Homicide, Vehicular Assault, Hit and Run Injury Accident.)²  

This legislation proposes counting a certain class of prior domestic violence misdemeanor convictions in a felony domestic violence offender's score:

The scoring of a certain class of domestic violence misdemeanor offenses is modeled after the scoring of misdemeanors for felony traffic offenses and car thieves (e.g. DUI, Reckless, and Vehicle Prowl).  RCW 9.94A.030(36) provides for specific "serious traffic offenses" in the offender score.  Creating a category of "serious domestic violence" misdemeanors would count as one point towards a felony domestic violence offender score.  A “serious domestic violence offense” would be defined as:

(a) Nonfelony domestic violence assault (RCW 9A.36.041), nonfelony domestic violence violation of a court order (No contact order under RCW 10.99, domestic violence protection order issued under RCW 26.09, 26.10, 26.26, or 26.50 ), nonfelony domestic violence harassment (RCW 9A.46.020), and nonfelony domestic violence stalking (RCW 9A.46.110); or (b) Any federal, out-of-state, county, tribal court, military, or municipal conviction for an offense that under the laws of this state would be classified as a serious domestic violence offense under (a) of this subsection.  

The scoring of domestic violence misdemeanors would accomplish a critical step in sentencing repeat domestic violence offenders by officially recognizing hard fought misdemeanor domestic violence convictions.  The domestic violence designation of a prior "serious domestic violence" conviction will have to be plead and proven in order to score the conviction (note, any change in penalty for domestic violence crimes will require this step to comply with Blakely v. Washington 542 U.S. 296 (2004).)  Many prosecutors currently do not plead and prove DV allegations, and this will create an issue that will necessitate jurisdictions making a change.

1. It is important to note that misdemeanor domestic violence convictions are often times more difficult to obtain than felony domestic violence convictions given the absence of obvious trauma or other physical evidence.
2. The Sentencing Guidelines commission recommended the following information for the scoring of misdemeanors in the comments to the SRA. Misdemeanors:  The Commission decided not to include misdemeanors in the offender score for two reasons:  1) the emphasis of the legislation was on felonies, and 2) the reliability of court records varies greatly throughout the state.  An exception to this policy was made in the case of felony traffic offenses. The Commission decided that for these crimes, previous serious driving misdemeanors are relevant in establishing the offender's history of similar behavior. The Commission anticipates that in some instances an offender's history of misdemeanors may be used by the court in selecting a sentence within the standard sentence range or in departing from the range to administer an exceptional sentence.Adult Sentencing Manual 2007 II-118

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