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Regular Session, 2012
SENATE BILL NO. 121
BY SENATOR KOSTELKA
DOMESTIC VIOLENCE. Creates the crimes of domestic abuse assault, domestic abuse
aggravated assault, and domestic violence. (gov sig)
AN ACT1
To amend and reenact R.S. 14:35.3(G)(2), to enact R.S. 14:37.7, 37.8, and 40.8, and to2
repeal R.S. 14:35.3(J), relative to assault and battery affecting domestic household3
members; to create the crimes of domestic abuse assault and domestic abuse4
aggravated assault; to create the crime of domestic violence as an enhancement to5
any crime of violence involving household members; to provide for enhancement of6
penalties when a minor under the age of thirteen is present during the commission7
of the crime; to provide relative to the cleansing period for prior domestic abuse8
battery convictions; to provide for definitions; to provide for penalties; and to9
provide for related matters.10
Be it enacted by the Legislature of Louisiana:11
Section 1. R.S. 14:35.3(G)(2) is hereby amended and reenacted and R.S. 14:37.7,12
37.8, and 40.8 are hereby enacted to read as follows: 13
§35.3. Domestic abuse battery14
* * *15
G.(1) * * *16
(2) For purposes of this Section, a prior conviction shall not include a17 SB NO. 121
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conviction for an offense under this Section if the date of completion of sentence,1
probation, parole, or suspension of sentence is committed more than ten years2
prior to the commission of the crime for with which the defendant is being tried3
charged, and such conviction shall not be considered in the assessment of penalties4
hereunder. However, periods of time during which the offender was incarcerated in5
a penal institution in this or any other state shall be excluded in computing the ten-6
year period.7
* * *8
§37.7. Domestic abuse assault9
A. Domestic abuse assault is an assault committed by one household10
member upon the person of another household member.11
B. For purposes of this Section, "household member" means any person12
of the opposite sex presently living in the same residence, or living in the same13
residence within five years of the occurrence of the domestic abuse assault, with14
the defendant as a spouse, whether married or not, or any child presently living15
in the same residence or living in the same residence within five years16
immediately prior to the occurrence of the domestic abuse assault, or any child17
of the offender regardless of where the child resides.18
C. On a first conviction, notwithstanding any other provision of law to19
the contrary, the offender shall be imprisoned for up to six months and fined20
not more than one thousand dollars.21
D. On a second conviction, notwithstanding any other provision of law22
to the contrary, the offender shall be imprisoned for not less than fifteen days23
nor more than six months and fined not less than three hundred dollars nor24
more than one thousand dollars.25
E. On a third conviction, notwithstanding any other provision of law to26
the contrary, the offender shall be imprisoned at hard labor for not less than27
one year nor more than five years and fined up to two thousand dollars.28
F. On a fourth or subsequent conviction, notwithstanding any other29 SB NO. 121
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provision of law to the contrary, the offender shall be imprisoned at hard labor1
for not less than five years nor more than fifteen years and fined up to five2
thousand dollars.3
G.(1) For the purposes of determining whether a defendant has a prior4
conviction for violation of this Section, a conviction under this Section, or a5
conviction under the laws of any state or an ordinance of a municipality, town,6
or similar political subdivision of another state that prohibits the attempt to7
commit a battery, or the intentional placing of another in reasonable8
apprehension of receiving a battery when committed by one household member9
on another household member, shall constitute a prior conviction.10
(2) For the purposes of this Section, a prior conviction shall not include11
a conviction for an offense under this Section if the date of completion of12
sentence, probation, parole, or suspension of sentence is more than ten years13
prior to the commission of the crime with which the defendant is charged, and14
such conviction shall not be considered in the assessment of penalties hereunder.15
H. This Subsection shall be cited as the "Domestic Abuse Assault Child16
Endangerment Law". When the state proves, in addition to the elements of the17
crime as set forth in Subsection A of this Section, that a minor child thirteen18
years of age or younger was present at the residence or any other scene at the19
time of the commission of the offense:20
(1) The minimum mandatory sentence imposed under Subsection C of21
this Section shall be fifteen days imprisonment without benefit of parole,22
probation, or suspension of sentence.23
(2) The minimum mandatory sentence imposed under Subsection D of24
this Section shall be thirty days imprisonment without benefit of parole,25
probation, or suspension of sentence.26
(3) The minimum mandatory sentence imposed under Subsection E of27
this Section shall be one year imprisonment at hard labor without benefit of28
parole, probation, or suspension of sentence.29 SB NO. 121
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(4) The minimum mandatory sentence imposed under Subsection F of1
this Section shall be ten years imprisonment at hard labor without benefit of2
parole, probation, or suspension of sentence.3
§37.8. Domestic abuse aggravated assault4
A. Domestic abuse aggravated assault is an assault with a dangerous5
weapon committed by one household member upon another household member.6
B. For purposes of this Section, "household member" means any person7
of the opposite sex presently living in the same residence, or living in the same8
residence within five years of the occurrence of the domestic abuse aggravated9
assault, with the defendant as a spouse, whether married or not, or any child10
presently living in the same residence or living in the same residence within five11
years immediately prior to the occurrence of the domestic abuse aggravated12
assault, or any child of the offender regardless of where the child resides.13
C. Whoever commits the crime of domestic abuse aggravated assault14
shall be imprisoned at hard labor for not less than one year nor more than five15
years and fined not more than five thousand dollars.16
D. This Subsection shall be cited as the "Domestic Abuse Aggravated17
Assault Child Endangerment Law". When the state proves, in addition to the18
elements of the crime as set forth in Subsection A of this Section, that a minor19
child thirteen years of age or younger was present at the residence or any other20
scene at the time of the commission of the offense, the mandatory minimum21
sentence imposed by the court shall be two years imprisonment at hard labor22
without benefit of parole, probation, or suspension of sentence.23
* * *24
§40.8. Domestic violence25
A. It shall be unlawful for any household member to commit a crime of26
violence, as defined in R.S. 14:2, against another household member, and any27
such offense shall be designated as an act of domestic violence.28
B. For purposes of this Section, "household member" means any person29 SB NO. 121
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of the opposite sex presently living in the same residence, or living in the same1
residence within five years of the occurrence of the act of domestic violence,2
with the defendant as a spouse, whether married or not, or any child presently3
living in the same residence or living in the same residence within five years4
immediately prior to the occurrence of the act of domestic violence, or any child5
of the offender regardless of where the child resides.6
C. (1) If the underlying offense named in Subsection A of this Section is7
a misdemeanor, then the offender shall be imprisoned for not more than six8
months and fined not more than one thousand dollars. This sentence shall run9
consecutively to the sentence for the underlying offense.10
(2) If the underlying offense named in Subsection A of this Section is a11
felony, then the offender shall be imprisoned at hard labor for not less than one12
year nor more than ten years and fined not more than ten thousand dollars.13
This sentence shall run consecutively to the sentence for the underlying offense.14
D. The provisions of this Section shall not apply to:15
(1) Domestic abuse battery.16
(2) Domestic abuse assault.17
(3) Domestic abuse aggravated assault.18
Section 2. R.S. 14:35.3(J) is hereby repealed in its entirety.19
Section 3. This Act shall become effective upon signature by the governor or, if not20
signed by the governor, upon expiration of the time for bills to become law without signature21
by the governor, as provided by Article III, Section 18 of the Constitution of Louisiana. If22
vetoed by the governor and subsequently approved by the legislature, this Act shall become23
effective on the day following such approval.24
The original instrument and the following digest, which constitutes no part
of the legislative instrument, were prepared by Alden A. Clement, Jr.
DIGEST
Present law provides that for purposes of determining whether a defendant has a prior
conviction for the present law crime of domestic abuse battery, a conviction under present
law, or a conviction under the laws of any state or an ordinance of a municipality, town, or
similar political subdivision of another state that prohibits the intentional use of force or SB NO. 121
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violence committed by one household member upon another household member of the
opposite sex presently or formerly living in the same residence with the defendant as a
spouse, whether married or not, constitutes a prior conviction.
Present law further provides that under present law, a prior conviction does not include a
conviction for an offense committed more than 10 years prior to the commission of the crime
for which the defendant is being tried, excluding time during which the offender was
incarcerated in a penal institution in this or any other state, and such conviction is not to be
considered in the assessment of penalties.
Proposed law provides that for purposes of determining whether a defendant has a prior
conviction of domestic abuse battery, a prior conviction does not include a conviction if the
date of completion of sentence, probation, parole, or suspension of sentence is more than 10
years prior to the commission of the crime with which the defendant is charged, and such
conviction is not to be considered in the assessment of penalties hereunder.
Proposed law otherwise retains present law.
Proposed law creates the crime of domestic abuse assault, which is defined as an assault
committed by one household member upon the person of another household member.
Proposed law defines "household member" as any person of the opposite sex presently living
in the same residence, or living in the same residence within five years of the occurrence of
the domestic abuse assault, with the defendant as a spouse, whether married or not, or any
child presently living in the same residence or living in the same residence within five years
immediately prior to the occurrence of the domestic abuse assault, or any child of the
offender regardless of where the child resides.
Proposed law provides that on a first conviction, the offender is to be imprisoned for up to
six months and fined not more than $1,000. Proposed law provides that on a second
conviction, the offender is to be imprisoned for not less than 15 days nor more than six
months and fined not less than $300 nor more that $1,000. Proposed law provides that on
a third conviction, the offender is to be imprisoned at hard labor for not less than one year
nor more than five years and fined up to $2,000. Proposed law provides that on a fourth or
subsequent conviction, the offender is to be imprisoned at hard labor for not less than five
years nor more than 15 years and fined up to $5,000.
Proposed law provides that for the purposes of determining whether a defendant has a prior
conviction for violation of proposed law, a conviction under proposed law, or a conviction
under the laws of any state or an ordinance of a municipality, town, or similar political
subdivision of another state that prohibits the attempt to commit a battery, or the intentional
placing of another in reasonable apprehension of receiving a battery when committed by one
household member on another household member, constitutes a prior conviction.
Proposed law provides that for the purposes of proposed law, a prior conviction does not
include a conviction for an offense under proposed law if the date of completion of sentence,
probation, parole, or suspension of sentence is more than 10 years prior to the commission
of the crime with which the defendant is charged, and such conviction is not to be considered
in the assessment of penalties.
Proposed law provides that when the state proves, in addition to the elements of the crime
of domestic abuse assault, that a minor child 13 years of age or younger was present at the
residence or any other scene at the time of the commission of the offense, the minimum
mandatory sentence for a first offense is to be 15 days imprisonment without benefit of
parole, probation, or suspension of sentence, the minimum mandatory sentence for a second
offense is to be 30 days imprisonment without benefit of parole, probation, or suspension
of sentence, the minimum mandatory sentence for a third offense is to be one year
imprisonment at hard labor without benefit of parole, probation, or suspension of sentence, SB NO. 121
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and the minimum mandatory sentence for a fourth and subsequent conviction is to be 10
years imprisonment at hard labor without benefit of parole, probation, or suspension of
sentence. This part of proposed law is to be cited as the "Domestic Abuse Assault Child
Endangerment Law".
Proposed law creates the crime of domestic abuse aggravated assault, which is defined as
an assault with a dangerous weapon committed by one household member upon another
household member.
Present law defines "dangerous weapon" as any gas, liquid or other substance or
instrumentality, which, in the manner used, is calculated or likely to produce death or great
bodily harm.
Proposed law defines "household member" as any person of the opposite sex presently living
in the same residence, or living in the same residence within five years of the occurrence of
the domestic abuse aggravated assault, with the defendant as a spouse, whether married or
not, or any child presently living in the same residence or living in the same residence within
five years immediately prior to the occurrence of the domestic abuse aggravated assault, or
any child of the offender regardless of where the child resides.
Proposed law provides that whoever commits the crime of domestic abuse aggravated assault
is to be imprisoned at hard labor for not less than one year nor more than five years and fined
not more than $5,000.
Proposed law provides that when the state proves, in addition to the elements of the crime
of domestic abuse aggravated assault, that a minor child 13 years of age or younger was
present at the residence or any other scene at the time of the commission of the offense, the
mandatory minimum sentence imposed by the court is to be two years imprisonment at hard
labor without benefit of parole, probation, or suspension of sentence. This part of proposed
law is to be cited as the "Domestic Abuse Aggravated Assault Child Endangerment Law".
Proposed law provides that it is unlawful for any household member to commit a crime of
violence, as defined in present law, against another household member, and any such offense
is to be designated as an act of domestic violence.
Proposed law defines "household member" as any person of the opposite sex presently living
in the same residence, or living in the same residence within five years of the occurrence of
the act of domestic violence, with the defendant as a spouse, whether married or not, or any
child presently living in the same residence or living in the same residence within five years
immediately prior to the occurrence of the act of domestic violence, or any child of the
offender regardless of where the child resides.
Proposed law provides that if the underlying offense named in proposed law is a
misdemeanor, then the offender is to be imprisoned for not more than six months and fined
not more than $1,000, and this sentence is to run consecutively to the sentence for the
underlying offense. Proposed law further provides that if the underlying offense named in
proposed law is a felony, then the offender is to be imprisoned at hard labor for not less than
one year nor more than 10 years and fined not more than $10,000, and this sentence is to run
consecutively to the sentence for the underlying offense.
Proposed law provides that proposed law relative to domestic violence does not apply to the
present law crime of domestic abuse battery or the proposed law crimes of domestic abuse
assault and domestic abuse aggravated assault.
Effective upon signature of the governor or lapse of time for gubernatorial action.
(Amends R.S. 14:35.3(G)(2); adds R.S. 14:37.7, 37.8, and 40.8; repeals R.S. 14:35.3(J))