Arrested or Charged with Domestic Assault in the Second Degree (RSMo § 565.073) in Missouri?

Domestic Assault in the Second Degree is a Class D felony in Missouri that can result in up to seven years in prison and a permanent criminal record. If law enforcement has arrested or charged someone with this offense, understanding the charge and available defenses is essential.

At Rose Legal Services, we dedicate our practice exclusively to criminal defense. Domestic Assault is one of our most common types of cases, so all of our attorneys are very experienced and well-trained in this type of case.

What is Domestic Assault in the Second Degree?

Under RSMo § 565.073, the statute states:

“A person commits the offense of domestic assault in the second degree if the act involves a domestic victim, as the term ‘domestic victim’ is defined under section 565.002, and he or she:

(1) Knowingly causes physical injury to such domestic victim by any means, including but not limited to, use of a deadly weapon or dangerous instrument, or by choking or strangulation; or

(2) Recklessly causes serious physical injury to such domestic victim; or

(3) Recklessly causes physical injury to such domestic victim by means of any deadly weapon.”

The prosecution must prove one of three things: knowingly causing physical injury (including by choking or strangulation), recklessly causing serious physical injury, or recklessly causing physical injury with a deadly weapon.

A “domestic victim” under RSMo § 565.002 includes spouses, former spouses, family members, people who live together or have lived together, people who have a child in common, or people in a continuing romantic relationship.

Penalties for Domestic Assault in the Second Degree

As a Class D Felony, Domestic Assault in the Second Degree carries:

• Up to 7 years in prison
• Fines up to $10,000
• Loss of firearm rights
• Difficulty with employment and housing
• Enhanced penalties for repeat offenses under RSMo § 565.079

Domestic Assault in the Second Degree vs. Other Degrees

Missouri recognizes four degrees of Domestic Assault:

• First Degree (RSMo § 565.072) – Attempt to kill or knowingly causing/attempting to cause serious physical injury (Class B or A Felony)
• Second Degree – Knowingly causing physical injury, recklessly causing serious injury, or recklessly causing injury with a deadly weapon (Class D Felony)
• Third Degree (RSMo § 565.074) – Attempting to cause injury or knowingly causing pain/illness (Class E Felony)
• Fourth Degree (RSMo § 565.076) – Recklessly causing injury or placing victim in apprehension of injury (Class A misdemeanor or Class E Felony for repeat offenders)

Missouri’s Arrest Laws for Domestic Violence

Missouri does not have a mandatory arrest law for domestic violence. Officers use discretion when responding to calls. However, if there is more than one call to the same location within 12 hours, officers must make an arrest. And officers are heavily predisposed to make an arrest on any report of domestic violence.

If arrested for Domestic Assault in the Second Degree, invoke the right to remain silent by saying: “I wish to remain silent until my attorney is present.” Do not answer questions without an attorney.

Can the Victim Drop Domestic Assault in the Second Degree Charges?

No. It is a common misconception that alleged victims of domestic violence can “drop” charges.

The prosecuting attorney represents the state, and the alleged victim is a witness. Even if the victim wants charges dropped, prosecutors in Missouri maintain strict “no-drop” policies in domestic assault cases. The victim cannot “drop” the charges.

The defendant still has the right to require the government to prove its case beyond a reasonable doubt.

How Domestic Assault in the Second Degree Charges Get Dismissed or Defended

While prosecutors rarely drop Domestic Assault in the Second Degree charges voluntarily, these cases can be dismissed or result in not guilty verdicts through several defense strategies.

Lack of Witnesses at Preliminary Hearing or Trial

Often, the only witnesses are the alleged victim and the defendant. The defendant cannot be compelled to testify because of the right against self-incrimination guaranteed by the 5th and 14th Amendments to the United States Constitution. And if the alleged victim fails to appear at the preliminary hearing or trial, the prosecutor may not have witnesses to prove every element of the charges. If the prosecutor cannot proceed, defense counsel can move to dismiss for “failure to prosecute.”

Spousal Privilege

If the alleged victim is married to the defendant, they can assert spousal privilege and refuse to testify. The court cannot compel testimony against a spouse. In Missouri, this is known as the spousal testimonial privilege. The privilege belongs to the witness, who must invoke it.

Cross-Examination Exposing Weaknesses

Effective cross-examination can expose inconsistencies in witness testimony, creating reasonable doubt about what actually happened.

Prosecution Fails to Prove Case Beyond Reasonable Doubt

At preliminary hearings or trial, if the prosecution fails to meet its burden of proof, the case can be dismissed or result in not guilty.

Self-Defense or Defense of Others

Missouri law allows use of force to defend oneself or others from unlawful force. If the defendant reasonably believed they were in danger and used proportional force, this is a complete defense.

Challenging Intent or Recklessness

For knowingly causing injury charges, the prosecution must prove intent. For reckless charges, they must prove reckless conduct. If the injury was accidental or the required mental state cannot be proven, this element fails.

False Accusations

False accusations occur in contentious divorces, custody disputes, or when one party seeks an advantage. Sometimes, law enforcement was called to the scene to restore the peace, and no crime was committed. An experienced attorney investigates motives and exposes inconsistencies.

Constitutional Violations

If law enforcement violated constitutional rights during an investigation or arrest, evidence may be suppressed.

Why Hiring a Defense Lawyer Matters in Domestic Assault Cases

The hours and days immediately following a Domestic Assault in the Second Degree arrest are critical. Here’s why contacting an attorney immediately can change the outcome:

Bond hearings can happen within 24-48 hours.

If charges are filed while the defendant is in custody, an attorney can argue for a lower bond or release on the defendant’s recognizance at the initial appearance. Without representation, a bond may be set prohibitively high or include unnecessarily restrictive conditions.

If charges are filed sometime later, the case may be issued on a warrant. That could lead to the defendant being arrested a second time, this time at work or some other public place. An experienced criminal defense attorney will know how to handle this situation.

Evidence disappears quickly.

Text messages get deleted, witnesses’ memories fade, and surveillance footage gets recorded over. An attorney can immediately begin preserving critical evidence like communications, photos, medical records, and witness statements that support the defense.

Orders of protection get issued immediately.

These orders can remove someone from their home, restrict contact with children, and create additional legal problems. An attorney can challenge unreasonable conditions or work to modify problematic orders.

Preliminary hearings are the first chance to win.

In felony Domestic Assault in the Second Degree cases, the preliminary hearing occurs early in the process. This is where the court determines if there’s probable cause to proceed. With proper preparation and advocacy, cases can be dismissed at this stage – but only if an attorney is involved early enough to prepare.

Statements to police cannot be taken back.

Many people try to explain their side of the story to police without an attorney present. These statements almost always hurt the defense. An attorney protects their client from making damaging admissions.

Prosecutors make filing decisions quickly.

In some cases, an attorney can provide information to prosecutors before charges are finalized, potentially influencing what charges get filed or whether they proceed at all.

Why Choose Rose Legal Services for Domestic Assault in the Second Degree Defense

We are passionate about helping good people get a second chance. Domestic Assault is one of our most common types of cases, so all of our attorneys are very experienced in defending these charges.

We dedicate our practice exclusively to criminal defense. These cases are handled by a collaborative team of attorneys and staff who work together at every stage of the process. When additional investigation is necessary, outside investigators are retained as needed. We know the prosecutors and judges in St. Louis-area courts, and we understand how Domestic Assault in the Second Degree cases are actually resolved.

We pride ourselves on excellent client service through our Client Care Specialists and monthly case status reports.

What to Do If Facing Domestic Assault in the Second Degree Charges

• Invoke your right to remain silent – Do not speak to police without an attorney
• Do not contact the alleged victim – This leads to additional charges
• Preserve all evidence – Save texts, emails, photos, and medical records
• Contact an attorney immediately – The sooner counsel is involved, the better

A charge is not a conviction. Contact Rose Legal Services today for a consultation.

Your defense starts with a conversation.