Aggravated Domestic Assault in Michigan: MCL 750.81a

Aggravated domestic assault is the charge used in Michigan when an assault on a spouse or former spouse, a current or former dating partner, a co-parent, or a current or former household member causes a serious or aggravated injury and no weapon was used. Under MCL 750.81a(2) it is a misdemeanor punishable by up to 1 year in jail, a fine of up to $1,000, or both.^[1] If the person has one or more previous qualifying domestic assault convictions, it is a felony punishable by up to 5 years in prison, a fine of up to $5,000, or both.^[2]

This page sets out the elements, what "serious or aggravated injury" means, the penalties for a first and a repeat offense, and how the charge sits between simple domestic assault and the felony assault statutes.

What the statute says

MCL 750.81a(2) applies to an individual who assaults a person in one of four relationships "without a weapon and inflicts serious or aggravated injury upon that individual without intending to commit murder or to inflict great bodily harm less than murder."^[1] The relationships are the same four used for simple domestic assault: spouse or former spouse, a person in a current or past dating relationship, a person with a child in common, and a resident or former resident of the same household.^[1][5]

The section has a general version as well. Aggravated assault of any individual under MCL 750.81a(1) carries the same maximum of 1 year or $1,000, or both (the fine maximum is $2,000 where the victim is an on-duty health professional or medical volunteer and the defendant is not a patient being treated by the victim); only the domestic version leads to the felony repeat-offender penalty in subsection (3).^[6][7]

The three elements the prosecutor has to prove

The model jury instruction, M Crim JI 17.2a, covers both domestic assault and aggravated domestic assault. For the aggravated charge it lists three elements, each of which the prosecutor must prove beyond a reasonable doubt:^[8]

1. The accused assaulted, or assaulted and battered, the complainant.^[8]
2. At the time, the complainant was the accused's spouse, former spouse, a person with a child in common, a resident or former resident of the same household, or a person with whom the accused had or previously had a dating relationship.^[8]
3. The assault caused a serious or aggravated injury.^[9]

The first two elements are the same as for simple domestic assault. The definitions of assault and battery, including the intent the prosecutor has to show, are in Assault vs. battery in Michigan; the relationship categories are in Who is covered: the domestic relationship.

What is a "serious or aggravated injury"?

MCL 750.81a does not define the phrase. The definition comes from the model jury instruction, which notes that it was approved by the Court of Appeals in People v Norris: "A serious or aggravated injury is a physical injury that requires immediate medical treatment or that causes disfigurement, impairment of health, or impairment of a part of the body."^[3]

The definition has four alternatives, joined by "or":^[3]

• A physical injury that requires immediate medical treatment.^[3]
• A physical injury that causes disfigurement.^[3]
• A physical injury that causes impairment of health.^[3]
• A physical injury that causes impairment of a part of the body.^[3]

Every alternative begins with a physical injury, and any one of the four is enough.^[3] The sources used for this guide do not identify appellate decisions sorting particular injuries, such as a specific kind of bruise or cut, into or out of the definition, so this page does not list examples. In a given case the question is decided on the medical and other evidence.

How the injury is proved

Because the injury is an element, the prosecutor has to prove it, and medical records and photographs are among the kinds of evidence used.^[9][10][11] In People v Davis, photographs of the complainant in a hospital bed with a severely bruised face and a neck brace were properly admitted in a trial for aggravated domestic assault; the court described them as "highly relevant and probative to establish an essential element of aggravated domestic assault." That decision was later vacated in part on other grounds.^[10] Hospital records can be admitted as records of a regularly conducted activity, authenticated by a custodian's certification without live testimony, if the proponent gives reasonable written notice before trial.^[11] See Photographs and medical records.

Penalties: first offense and repeat offense

Offense	Subsection	Class	Maximum incarceration	Maximum fine
Aggravated domestic assault, no previous qualifying conviction[1]	MCL 750.81a(2)	Misdemeanor	1 year	$1,000
Aggravated domestic assault, one or more previous qualifying convictions[2]	MCL 750.81a(3)	Felony	5 years	$5,000

The repeat-offense rule is stricter than the one for simple domestic assault. Under MCL 750.81, one prior raises the maximum to 1 year and it takes two priors to reach the felony level.^[12][13] Under MCL 750.81a(3), a single prior is enough to make the offense a felony.^[2] The felony maximum was 2 years and $2,500 until 2012 PA 366 replaced it with 5 years and $5,000 effective April 1, 2013.^[2][14]

Which priors count

The qualifying priors are convictions, against a person in one of the four domestic relationships, under any of the following:^[15]

• MCL 750.81a, or a substantially corresponding ordinance of a Michigan political subdivision.^[15]
• MCL 750.81, 750.82, 750.83, 750.84 or 750.86.^[15]
• A substantially corresponding law of another state, or ordinance of another state's political subdivision.^[15]

A case deferred and dismissed under MCL 769.4a is also a prior conviction in a prosecution under MCL 750.81a(3).^[16] A prior assault on a pregnant individual under MCL 750.81(3) is not on this list unless the victim was also in a domestic relationship with the offender.^[15]

The notice and proof rules are the same as for repeat simple domestic assault: the prosecutor must give separate notice of the priors in the charging document, the notice is kept from the jury, and the priors are established at sentencing.^[17][18] Those rules are explained in Second and third offense domestic violence.

How it differs from simple domestic assault and from the felony assaults

Charge	What sets it apart	Class and maximum on a first offense
Domestic assault, MCL 750.81(2)	No injury needed[19]	Misdemeanor; 93 days, $500, or both[20]
Aggravated domestic assault, MCL 750.81a(2)	Serious or aggravated injury; no weapon; no intent to murder or do great bodily harm[1]	Misdemeanor; 1 year, $1,000, or both[1]
Felonious assault, MCL 750.82(1)	A dangerous weapon; no touching or injury needed[21]	Felony; 4 years, $2,000, or both[22]
Assault by strangulation or suffocation, MCL 750.84(1)(b)	Impeding breathing or circulation by pressure on the throat or neck or by blocking the nose or mouth[23]	Felony; 10 years, $5,000, or both[24]
Assault with intent to do great bodily harm less than murder, MCL 750.84(1)(a)	Intent to cause great bodily harm; actual injury is not necessary[25]	Felony; 10 years, $5,000, or both[26]

The dividing lines are built into the wording of MCL 750.81a itself. Aggravated assault is committed "without a weapon" and "without intending to commit murder or to inflict great bodily harm less than murder."^[4] If a dangerous weapon is used, the conduct falls under felonious assault; an assault with intent to do great bodily harm, or by strangulation, falls under MCL 750.84.^[4]

That makes aggravated domestic assault a charge defined by its result, while the 10-year felony is defined by intent. Great bodily harm, for that felony, means any physical injury that could seriously harm the health or function of the body, and the jury may consider an actual injury as evidence of intent.^[25] Which charge to file is the prosecutor's decision.^[27] See Assault by strangulation and Felonious assault in a domestic setting.

Can a person be convicted of both for the same act?

In People v Davis, the Michigan Supreme Court held that the Court of Appeals erred by relying on the principle of mutually exclusive verdicts to vacate only the aggravated domestic assault conviction, where the jury had never been instructed that it must find the defendant acted without intent to do great bodily harm; the case was sent back on the double jeopardy question.^[28] MCL 750.84 itself says it does not prohibit a person from being charged with, convicted of, or punished for any other violation of law arising out of the same conduct.^[29]

As a lesser offense

The model instruction is written so that the jury can be told it "may also consider the less serious crime of" domestic assault or aggravated domestic assault when a greater offense is charged.^[30]

Arrest, court and what follows a conviction

• Arrest. A peace officer may arrest for a violation of MCL 750.81a without a warrant, even if it was not committed in the officer's presence, on reasonable cause to believe the violation occurred and that one of the four relationships exists.^[31] Police may not release the person on an appearance ticket.^[32]
• Court. A first aggravated domestic assault is tried and sentenced in district court. The repeat-offense felony begins in district court and, if bound over, is tried and sentenced in circuit court.^[33] See Misdemeanor vs. felony domestic violence.
• Sentencing guidelines. Aggravated domestic assault with prior convictions is a Class E crime against a person with a 5-year statutory maximum.^[34]
• Victim rights. A violation of MCL 750.81a is a "serious misdemeanor" under the Crime Victim's Rights Act.^[35]
• Time limit to charge. Charges may be filed within 6 years after the offense is committed.^[36]
• Firearms. A conviction under MCL 750.81a(2) is a misdemeanor involving domestic violence, which brings the 8-year Michigan firearm prohibition.^[37][38] See Michigan's 8-year gun ban.
• Deferral. The MCL 769.4a deferral can apply to a violation of MCL 750.81a, with the consent of the accused and of the prosecuting attorney in consultation with the victim.^[39] See The MCL 769.4a deferral explained.

The maximums for every related offense are collected in the Michigan domestic violence penalties chart, and the simple-assault statute is covered in Domestic assault: MCL 750.81 explained.