Challenging the Domestic Relationship Element in a Michigan Assault Case

In a Michigan domestic assault case the prosecutor has to prove two things: an assault, and a domestic relationship between the two people.^[8] The relationship is an element like any other. It must be proved beyond a reasonable doubt, and if it is not, the offense is not domestic assault.^[1]

This page explains which relationships the statute lists, where the definition has real edges, how the element is contested, and what does and does not change if the charge becomes ordinary assault. That last point matters, because the consequences run in both directions.

The four relationships in MCL 750.81(2)

The statute applies when the person assaulted is one of the following.^[2]

Category	What the sources say about its reach
Spouse or former spouse	Applies regardless of whether the two ever resided together in the same household.[9]
A person with whom the defendant has had a child in common	Applies regardless of whether the two ever resided together.[9]
A person with whom the defendant has or has had a dating relationship	Requires frequent, intimate associations primarily characterized by the expectation of affectional involvement; excludes a casual relationship or ordinary fraternization in a business or social context.[3]
A resident or former resident of the defendant's household	Applies to people who resided in a household with the other person at or before the time of the assault, regardless of their relationship.[10]

The jury instruction tracks the statute. Jurors are asked whether, "at the time," the complaining witness was the defendant'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 defendant had or previously had a dating relationship.^[11] The categories are explained for general readers in Who is covered: the domestic relationship.

Where the definition has edges

Dating relationship

This is the only category that depends on the quality of a relationship rather than a fact such as a marriage certificate, a birth certificate or an address. The statutory definition has three working parts.^[3]

• Frequent. The associations must be frequent.^[3]
• Intimate. They must be intimate associations.^[3]
• Expectation of affectional involvement. They must be primarily characterized by that expectation.^[3]

The definition then excludes "a casual relationship or an ordinary fraternization between 2 individuals in a business or social context."^[3] Jurors are given the same definition.^[12] The statute sets no minimum length of time and does not mention sexual activity, so neither is a requirement written into the text. The evidence on this point can be ordinary: how often the two saw each other, how they communicated, how they described the relationship to others. See The definition of a dating relationship.

Household

The household category is broader than many people expect. According to the Domestic Violence Benchbook, it applies to people who resided in a household with the other person at or before the time of the assault "regardless of the victim's relationship with the offender," and the Court of Appeals applied it to a 16-year-old accused of assaulting her mother.^[10] The statute's wording therefore covers parents, children, siblings and roommates who share or have shared a household.^[10]

The question in a household case can be factual: did the two people actually "reside" in the same household, as opposed to visiting or staying briefly? The sources reviewed for this guide do not define "resident" or "household" for this statute, so this page does not state a test.

Past relationships

That a relationship ended does not take a case out of the statute. The text reaches a former spouse, a person with whom the defendant "has had" a dating relationship, and a former resident.^[2] The Court of Appeals has put it this way: an assault is a domestic assault "if the defendant and the victim have ever been married to each other, have ever resided together, had a child in common, or have ever had a dating relationship."^[13]

Who is not on the list

The statute has no category for relatives as such. A sibling, parent, in-law or other relative who has never shared a household with the defendant, and who is not in one of the other three categories, is not listed.^[4] Neither is a coworker, neighbor, friend or stranger. An assault on any of them is still a crime under MCL 750.81(1).^[4]

Other Michigan statutes use different lists. The definition of "family or household member" in MCL 400.1501, for example, includes an individual to whom the person is related or was formerly related by marriage, which the assault statute does not.^[14][4] A relationship that counts for one purpose may not count for another.

How the element is contested

Because the relationship is an element, the ordinary rules of a criminal trial apply to it.

• The prosecutor carries the burden. The defendant is presumed innocent and is not required to prove anything, including the absence of a relationship.^[15]
• The jury decides. Whether a relationship existed is a question of fact for the jury, or for the judge in a bench trial, on the evidence presented.^[1]
• A directed verdict is available. If the prosecution's evidence is insufficient to sustain a conviction on the charged offense, the court on the defendant's motion must direct a verdict of acquittal on that offense.^[16]
• It can be raised earlier. In a felony case, the preliminary examination tests whether there is probable cause for the offense charged.^[17] In a misdemeanor case, the court may require pretrial motions to be filed and argued by the pretrial conference.^[18]

The relationship also matters before any trial. The domestic-assault arrest statute, MCL 764.15a, allows an arrest without a warrant for an assault the officer did not witness if there is reasonable cause to believe both that the violation occurred and that the person has one of the listed relationships with the other person.^[19] It is not the only arrest authority: a separate statute allows a warrantless arrest on reasonable cause for a misdemeanor punishable by more than 92 days.^[20]

What changes if the charge is ordinary assault instead

For a first offense, the maximum penalty does not change. Domestic assault and ordinary assault are both misdemeanors punishable by up to 93 days in jail, a fine of up to $500, or both.^[2][4] The differences lie elsewhere.

Consequence	Domestic assault, MCL 750.81(2)	Ordinary assault, MCL 750.81(1)
First-offense maximum	93 days, $500 fine, or both[2]	93 days, $500 fine, or both[4]
Counts toward repeat-offender penalties	Yes. A second offense carries up to 1 year and a third is a felony carrying up to 5 years.[5]	Only if the person assaulted was in fact someone described in subsection (2) or (3); the court must find that relationship by a preponderance of the evidence.[5][21]
Deferral under MCL 769.4a	Available if the other requirements are met.[6]	The deferral applies only when the person assaulted is in fact in one of the four domestic relationships.[6]
Michigan 8-year firearm prohibition	Applies; MCL 750.81(2) is a listed "misdemeanor involving domestic violence."[22][7]	MCL 750.81(1) is not on the list.[7]
Federal firearm prohibition	Depends on the federal definition, which uses its own relationship list.[23][24]	Can still apply if the relationship existed in fact, because it need not be an element of the offense of conviction.[25]
Concealed pistol license	A misdemeanor conviction under MCL 750.81 in the previous 8 years, or a pending charge, is disqualifying.[26]	Same; the license statute refers to section 81 as a whole.[26]

The deferral trade-off

MCL 769.4a allows a court to defer proceedings and place a person on probation without entering a judgment of guilt, with the consent of the accused and of the prosecuting attorney.^[27] It is available only for a violation of MCL 750.81 or 750.81a where the person assaulted is the offender's spouse or former spouse, a person with a child in common, a person in a current or former dating relationship, or a person residing or having resided in the same household.^[6]

So where no domestic relationship existed, that statute does not apply. Whether that matters depends on the case; see The MCL 769.4a deferral explained.

Firearms

Michigan's 8-year prohibition attaches to a conviction for a "misdemeanor involving domestic violence," a defined list that includes MCL 750.81(2) and does not include MCL 750.81(1).^[22][7] The federal prohibition works differently. It applies to a "misdemeanor crime of domestic violence," and the United States Supreme Court held in United States v Hayes that the domestic relationship need not be an element of the earlier offense, although it must be established beyond a reasonable doubt in the federal firearm prosecution.^[28][25]

The two relationship lists also differ. Michigan's household category reaches a household member who may not fall within the federal categories, which speak of spouses, parents, guardians, co-parents, people cohabiting as a spouse, parent or guardian, people similarly situated, and dating partners.^[24] See Michigan's 8-year gun ban and The federal gun ban.

The relationship in a repeat-offender case

The relationship is examined twice when the prosecutor seeks an enhanced sentence. The current offense must be a violation of subsection (2) or (3), and each earlier conviction must have been for assaulting "an individual described in either subsection (2) or subsection (3)."^[5] The earlier conviction may be under the assault statute, a corresponding local ordinance, or one of several more serious assault statutes, so the relationship in the earlier case will not always appear on the face of the conviction.^[5][21]

For that reason the statute sets out a procedure. The court may rely on a prior conviction only if it finds, by a preponderance of the evidence, both the prior conviction and one or more of the required relationships between the defendant and the person assaulted in the earlier case.^[29] The defendant or defense attorney must be given an opportunity to deny, explain or refute the evidence before sentence is imposed.^[30] The earlier case need not have involved the same person.^[31] See Second and third offense domestic violence.

Aggravated assault follows the same pattern

The aggravated assault statute also has a general version and a domestic version with the same relationship list, and the first-offense maximum is the same for both: up to 1 year or a fine of up to $1,000, or both. Only the domestic version leads to the felony penalty for a repeat offense.^[32]

What people get wrong

• "We never lived together, so it can't be domestic." Spouses, former spouses, co-parents and dating partners are covered whether or not they shared a household.^[9][2]
• "We aren't together anymore." Former relationships count.^[13]
• "It was my brother, so it's domestic violence." Only if the two share or have shared a household, or fit another category.^[10][4]
• "If it isn't domestic, there's no charge." Ordinary assault may still apply.^[1]