Domestic Assault in Michigan: MCL 750.81 Explained

MCL 750.81 is Michigan's assault and battery statute, and subsection (2) is its domestic assault provision. It makes it a misdemeanor to assault, or assault and batter, a spouse or former spouse, a current or former dating partner, a person with whom the accused has had a child in common, or a resident or former resident of the accused's household.^[1] A first offense is punishable by up to 93 days in jail, a fine of up to $500, or both.^[1]

This page goes through the statute one subsection at a time. Two cautions first. The subsection numbers changed on July 25, 2016, so older material may cite the old ones.^[5][6] And the section was most recently amended by 2023 PA 271, effective March 5, 2024, so check that anything you read reflects the current text.^[9]

MCL 750.81 at a glance

Subsection	What it covers	Maximum jail or prison	Maximum fine
(1)	Assault or assault and battery of any individual, where no other punishment is prescribed by law; a misdemeanor[10][11]	93 days	$500 ($1,000 where the victim is an on-duty health professional or medical volunteer)
(2)	Assault or assault and battery of a person in one of four domestic relationships; a misdemeanor[1]	93 days	$500
(3)	Assault or assault and battery of an individual who is pregnant, by a person who knows of the pregnancy; a misdemeanor[7]	93 days	$500
(4)	A violation of (2) or (3) by a person with one previous qualifying conviction; a misdemeanor[3]	1 year	$1,000
(5)	A violation of (2) or (3) by a person with two or more previous qualifying convictions; a felony[4]	5 years	$5,000
(6)	Exception for necessary reasonable physical force used in compliance with section 1312 of the Revised School Code[12]	Not applicable	Not applicable
(8)(a)	Definition of "dating relationship" used in subsection (2)[13]	Not applicable	Not applicable

Subsection (1): the general assault provision

Subsection (1) is the baseline. A person who assaults or assaults and batters an individual, "if no other punishment is prescribed by law," is guilty of a misdemeanor punishable by imprisonment for not more than 93 days or a fine of not more than $500, or both.^[10] It has no relationship requirement. Since March 5, 2024, subsection (1) also sets a higher maximum fine, $1,000, when the victim is a health professional or medical volunteer performing his or her duties, unless the defendant is a patient receiving treatment from the victim; subsection (7) requires health facilities to post a sign about it.^[11] The domestic subsections have no such provision.^[11] Subsection (1) matters on a domestic violence page for one reason: when the complainant is not in a listed relationship with the accused, the conduct is not domestic assault, but ordinary assault under subsection (1) may still apply.^[14]

Subsection (2): domestic assault

The two elements

The model jury instruction for domestic assault, M Crim JI 17.2a, breaks the charge into two elements. First, the accused assaulted, or assaulted and battered, the complainant. Second, 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.^[2] The prosecutor must prove each element beyond a reasonable doubt, and the accused is not required to prove innocence or to do anything.^[15]

Element one: assault, or assault and battery

MCL 750.81 does not define either word. The definitions come from case law as restated in the model instructions.^[16]

• A battery is a forceful, violent, or offensive touching of a person or of something closely connected with the person. The touching must be intended, not accidental, and against the other person's will.^[16]
• An assault is an attempt to commit a battery, or an act that would cause a reasonable person to fear or apprehend an immediate battery.^[17]
• Neither one depends on an injury. Jurors are told that it does not matter whether the touching caused an injury.^[18]
• The accused must have intended either to commit a battery or to make the other person reasonably fear an immediate battery; the instructions state that an assault cannot happen by accident.^[19]

Those points are developed in Assault vs. battery in Michigan and Can you be charged without an injury?

Element two: the relationship

The statute lists four relationships: spouse or former spouse; a person with whom the accused "has or has had a dating relationship"; a person with whom the accused has had a child in common; and a resident or former resident of the accused's household.^[1] Past relationships count. The Court of Appeals has summarized the statute as reaching people who have ever been married to each other, have ever resided together, had a child in common, or have ever had a dating relationship.^[20]

Each category has its own questions, such as whether roommates or siblings are covered and what makes a relationship a "dating relationship." Those are answered in Who is covered: the domestic relationship and The definition of a dating relationship.

Penalty for a first offense

A first domestic assault or domestic assault and battery is a misdemeanor punishable by up to 93 days in jail, a fine of up to $500, or both.^[1] Those figures are the statutory maximums for jail and fine. Probation, costs, and other consequences are set by other statutes; see Will I go to jail for domestic violence? and Probation conditions.

Subsection (3): assault of a pregnant individual

Subsection (3) covers a person who assaults or assaults and batters an individual who is pregnant and who knows the individual is pregnant. It is a misdemeanor punishable by up to 93 days, a fine of up to $500, or both.^[7] Unlike subsection (2), it has no relationship requirement.^[7]

The maximum for a first offense is the same as for domestic assault. What subsection (3) adds is that the repeat-offense provisions in (4) and (5) apply to it, and a conviction under it counts toward them.^[3][4] Separate statutes with much heavier penalties apply when the pregnancy itself is harmed; see Assaulting a pregnant partner.^[21]

Subsections (4) and (5): second and third offenses

Subsection (4) applies to a person who violates subsection (2) or (3) and "has previously been convicted" of assaulting or assaulting and battering a person described in either subsection. The offense remains a misdemeanor, but the maximum rises to 1 year in jail, a fine of $1,000, or both.^[3]

Subsection (5) applies to a person with "2 or more previous convictions." The offense is a felony punishable by imprisonment for not more than 5 years or a fine of not more than $5,000, or both.^[4]

What counts as a prior

A prior counts if it was a conviction for assaulting or assaulting and battering a person in a protected category under any of the following:^[22]

• MCL 750.81 itself, or a substantially corresponding ordinance of a Michigan city, village, or township.^[22][23]
• MCL 750.81a, 750.82, 750.83, 750.84, or 750.86, which are aggravated assault and the felony assault statutes.^[22]
• A law of another state, or an ordinance of a political subdivision of another state, that substantially corresponds to any of those sections.^[22]

Four further points catch people out. The victim of the earlier offense does not have to be the same person.^[24] The statute contains no time limit on how old a prior may be.^[8] A case that was deferred and dismissed under MCL 769.4a is a prior conviction for these purposes.^[25] And a prosecutor who seeks the enhanced sentence has to give notice of the priors in the charging document, in a notice that is not read or disclosed to the jury.^[26] The details are in Second and third offense domestic violence.

Subsection (6): the school exception

The only exception written into the statute is narrow. MCL 750.81 does not apply to an individual using necessary reasonable physical force in compliance with section 1312 of the Revised School Code, MCL 380.1312.^[12] Self-defense is a separate doctrine and is not written into this statute; see Self-defense law in Michigan domestic violence cases.

The renumbering that still causes confusion

Before 2016 PA 87 took effect on July 25, 2016, the second-offense provision was 750.81(3) and the third-offense provision was 750.81(4).^[5][6] A companion statute on how priors are proved, MCL 750.81b, has not been amended since 1994 and still refers to "section 81(3) or (4)," which now means subsections (4) and (5).^[5]

A second stale figure is the third-offense maximum. Until April 1, 2013 the third-offense maximum was 2 years and a $2,500 fine; 2012 PA 366 replaced it with 5 years and $5,000.^[4][27] A source that still gives two years for a third offense is more than a decade out of date.

How MCL 750.81 connects to the rest of a case

• Which court. First-offense and second-offense domestic assault are tried and sentenced in district court. A third offense is a felony that begins in district court and, if bound over, is tried and sentenced in circuit court.^[28] See Misdemeanor vs. felony domestic violence.
• Time limit to charge. Charges may be filed within 6 years after the offense is committed; there is no domestic-violence-specific limitations period.^[29] See Statute of limitations.
• Deferral. A person with no previous assaultive-crime conviction who pleads guilty to or is found guilty of a domestic violation of MCL 750.81 may, with the consent of the accused and of the prosecuting attorney in consultation with the victim, have proceedings deferred.^[30] See The MCL 769.4a deferral explained.
• More serious charges. If a serious or aggravated injury is inflicted, the charge may be aggravated domestic assault.^[31] If a dangerous weapon is used the conduct falls under felonious assault, MCL 750.82, and an assault by strangulation or suffocation falls under MCL 750.84.^[32]
• City charges. A domestic assault can also be charged under a local ordinance that substantially corresponds to MCL 750.81, and a conviction under such an ordinance counts as a prior.^[33][23] See State charge vs. city ordinance.