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77.10 Spousal/Cohabitant Abuse

    77.10.3 Spouse Or Cohabitant Beating: Defenses And Defense Theories

    77.10.3.1 Spouse/Cohabitant Beating: Defense Theory That Victim Was Not A Cohabitant
    77.10.3.2 Defense Theory That Alleged Victim Was Not A Cohabitant: Factors To Consider
    77.10.3.3 Spousal/Cohabitant Abuse: Self Defense
    77.10.3.4 Spousal/Cohabitant Abuse: Battered Person Syndrome
    77.10.3.5 Spousal/Cohabitant Abuse: Additional Defenses And Defense Theories

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RATIONALE: Cohabitation is a term that may need to be defined when it is an element of the charge. Without a defense theory instruction the jury may not understand the meaning of cohabitation and that the defendant has no burden to disprove cohabitation.

POINTS AND AUTHORITIES: "[D]efinitions of 'cohabitation' have two fact-specific prongs: financial support and consortium." (Kaska, Iowa Unmarried Cohabitants Denied Recovery for Loss of Consortium (1984), 69 Iowa L.Rev. 811.)

    "In Alabama, cohabitation means 'some permanency of relationship coupled with more than occasional sexual activity between the cohabitants.' [Citation.]  In California, cohabitation means 'an unrelated man and woman living together in a substantial relationship manifested principally by a [sic] permanence, or sexual, or amorous intimacy.' [Citation.] In Delaware, the alimony statute defines cohabitation as 'regularly residing with an adult of the same or opposite sex, if the parties hold themselves out as a couple, and regardless of whether the relationship confers a financial benefit.' [Citation.] The Delaware Supreme Court has defined cohabitation as an 'arrangement existing when two persons live together in a sexual relationship when not legally married.' [Citation.] In New Jersey, cohabitation is 'generally residing together in a common residence ... where they generally engage in some, but not necessarily all of the following: meals taken together at the residence; departing from and returning to the residence of the other for employment and/or social purposes; maintaining clothing at the other's residence; sleeping together at the residence, or the residence of the other; receiving telephone calls at the residence or the residence of the other. [Citation.]"

    "Other definitions include: 'living together as husband and wife' (Illinois) [citation].; 'a significant live-together relationship' (Iowa) [citation]; 'the mutual assumption of those marital rights, duties, and obligations which are usually manifested by married people including but not necessarily dependent on sexual relations' (Kentucky) [citation]; 'living together as husband and wife without a legal marriage having been performed' (Maryland) [citation]; 'living together as man and wife, though not necessarily implying sexual relations' (North Carolina) [citation]; 'living together in the same house' (South Carolina) [citation]; 'dwelling or living together; community of life' (Texas) [citation]; 'doing things ordinarily done by spouses' (Texas) [citation]; and 'liv[ing] together permanently or for an indefinite period and assum[ing] the duties and obligations normally attendant with a marital relationship.' (Virginia) [Citation.]." (Fowerbaugh v. University Hospitals (OH 1997) 692 NE2d 1092, 1099-1100.)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

USE NOTE: Simultaneous Cohabiting: As long as the evidence establishes that the defendant is cohabiting with the victim at the time of the incident in question, it is immaterial that he may be cohabitating with others as well. Therefore, for purposes of criminal liability, a defendant may cohabitate simultaneously with two or more people at different locations, during the same time frame, if he maintains substantial ongoing relationships with each and lives with each for a significant period. (People v. Moore (CA 1996) 44 CA4th 1323, 1335 [52 CR2d 256].)

RESEARCH NOTES:

See generally, FORECITE National™ 305.19.7 [Spousal/Cohabitant Abuse].

    Cohabitation means the sharing of family or financial responsibilities and consortium.

[See State v. Williams (OH 1997) 683 NE2d 1126, 1129; cf. OHIO JURY INSTRUCTIONS, VOLUME 4 - CRIMINAL, 4 OJI 519.25(16) [Domestic Evidence R.C. 2919.25] (Anderson, 2000); MONTANA CRIMINAL JURY INSTRUCTIONS, MCJI 2-101(6) [Cohabit] (State Bar of Montana, 1990) [cohabitation means to live together under the representation of being married].]

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RATIONALE: Because cohabitation depends on a variety of circumstances, it may be appropriate to instruct the jury on the relevant factors to assure the jury understands and reliably resolves this issue.

POINTS AND AUTHORITIES: "[D]efinitions of 'cohabitation' have two fact-specific prongs: financial support and consortium. Factors that establish financial support include shelter, food, clothing, utilities, and perhaps commingled assets. Factors that establish consortium include mutual respect, fidelity, emotional support, affection, society, cooperation, solace, comfort, aid to each other, friendship, conjugal relations and companionship. [Citation.] The facts that rise to the level of 'cohabitation' are unique to each case, and can only be sifted on a case-by-case basis by triers of fact. [Citation.]" (State v. Yaden (OH 1997) 692 NE2d 1097, 1101.)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 3.5; 4.1].

RESEARCH NOTES:

See generally, FORECITE National™ 305.19.7 [Spousal/Cohabitant Abuse].

    Factors you may consider in determining whether or not persons are cohabitating include, but are not limited to:

    1.    Sexual relations between the parties while sharing the same living quarters.

    2.    Sharing of income or expenses.

    3.    Joint use or ownership of property.

    4.    Whether the parties hold themselves out as husband and wife.

    5.    The continuity of the relationship.

    6.    The length of the relationship.

[See People v. Holifield (CA 1988) 205 CA3d 993, 1001 [252 CR 729].]

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    See FORECITE National™ 253.4 [Self Defense, Defense Of Others, Defense Of Property -- Complete].

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    See FORECITE National™ 256.1 [Battered Person’s Syndrome].

    See FORECITE National™ 253.1 [Battered Person’s Syndrome].    

RESEARCH NOTES:

See generally, FORECITE National™ 305.19.7 [Spousal/Cohabitant Abuse].

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PRACTICE NOTE: The defenses and defense theories discussed in this chapter are offered to provide ideas which may be helpful in developing a defense strategy and are not intended to be a complete checklist. Depending on the jurisdiction and the factual circumstances, other theories may be available. (See generally FORECITE National™ Volume 11: Affirmative Defenses And Defense Theories (Ch. 250-264).) For example, in any given case defensive theories may be available as to one or more of the basic elements of criminal liability. (See generally FORECITE National™ Volume 5: Basic Elements Of A Criminal Allegation And Defenses Thereto (Ch. 43-62).)