A Closer Look at the New Misdemeanor DV Crime and the 48-Hour Rule

I previously blogged about the new misdemeanor crime of domestic violence, which will take effect on December 1, 2023. For the new offense, codified as G.S. 14-32.5, a person is guilty of a Class A1 misdemeanor if that person uses or attempts to use physical force, or threatens the use of a deadly weapon, against another person. The person who commits the offense must have a covered relationship with the victim, as specified by the statute.

While both the new misdemeanor domestic violence statute (G.S. 14-32.5) and the existing domestic violence pretrial release statute (G.S. 15A-534.1) require both a covered offense and a qualifying relationship, the requirements do not mirror one another. This post explores the interplay between the relationships listed under G.S. 14-32.5 and G.S. 15A-534.1.

Comparing the statutes

The list of relationships for the new misdemeanor crime of domestic violence (referred to in this blog as the new DV offense or a violation of G.S. 14-32.5) is broader than the list of qualifying relationships under the pretrial release statute (referred to here as the 48-hour statute or G.S. 15A-534.1). A person charged with the new DV offense will not necessarily be subject to the 48-hour statute. However, in some instances, a domestic violence scenario involving an assault could result in the defendant being subject to both statutes. Below is a chart comparing the requirements for the two statutes.

A number of offenses are subject to the 48-hour statute only if the defendant is charged with an offense listed in that statute and the defendant and victim are or have been in a relationship described in that statute. Two offenses always trigger the 48-hour rule—domestic criminal trespass and violation of a domestic violence protective order. The 48-hour statute does not require an additional showing of a qualifying relationship for these offenses because the relationship is an inherent part of the offense. Domestic criminal trespass requires a trespass onto property occupied by a present or former spouse or by a person with whom the suspect has lived as if married. Violation of a DVPO requires a knowing violation of a valid protective order, which would have only been issued if the parties had a qualifying personal relationship under the civil domestic violence statute, G.S. 50B-1.

To trigger the 48-hour statute, the new DV offense will require an additional showing of a qualifying personal relationship under the 48-hour statute. Although a personal relationship is inherent in the offense, the General Assembly has not amended G.S. 15A-534.1 to include G.S. 14-32.5 as an offense automatically subject to the special 48-hour pretrial release rule. For a defendant charged with G.S. 14-32.5 to be subject to the 48-hour statute, the relationship between the defendant and the victim must satisfy the requirements of both statutes. For example, a defendant could be subject to G.S. 14-32.5 if the defendant and victim share a child in common, but in that instance the defendant would not be subject to the 48-hour statute because “child in common” is not a relationship that triggers the provision.

Digging into dating relationships

The 48-hour statute refers to G.S. 50B-1 (civil domestic violence) to define dating relationship. Under G.S. 50B-1(b)(6), a dating relationship is one wherein the parties are romantically involved over time and on a continuous basis during the course of the relationship. The statute specifies that a casual acquaintance or ordinary fraternization between people in a business or social context is not a dating relationship.

The court of appeals has held that the term “dating relationship” in G.S. 50B-1 should be interpreted broadly to cover a wide range of romantic relationships, with “only the least intimate of personal relationships” excluded. Thomas v. Williams, 242 N.C. App. 236, 240 (2015). A short-term romantic relationship may therefore still qualify as a “dating relationship” within the meaning of G.S. 50B-1(b)(6). Id. Factors to consider in making the determination include:

  • how long the alleged dating activities continued prior to the alleged acts of domestic violence;
  • the nature and frequency of the parties’ interactions;
  • the parties’ ongoing expectations with respect to the relationship, either individually or jointly; and
  • whether the parties demonstrated an affirmation of their relationship before others by statement or conduct.

The new DV offense statute specifies that the term “dating relationship” is defined by reference to 18 U.S.C. 921(a)(37). Under the federal statute, the term “dating relationship” means “a relationship between individuals who have or have recently had a continuing serious relationship of a romantic or intimate nature.” Determining whether a relationship qualifies requires considering (i) the length of the relationship; (ii) the nature of the relationship; and (iii) the frequency and type of interaction between the individuals involved in the relationship. Like the definition in G.S. 50B-1, a casual acquaintanceship or ordinary fraternization in a business or social context does not constitute a dating relationship. A key difference, however, involves recency.

Past dating relationships

For each of the three past relationships covered under North Carolina’s 48-hour statute—former spouses, a person with whom the defendant has lived as if married, or a person with whom the defendant has been in a dating relationship—no time limit is specified in the statute. A broad interpretation of the statute thus indicates that it applies even to relationships that ended years or decades before the alleged conduct.

This approach is different than the “current or recent former dating relationship” as required for the new DV offense. The use of the word “recent” to describe the past relationship indicates that there is a limit as to how long ago the relationship must have existed. Although the new DV offense statute does not specify the outer limit for recency, it likely excludes relationships that ended years or decades ago.

While neither the new DV offense statute nor the federal statute defines the term “recently,” courts in other jurisdictions have found some relationships did not satisfy the recency requirement without expressly defining a time limit. See L. L. v. M. B., 216 Conn. App. 731, 745 (2022) (concluding that the trial court did not abuse its discretion in determining that a dating relationship which occurred two years prior to the filing of the application was not “recent.”); Sanchez v. State, 499 S.W.3d 438, 443 (Tex. Crim. App. 2016) (finding that a period of three years between the end of the dating relationship and the assault “does not fit within the concept of recently.”). Until there is guidance from a higher court, it seems that North Carolina trial courts will have to determine whether a relationship is “recent” within the meaning of the statute.