Criminal Mischief - Charge in Domestic Violence

Memorandum of Law


Whether or not a prosecutor in New York can charge defendants with criminal mischief based on their destruction of community owned property?


New York makes it a crime to damage the "property of another person" where the defendant has "no right to do so nor any reasonable ground to believe that he has such right." N.Y. Penal Law Sec. 145.00 (McKinney 1988). However, in New York, criminal mischief is not routinely used in domestic violence situations to charge a defendant for destroying community property. This is so even though batterers often damage property to terrorize, threaten, and exert control over a victim of domestic violence. Catherine F. Klein & Leslye G. Orloff, Providing Legal Protection for Battered Women: An Analysis of State Statutes and Case Law, 21 Hofstra L. Rev. 801, 872 (1993). In many New York counties, a batterer can destroy property in the marital residence without criminal consequence.[1] Other states have found defendants guilty under similar statutes for damaging community or marital property. To illustrate the nature of the abuse and the context in which criminal mischief could be used, the following actual case is offered as a backdrop to this discussion.

On November 2, 1995, Mr. X broke many items in the marital residence - including a chair, a cookie jar and other bric-a-brac, and a $500.00 table that Mrs. X had won two months earlier at a church auction. Interestingly, Mr. X did not break any of his dental equipment or his model airplanes or his personal property. Clearly, the unusual table belonged to his wife and, thus, became the object of his anger. (Mr. X later admitted on tape that when he gets angry he breaks things.) The District Attorney's Office refused to charge Criminal Mischief as a felony (or misdemeanor). As Mrs. X pondered, "If he's not charged with criminal mischief, what will prevent him from trashing every item in that house?"

A husband does not have a right to destroy the property of his wife just because he too may have an ownership interest in the property. As noted in People v. Kahanic, 196 Cal. App. 3d 461, 466 (1987), where a wife was convicted of vandalizing the car that she and her husband owned, "The essence of the crime is in the physical acts against the ownership interest of another, even though that ownership is less than exclusive. (People v. Stanford (1940) 16 Cal.2d 247, 251, 105 P.2d 969.) Each community property owner has an equal ownership interest and, although undivided, one which the criminal law protects from unilateral nonconsensual damage or destruction by the other marital partner." The court also noted that "Property is deemed to be that of another if any person or government other than the actor has a possessory or proprietary interest therein." Kahanic, 196 Cal. App. 3d at 464 (quoting IV Warton's Criminal Law (14th ed. 1981) Malicious Mischief, Sec. 490, p. 96). Based on this reasoning, it is logical to construe the language "the property of another" in the New York criminal mischief statutes to include property where ownership is shared between husband and wife.

An Illinois Appellate Court looked to the language of the Illinois arson statute to determine that "property of another" means persons other than the offender. In People v. Schneider, 487 N.E. 2d 379 (Ill. App. Ct. 1985), where the court held that defendant could be convicted for damaging an automobile in his wife's possession, even though the defendant assertedly had partial ownership interest in the automobile, the court noted that the arson statute defined "property of another" as "property in which a person other than the offender has an interest which the offender has no authority to defeat or impair, even though the offender may also have an interest in the property." Id. at 380. After reading the arson statute the court concluded that "the malicious mischief statute for damage to property must be read to impose criminal responsibility on a person who damages another's interest in property, regardless of whether ownership of the property in question is shared." Id.

Similarly in State v. Webb, 64 Wash.App. 480, 824 P.2d 1257 (Ct. of Appeals, 1992), where the court upheld the defendant's conviction for damaging property in the apartment he used to share with his estranged wife, the court looked to the application of the Washington theft statute to interpret that the "property of another" language in the malicious mischief statute includes property co-owned by the defendant. The court cited State v. Pike, 118 Wash.2d 585, 589, 826 P.2d 152 (1992), which held that the "property of another" element of theft consists of property in which another person has an interest and over which the "defendant may not lawfully exert control...absent the permission of that other person." Webb, 64 Wash.App. at 490. The court found that because, unlike theft, malicious mischief involves the destruction of property, and therefore, possession can never be redeemed, sound policy reasons exist to treat the term "property of another" in the malicious mischief context differently than in the theft context. Id. at 491.

In State v. Zeien, 505 N.W.2d 498 (Sup. Ct. Iowa, 1993), where the defendant was convicted of malicious mischief for damaging contents in the home of his estranged wife, the court used the principles of general property law to hold that the malicious mischief statute applied to marital property damaged by one's spouse. The court noted that under general property law, when married persons own property together each has "a separate, distinct and undivided interest in all of the property so held." Id. at 499 (citing In re Estate of Rogers, 473 N.W.2d 36, 40 (Iowa 1991)). Applying those principles to the case in Zeien, the court said that the wording of the malicious mischief statute, as well as public policies of preventing domestic violence and damage to property generally, suggests that the statute should apply to marital property as well as any other. Id.

There are many advantages to using the criminal mischief statute in domestic violence situations. The Domestic Violence Unit Chief of the San Diego Police Department, Lieut. Ray Sigwalt, has stated that the single biggest advance in domestic violence intervention occurred when California's vandalism laws were interpreted to apply to a batterer's destruction of community property. Application of the criminal mischief statute in domestic violence situations lessons problems that arise is charging a batterer with assault, (where injuries frequently are either not yet "repined" or misdemeanor level), because the police are there to witness the destroyed property. Furthermore, for a felony conviction under criminal mischief in New York to lie, a batterer would only have to break a good sized television, but for a felony conviction of assault to lie, the threshold of proof needed to establish the requisite physical injury is very high and most often unattainable. A tangential benefit to interpreting criminal mischief to apply to destruction of community property is that it will be one more tool that police officers can use to decide who is a primary aggressor during a domestic violence physical altercation. If the television has been hurled at a door and the wife is five foot two and the husband is 6 feet tall, police discretion and investigation will probably reveal that the husband was the aggressor, even if both parties exhibit minor injuries. The decision who to arrest (and in what context to avoid mutual arrest) is clearer when the criminal mischief misdemeanor and felony statutes are available charging options. Moreover, if domestic violence is truly criminal in nature (as stated in the Findings preceding the Family Protection and Domestic Violence intervention Act of 1994), and if destruction of a spouse's property is understood in a given context as a form of control, bullying, and fear inducer, and, thus, as a form of domestic violence, consistency suggests being able to charge batterers with the crime of criminal mischief.

In states where defendants can be convicted of criminal mischief for damaging community or marital property, the statutes are similar to the New York criminal mischief statute. However, New York's statute contains a negligence standard that the other statutes do not. Therefore, a defendant can be convicted if he had no "reasonable grounds to believe" he could destroy property. Thus, in a domestic violence situation, the defendant will always have a potentially viable mistake of fact defense by stating that he thought he had "reasonable grounds to believe" he could destroy the property since he owned it too. The difficulty with the wording of the statute is that it places on the People the burden to prove beyond a reasonable doubt that the defendant did not have a reasonable belief that he could destroy the property in question. The positive flip-side is that a juror can dismiss a defendant's protestations of lack of intent if they find his excuses to be unreasonable. Under many of the circumstances in which vandalism of community property takes place, as in the previously discussed case of Mr. and Mrs. X, the res gestae of the case can establish that the defendant's choice of destructive actions speak louder than his words of explanation.

It should be noted that in some states, criminal mischief may also be grounds for a criminal or family court order of protection. Currently nine states issue civil protection orders based on malicious property damage: Delaware, Georgia, Hawaii, Indiana, New Hampshire, New Jersey, New Mexico, Tennessee, and Washington. When a husband destroys a television, breaks dishes or kills the family cat, a woman knows that she may be the next target of his destruction. New York may wish to consider issuing orders of protection on these grounds as well.


No New York appellate court has interpreted the statutory language of Article 145 in the context of whether a husband can be charged with criminal mischief for destroying community property. Appellate courts in California, Illinois, Iowa, and Washington have held that such charges are viable and based on sound public policy. No appellate court in any reported decision from any other state has held contra. Consideration should be given to training and leadership momentum to acquaint law enforcement and prosecutors with the availability of criminal mischief as a valid law enforcement weapon in the war against domestic violence.

[1] Sometimes the batterer who has broken a window in the home or otherwise destroyed property in the course of a domestic violence incident will be charged with the violation of Harassment, under Penal Law Sec. 240.25. Such a non-criminal nomenclature belittles the damage that has been perpetrated and fails to adequately describe the nature of the wrongdoing.