I often get asked this question: In Utah, am I committing the crime of criminal mischief, or even domestic violence, for simply breaking my own stuff?
Here is my answer: That depends – your stuff may also belong to your spouse, too, and if that is the case, we need to consider many more things.
The law is not very clear on this. Utah Code § 76-6-106 simply says that a person commits criminal mischief if he “intentionally damages, defaces, or destroys the property of another.
I would like to expound on that by saying it is implied that spouses have a lot of leeway to dispose of things, and even intentionally break things. Let’s take an extreme case, but put it two different ways.
Situation 1: Sally, Henry’s wife comes home and sees that he has torn out a wall. She says, why did you do that? And he says, “Because it reminded me of your ugly face.”
Situation 2: Sally, Henry’s wife comes home and sees that he has torn out a wall. She says, “Why did you do that?” And he says, “Happy birthday! I am making the kitchen bigger for you – you are gonna love it when I’m done.”
Now, let’s assume that Sally is furious over both situations, and so she calls the police. Henry admits to what Sally tells them. Your gut should tell you that he would likely be hauled off to jail for situation 1, but not for situation 2, even though Sally is furious that her kitchen has been demolished. Why? Because the destruction was not directed at Sally, it was motivated by doing something productive, even though Sally hates the idea of a bigger kitchen.
There is NO QUESTION that Henry destroyed the property – the wall – of another. So, if we only look at the law, Henry would be guilty for both situations. But as a juror, you would know that situation 2 was not a crime.
When the police show up, they typically hear something like, “My husband was very angry, so he slammed the door, and a picture fell off the wall and broke”.
Most people would say, “Well, he’s gonna get busted!” Now, if the man in this situation does not know the finer points of this law, he will likely go to court and plead guilty, and would thus get a criminal record. However, if he had an experienced lawyer from the law firm of Greg Smith and Associates in Utah, he may get the case dismissed. Why? Because there is so much more to the law than that.
You see, when the police show up, they just ASSUME the other spouse would NEVER have agreed to such a thing – and the other spouse doesn’t really think it through either. Everybody just assumes it is criminal mischief and domestic violence. The man could be facing a lot of criminal charges: criminal mischief, domestic violence, domestic violence in front of the kids, etc. Having all this on his record could have a devastating impact on the family.
If we can establish that the spouse was okay with what happened, and was just fine with their spouse blowing off steam that way, I don’t see how the city could prevail – especially if the spouse makes it clear the husband was merely angry, but she did not think he was trying to direct the action of the picture falling at her. Being angry is not a crime. And the statute does not say that being angry has anything to do with the crime of criminal mischief. In fact, people who get convicted under this law for graffiti do their crimes joyously.
Consider these questions: 1) Has the complaining spouse done the same kind of thing, too? For example, has she ever tossed anything of value in the trash without Henry’s permission? 2) Has the offending spouse done this type of thing before and the victim spouse did not protest – so do we have implied consent? 3) Yes, damage occurred, but was the man trying to send her a terroristic message, or just blowing off steam? 4) Was it a message that he was gonna hurt her, or just a message that he was getting worked up, so he thought it would be better for him to leave the room, which is a clear message that he is trying to protect everybody from his temper?
Trying to protect people is a positive thing, as is trying to make a bigger kitchen for one’s wife, even if the wife does not like it. You see, the law does NOT say that criminal mischief happens simply because the other spouse did NOT like what happened.
Also, just because somebody gets mad over something does NOT mean they did not consent to it. This sounds absurd at first. But, we often see athletes pushing and shoving each other in anger, yet neither one of them is walking away! Why? Because they are consenting to the drama. A person can consent to something they don’t like. Married people often consent to sex even though they are really not in the mood. They may even be disgusted by it, yet, they consent to it, so it clearly is not rape in those circumstance. Maybe they only consent because they don’t want to cause a divorce, etc. You can have two brothers violently wrestling in their back yard, and even getting furious at each other, while consenting to the whole thing.
Here is the bottom line: if the city could establish that the “destruction” was to terrorize, threaten or exert control over their “victim” as an act of domestic violence the city would have a better case. It is not in the statute, but that seems to be implied based on what courts across the land have said when reviewing such cases. Here is how one New York court put it:
“[B]atterers often damage property to terrorize, threaten and exert control over victims of domestic violence.” People v. Kheyfets, (N.Y. Sup. Ct. 1997).
So, what is property of another?
Here is how the Utah code (section 76-6-101) defines property when it comes to this law:
(c) “Property” means:
(i) any form of real property or tangible personal property which is capable of being damaged or destroyed and includes a habitable structure; and
(ii) the property of another, if anyone other than the actor has a possessory or proprietary interest in any portion of the property.
(d) “Value” means:
(i) the market value of the property, if totally destroyed, at the time and place of the offense, or where cost of replacement exceeds the market value; or
(ii) where the market value cannot be ascertained, the cost of repairing or replacing the property within a reasonable time following the offense.
(2) If the property damaged has a value that cannot be ascertained by the criteria set forth in Subsection (1)(d), the property shall be considered to have a value less than $500.
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