Battery Upon an Unrelated Roommate: The Issue of “Cohabitating:”

” I’ve been asked whether it qualifies as a “domestic violence” incident when two unrelated, not romantically nor intimately involved roommates get into an argument with one committing a battery on the other. My answer is “no,” . . . or at least, I don’t think so. Looking at the limited case law, the relevant statutes, and the various (albeit similar) statutory definitions of “domestic violence,” here’s what I found. The potentially chargeable crimes are as follows: Penal Code § 243(e)(1), which provides an enhanced misdemeanor punishment (i.e., up to one year in jail and a $2,000 fine) when the battery is committed against a victim who, among other listed “intimate” relationships, is “cohabiting” with the suspect. The term “cohabiting” is not defined. Penal Code § 273.5 elevates a battery to a felony offense (up to four years in prison and a $6,000 fine) when the battery causes “corporal injury resulting in a traumatic condition” to a person with whom the suspect is cohabitating. “Cohabiting,” although listed as one of the alternate (but necessary) elements, is again not defined. The “domestic violence statute,” however, (i.e., Pen. Code § 13700(b)), which uses a similar description for those who are eligible for domestic violence victim protections, specifically defines “cohabiting” as when the victim and suspect are “two unrelated adult persons living together for a substantial period of time, resulting in some permanency of relationship.” (Italics added) In determining that this means, section 13700(b) notes the following: “Factors that may determine whether persons are cohabiting 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 spouses, (5) the continuity of the relationship, and (6) the length of the relationship.” In my mind, this all hints strongly that there must be some sort of romantic or intimate relationship between the two. Where roommates are not intimately involved in some manner, the only factors that arguably apply are the sharing of expenses and the joint use of property. This does not appear to me to be enough, by themselves, to qualify as what the Legislature intended to be cohabitation. What little case law there is in this area seems to ....

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