What Does "Cohabitation" Mean In Domestic Violence Cases?

This post is offered as a discussion topic only and does not represent legal advice. Officers must refer to the laws in their own State as well as their agency's policies, which can be more restrictive on officers than the law requires.

California Penal Code 243(e)(1) explains that domestic battery is, "When a battery is committed against a spouse, a person with whom the defendant is COHABITATING, a person who is the parent of the defendant’s child, former spouse, fiancé, or fiancée, or a person with whom the defendant currently has, or has previously had, a dating or engagement relationship." California Penal Code 273.5 has a similar line regarding cohabitation. By simply reading these penal codes, it would seem to indicate that anyone who is living with another person, like a roommate, could be found to have committed domestic battery if they were involved in an altercation.

So, the question is, what is the legal definition of cohabitation?

Well, California Penal Code 13700 defines cohabitation as, "two unrelated adult persons living together for a substantial period of time, resulting in some permanency of relationship. 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."

So even by that definition, sexual intimacy is not a required element. But, as with so many things that make enforcement of these statutes challenging, those penal codes don't tell the entire story and police officers need to turn to multiple sources for clarification. If officers turn to Calcrim Jury Instructions 840 and 841 for Penal Codes 243(e)(1) and 273.5, they point us to two California Court of Appeals cases for the definition of cohabitation. The first case is People v. Ballard from 1988 but the definition they gave was modified just a few months later in People v. Holifield, also from 1988. In that case, a man was determined to have beaten a woman with whom he lived but his defense was that Penal Code 273.5 was not applicable to his case because cohabitating was not clearly defined. The court decided that, "cohabiting under section 273.5 means an unrelated man and woman living together in a substantial relationship — one manifested, minimally, by permanence AND SEXUAL OR AMOROUS INTIMACY."

But, of course, that creates another issue in saying only a man and woman can cohabitate. Well, that's because that's how the law was written back then. But in 1996, a California Court of Appeals case called People v. Moore, explained that, "Both Ballard and Holifield speak in terms of a man and woman living together because, before 1994, the relevant portion of the statute encompassed only persons of the opposite sex. In that year, the Legislature deleted the reference to persons of the opposite sex, thus criminalizing infliction of injury upon a spouse or any person with whom he or she is cohabiting." 

And in that same case, they also addressed whether someone could simultaneously cohabitate with two people at two different locations. They said, "We conclude as a matter of law that for purposes of criminal liability under section 273.5, a defendant may cohabit 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 significant periods."

So yes, sexual or amorous intimacy is a required element of cohabitation for purposes of domestic violence in California.

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