by David Heleniak

Prosecutors Declare War on Families

February 26, 2007 01:16 PM EST

2006 saw a refreshing increase in the number of commentary pieces tackling the problems with state domestic violence (DV) restraining order systems. Most if not all of these articles focus on civil DV restraining orders. In the October 2006 issue of The Yale Law Journal, Harvard Law School professor Jeannie Suk exposes a disturbing development that had not been commented upon before. In her eye-opening article “Criminal Law Comes Home,” Suk examines a practice in Manhattan that has become routine in criminal cases involving DV, the imposition of de facto divorces in which the government “initiates and dictates the end of ... intimate relationship[s]” by subjecting “the practical and substantive continuation of the relationship[s] to criminal sanction” (10).

The path to de facto divorce begins when a man is arrested for domestic violence. “The arrest may have come at the behest of neighbors rather than the victim herself. Or the victim may have called the police to seek specific intervention in that moment” (59). Whatever led to the arrest, with it, the alleged victim’s marriage to the defendant is very likely over, whether she likes it or not.

In Manhattan, “a leading jurisdiction … considered to be ‘in the forefront of efforts to combat domestic violence,’” domestic violence is defined by the D.A.’s Office as “‘any crime or violation committed by a defendant against … a member of his or her same family or household’” (42). A vast majority of these cases do not involve serious physical injury, and many of the cases charged do not allege any physical injury. But “[e]ven as the ‘violence’ of DV has been defined down,” to the point where harassment is considered violent, these cases “trigger application of a ‘mandatory domestic violence protocol’ different from other crimes” (44). As Suk explains, “[t]he uniform application of a mandatory protocol in every case represents the prosecutorial response to a paradigm story in which DV victims can turn into murder victims overnight. In the oral culture of a prosecutor’s office, a misdemeanor DV defendant has the potential to turn out to be an O.J. Simpson” (44). Indeed, “[r]ookie prosecutors are warned that their DV misdemeanors are the cases that could get their names in the newspaper for failure to prevent something serious” (44-45). In this culture of fear, “every case is treated as a potential prelude to murder” (44). This is despite the fact that “[p]rosecutors generally expect that DV victims will be unwilling to cooperate in prosecution” (46), a fact that speaks volumes about the level of the crimes being charged and the victims’ own take on the likelihood of serious crimes being committed in the future.

At arraignment, “the D.A.’s Office’s mandatory practice involves asking the criminal court to issue a temporary order of protection (TOP) as a condition of bail or pretrial release” (48). The TOPs typically prohibit all contact with the alleged victim and, naturally, with the defendant’s own home if the alleged victim lives there. “Ascertaining whether the victim wants the order is not part of the mandatory protocol. The prosecutor generally requests a full stay-away order even if the victim does not want it” (48). And, if children are involved, Suk’s copy of a D.A.’s Office’s manual instructs that since “‘[a]s a rule, criminal courts are not well-suited to determine issues of custody and visitation,’” prosecutors are “to prohibit DV defendants from contacting the children ‘except as permitted by a Family Court order’” (57, n. 241). Add to this the proviso: “‘However, in cases where there is danger of the defendant harming, intimidating, or improperly influencing the children, it is appropriate for the court to prohibit any contact…’” (57, n. 241). In other words, as Suk puts it, “the rule is no contact with the children unless the family court modifies the particular criminal court order (which itself occurs in the unlikely event that an A.D.A. anticipates no negative impact on the children)” (57, n. 241).

The de facto divorce is finalized at the plea bargain stage. “[T]he prosecutor offers the defendant a plea bargain consisting of little or no jail time (or time served) and a reduction of the charge, or even an adjournment in contemplation of dismissal, in exchange for the defendant’s acceptance of a final order of protection prohibiting his presence at home and contact with the victim.” Unlike the TOP, this order is of a substantial duration. Nevertheless, “[t]he offer is particularly attractive for a defendant who has remained in jail since arraignment pending disposition of his case; if he agrees he will be released” (55). And, for someone not in jail but at risk of losing his job because of the repeated court appearances he has had to make, an offer of a restraining order with no jail time is also attractive.

Of course, a final order of protection does not formally end a marriage. “Spouses can surely remain legally married even as they obey all the prohibitions of the order, but cannot live or act like they are married” (57). While no formal arrangements for custody, visitation, and support are put in place, “de facto divorce does entail de facto arrangements regarding custody, visitation, and support—that is, no custody, no visitation, and no support” (58). And, in this bizarre no-man’s land where criminal and family law converge, “the parties cannot contract around the result except by risking arrest and punishment of one of them” (58).” All the while, the wishes of the victims, for whose benefit the system supposedly exists, are completely ignored.

The CYA impulse to avoid negative headlines at all costs, even the breakup of families and the destruction of father/child relationships, is craven and despicable. Social conservatives, libertarians, and traditional liberals must unite to end this practice and, at the very least, prevent it from spreading if it has not already.

David Heleniak is a civil litigation attorney in New Jersey and Senior Legal Analyst for the True Equality Network.

Source: the Conservative Voice

Friday, October 12, 2007 5:40 PM

Gitmo at Home: DV Courts in America

October is Domestic Violence Awareness Month. Domestic violence is a very real and significant problem in America. This month would be a good time to address the attempt of state governments to combat domestic violence through the issuance of temporary and permanent restraining orders.

In the wake of the attack on the World Trade Center and our nation's response to terrorism domestically and abroad, there has been a flurry of negative reaction in the press to the subjecting of suspected terrorists to trial by military tribunal without the constitutional protections afforded other criminals. As John F. Kearney, III, put it in the March 24, 2003 issue of the New Jersey Lawyer, "All of us want as much done by government as possible to protect us from more Sept. 11 attacks or worse. None of us wants to be nuked, poisoned or fall victim to a suicide bomber. But none of us should want, either, to give away our hard-won liberties." While the legitimacy of using military tribunals to try accused terrorists is getting well-deserved attention, the media has been largely silent on a related topic, the legitimacy of trying defendants accused of a crime, domestic violence, in brief restraining order hearings in the family court, where defendants are denied virtually all of the due process protections afforded defendants in the criminal court. These systems have been in effect much longer than the anti-terrorism measures, and affect many more people, yet one hears very little about them.

Under New Jersey's Prevention of Domestic Violence Act, for example, ten days or less following the entering of a temporary restraining order (TRO), a final restraining order (FRO) hearing is held. At the hearing, required by the Act to be a summary proceeding, a Chancery Division judge is authorized to make a finding of fact by a preponderance of the evidence that the defendant committed an act of domestic violence, defined as one of fourteen enumerated crimes that include assault, burglary, rape and even murder. Having made such a finding, the judge may bar the defendant from seeing his kids and from ever setting foot in a particular house again, yet can make him pay the mortgage; make him provide monetary support to the plaintiff; force him to see a psychologist or psychiatrist at his own expense, who can in effect interrogate him and then write a report to the judge that can be used against him in a subsequent proceeding, such as a child visitation hearing; temporarily give the plaintiff exclusive possession of the defendant's car, checkbook, and other personal effects (which could include a beloved pet); bar the defendant from ever speaking to any individual that the plaintiff does not want him to speak to (which could include a beloved friend or relative); force him to turn any firearms he has into the hands of the proper authorities and bar him from ever possessing another firearm in his life; and make the defendant pay a "civil penalty" of $500.00. If the defendant does not comply with any aspect of the judge's order, he can be tried for contempt and imprisoned. Lastly, his name is put on a list of domestic abusers known as the New Jersey Judiciary's Domestic Violence Central Registry.

The potential for abuse of the Prevention of Domestic Violence Act is tremendous. A spouse willing to commit perjury can spend months or even years with his or her lawyer planning to file a domestic violence complaint at an opportune moment in order to gain the upper hand in a divorce proceeding and preparing the presentation of his or her case, while an accused spouse is given ten days or less to prepare a defense. Ten days is not nearly enough time to prepare for an FRO hearing. It is not even enough time for most defendants to fully understand the gravity of the situation they're in. The lack of time is compounded by the stress, alarm, and confusion caused by suddenly and without warning being thrown out of their homes by armed law enforcement officers.

Imagine the following hypothetical scenario. Upon the initial enforcement of a TRO, which was based on an allegation of physical abuse, a husband/defendant is thrown out of his house without so much as a toothbrush. He is allowed to take his wallet with him but is prohibited from taking his checkbook because the police officers fear that he might maliciously exhaust the marital assets. He isn't given a place to shower or sleep, and only has enough money in his wallet for a few meager meals. During this period, when his main concerns are about his physical survival, he is told that there will be an FRO hearing ten days from the filing of the complaint. Having no legal background, he has no inkling of the consequences of this hearing or of the goings on of a courtroom. He has not been advised he has the right to have an attorney represent him, and doesn't realize he needs one. He couldn't afford one if he did, but he has no right, unlike a criminal defendant, to be provided with free counsel. He arrives at court on the hearing day woefully unprepared, tired, unshowered, unkempt, and disheveled.

During the hearing, our hypothetical plaintiff introduces hearsay and alleges prior bad acts. Unfamiliar with the law, the defendant does not object to the judge's consideration of the improper evidence, but simply insists that it's untrue. He is surprised when she brings up events that were not alleged in the complaint, and taken out of context and twisted so as to only be partially true, the introduction of this evidence hurts his defense. He hasn't thought of these events for years and, caught off-guard, cannot articulate to the judge what really happened.

After a few short hours of testimony, the judge declares that the defendant committed the acts charged in the complaint, effectively labeling the defendant a wife beater. He is forbidden from returning to the marital home and from seeing his children, and is ordered to pay large sums of money periodically to his wife. Since he could not afford an attorney for the FRO hearing, he certainly cannot afford one for an appeal, and, not knowing the first thing about the appellate process, does not appeal the ruling. He wants desperately to see his children but he is baffled by the procedural labyrinth facing him and doesn't know what steps to take. At a subsequent proceeding regarding visitation, he is instructed to attend and participate in counseling. The court-appointed psychologist, having pre-judged him to be an abuser, continually advises the court not to grant visitation. He does not know when he will ever see his children again.

In ten days, the hypothetical husband has gone from having a normal life with a wife, children and home to being a social pariah, homeless, poor, and alone, trapped in a Kafkaesque nightmare.

A report put out by RADAR (Respecting Accuracy in Domestic Abuse Reporting) entitled "An Epidemic of Civil Rights Abuses: Ranking of States' Domestic Violence Laws" (pdf) ranks New Jersey's domestic violence statute as one of the laws "most likely to violate the civil rights of persons accused of domestic violence." Nevertheless, New Jersey's statute is not an anomaly, as a review of the report and another RADAR report, "Perverse Incentives, False Allegations, and Forgotten Children" (pdf), reveals. Political scientist Stephen Baskerville's online report "Family Violence in America: The Truth about Domestic Violence and Child Abuse" (pdf) makes it clear that false allegations of domestic violence and the legal system that rewards them is not only a national problem, but an international one as well. His book, Taken Into Custody: The War Against Fathers, Marriage, and the Family, confirms this. Just released by Cumberland House, it cites as an example of the national problem a shocking statistic put out by the Department of Justice: "a restraining order is issued every two minutes in Massachusetts."

Big Media probably won't report on the problem anytime soon. It's therefore up to bloggers, podcasters, and You Tubers to expose the due process fiasco that media silence has allowed to persist.

David Heleniak is a civil litigation attorney in New Jersey. This article is an adaptation of his Rutgers Law Review article "The New Star Chamber: The New Jersey Family Court and the Prevention of Domestic Violence Act."

Source: email from David Heleniak to Leonard Henderson