Articles Posted in Domestic Violence

Yesterday, the Boston Globe reported on a murder that almost certainly could have been prevented, involving a domestic violence call that Boston Police Department officers had responded to a year ago, in November 2014.  This story has cause a lot of concerns among the public about the effectiveness of restraining orders, that I’d like to address today.

The BPD officers who responded to the call, reportedly did not check to see whether the victim had previously been previously granted an Abuse Prevention Order (restraining order) against her boyfriend.  Doing so is the first order of business when police officers respond to calls of domestic abuse.  Instead, the officers removed the boyfriend from the apartment, and dropped him off at a detox center.  A day later, that person murdered the victim, who previously had, in fact, taken out a restraining order against him.  If the officers had checked this out as protocol requires, they would have arrested that person, immediately.  To be fair, both the victim and the accused were reportedly extremely intoxicated at the scene, and in no condition to convey accurate information to the officers.   Regardless, the officers could have checked for this information, with a simple call to their dispatcher. Continue reading

Well, tomorrow is Super Bowl Sunday, that annual excuse to spend 10 hours in front of a TV screen, stuffing your face, imbibing probably more than your share of alcohol, and screaming like a banshee every time “your” team scores a touchdown. (Can you tell I’m not a big sports fan? Unusual for a guy, I know, but that’s part of who I am.)

As everyone knows, the TV ads that run during the Super Bowl are among the most expensive – if not the most expensive – that the networks sell throughout the year. The half time shows involve performances that cost tens of millions of dollars for perhaps 20-25 minutes time, and evoke memories of past performers like Michael Jackson and Madonna. But it’s the commercial ads that really rake in the money. How much money? NBC is reportedly charging $4.5 million for a 30 second spot during the Super Bowl.

So it didn’t pass without notice when the NFL announced that it will run a Public Service Announcement (PSA) spot during the Super Bowl that will emphasize the importance of preventing domestic violence. The PSA was the result of a partnership between the NFL and No More, an organization formed last year to combat domestic violence and sexual assaults. The ad depicts a scene of a house where items have been knocked to the floor, and a woman is calling 911. The woman pretends to be ordering pizza, so that her abuser doesn’t become aware she is calling the police. The spot ends with the tagline: “When it’s hard to talk, it’s up to us to listen” and displays the website for No More. No NFL branding appears in the spot.

The subject of Massachusetts domestic violence charges has been elevated to a fever pitch over the last few months. This has been fueled by the case of Jared Remy, who was sentenced in June to life in prison without the possibility of parole for murdering his girlfriend, Jennifer Martel.

The reason why this case has fueled debate over reforming Massachusetts domestic violence laws, is that Remy was a multiple offender with a long history of abusing Ms. Martel and previous girlfriends, and the court system never reined him in. It was claimed that Ms. Martel did not report previous instances of abuse, because she did not want her name to be made public in local police logs, which news reporters regularly plumb for publication. Currently, when a call is made to local police for any reason, the name and address of that caller and any parties involved in the call become public information in the city or town’s police logs. In domestic violence calls, the name of both the victim and the alleged abuser are entered into the police log. Advocates for the abused, including Jane Doe, Inc., a statewide organization that advocates for domestic abuse and rape victims, say that this fact discourages potential victims from calling the police. They say that if a domestic violence victim knew that her (or his) name would not be made public in the police log, they would be “more likely” to summon help.

That claim is somewhat anecdotal, but perhaps that’s true. It’s difficult to know precisely. To deal with this issue, the legislature has passed, and now sent to Governor Deval Patrick‘s desk, a domestic violence reform bill that would shield the names of both the alleged victims of Massachusetts domestic violence, as well as the names of alleged abusers. The relevant names will not appear in police department logs – unless and until the case is prosecuted in court. At that point – once an accused person is arraigned – the names of both the alleged victim and alleged abuser, would become public information (as is the procedure currently.) Supporters of the bill say the confidentiality provisions will encourage more reporting of domestic violence. Weston Police Chief Steven Shaw, supporting the bill, has commented that “My concern is that the way it is now … people that are being abused .. can end up in the paper. People are worried about their image.”

In my previous post on this subject, I wrote about how, for a variety of reasons that are both wise, and also some unwise, police departments these days are extremely aggressive when it comes to responding to reports of domestic violence. It is almost standard procedures these days that, when patrol officers respond to a “domestic,” one of the parties on the scene is going to be arrested – regardless of what the parties say or how minor the conflict or argument might have been. As I said, most of the reasons for this aggressive policy are sound and wise – but some are not. The reasons that are not so wise are grounded in an unstated policy with many Massachusetts police departments of “CYA,” in my professional opinion as a Dedham domestic violence lawyer.

That’s my professional opinion, based on years of experience in the courtroom, and I suppose it can be debated. What’s not subject to debate is a fact that, ironically enough (and worse, hypocritically enough,) a great many police departments do just the opposite when it comes to their own officers: Many look the other way when it comes to reports of domestic violence in police households. In fact, while most cops can be fired or severely punished for something so minor as testing positive for marijuana use, they can remain on the job and in uniform for battering a spouse or girlfriend/boyfriend.

Yes, you heard that right. You can get up off the floor now.

As my website page on Massachusetts Domestic Violence Charges makes clear, this is one type of crime that police departments across Massachusetts issue pretty clear department policies on: When patrol officers respond to a call for a “domestic,” (as these dispatch calls are known in law enforcement circles,) someone’s going to get arrested. This is nearly a foregone conclusion even before the officers arrive at the location; even before they’ve had a chance to assess the situation, on scene.

Why? The reason is part historical – much of which justifies this hard-line approach, and part of the reason is political – much of which doesn’t justify the hard-line approach. Very briefly: Historically, 25+ years ago, “domestic violence” charges were often viewed by police officers and their departments as being merely fights between a couple, which almost every couple can sometimes have. Unless responding officers found someone that was clearly physically harmed or terrified for his (usually her) safety, they would commonly separate the couple, calm both parties down, and urge them to resolve their argument so that no one got in trouble. In the instances when someone was arrested, unless there were serious injuries involved, prosecutors and judges also treated the matter lightly, letting the defendant pretty much off the hook with a relatively quick and easy judicial disposition.

The problem with this soft-line approach was obvious: Eventually, a victim that might have been shoved or hit today, was tragically going to be harmed much worse by the abusive spouse or partner that was “let off the hook,” later on. Perhaps even killed. And that’s exactly what happened – on a much wider scale than some people might have guessed.

In my last post I wrote about the Jennifer Martel murder, and that something appeared to have gone wrong with Jared Remy being released from custody at his Massachusetts domestic violence charges arraignment, even though Remy had a long criminal record of assaulting women. Actually, Remy was both released without bail the night of the assault and again at his arraignment the next morning. There is a law in Massachusetts that would have allowed a judge to hold Remy behind bars for up to 90 days, following prosecutors’ motion for such a hearing. That law is commonly known among lawyers as the “Massachusetts Dangerousness Statute,” embodied in M.G.L. Chapter 276, Sec. 58A.

Dangerousness hearings are held to determine whether or not a defendant poses a threat to either a specific person (almost always the victim,) or to others in general. Under the law, a judge can hold a suspect for up to 90 days if he or she believes that no conditions of release “will reasonably assure the safety of any other person or the community.” According to court records, Remy was in fact held for 81 days in 2005, following charges that he punched, kicked, and dragged a former girlfriend.

But prosecutors didn’t move to have Remy held this time – with tragic consequences. Let’s take a closer look at this:

It’s happened again: A horrific murder accompanied by a celebrity/media angle. This time – Jared Remy, son of the broadcaster for the Boston Red Sox, Jerry Remy. Jared Remy, who has an arrest record involving violence against women, has been charged with stabbing to death his girlfriend, Jennifer Martel, 27, on Thursday August 15 2013 at the Waltham residence they both lived in.

Aside from the defendant’s-related-to-a-celebrity angle, the key reason that this case has generated so much media coverage revolves around the fact that Remy was released on bail after being arrested and arraigned on assault & battery charges against Ms. Martel, which are sub-elements of Massachusetts domestic violence charges. It was while Remy was on bail that he allegedly murdered Ms. Martel – by allegedly stabbing her to death. The controversy is hot because there is a Massachusetts statute that exists, which can hold domestic violence defendants in jail for up to 90 days if a judge feels that releasing the defendant on bail would pose a dangerous physical threat to the victim or others. That law, called the “Dangerousness statute,” was passed by the Massachusetts legislature in the 1990s, following the murders of several women by their male partners that had been released on bail in domestic abuse cases. The statute was intended to be a tough law that would prevent this type of tragedy.

But there’s a key requirement in the statute: The victim must be willing to help police and prosecutors make an effective, convincing argument to hold the defendant behind bars. If the victim is unwilling to do so, prosecutors rarely go forward with such a motion. The odds of persuading a judge to hold a domestic violence defendant in custody, without the cooperation or assistance of the alleged victim, is so low that DA’s offices very rarely bother trying when the victim is not willing to cooperate by testifying against the defendant. When a judge asks the prosecutor, “Is the alleged victim here to testify, or is she/he in favor of this motion?,” and the answer is “No” to either or both questions, a judge is going to be very hesitant to lock someone up.

Massachusetts domestic violence charges are one of those types of criminal offenses that can be very vague. When people first hear “domestic violence,” most immediately conjur up images of women being brutally beaten or abused by a spouse or boyfriend. While that can be tragically true, it’s not always necessarily so. “Domestic violence” is an amorphous term. Could you say right now what that term really means? The truth is, that while it can mean violent or harmful physical abuse – in which case it should be prosecuted – sometimes these charges reflect anything but a violent, abusive physical confrontation. Sometimes, the event that occurs is little more than an argument. Yet, people can very easily end up in court facing this kind of charge. As a Boston domestic violence lawyer, I see it all the time.

Why and how does this happen, if what occurred in a given situation really wasn’t violent or “abusive,” (as most reasonable people would interpret that term)? Two answers: 1) Hyper-caution, and 2) Liability issues. You see, in days gone by (the “bad old days,”) when a couple got in an argument and police were called, officers used their discretion in deciding whether or not to arrest someone accused at the scene of domestic violence or Massachusetts assault and battery charges. If police sensed that what occurred between the couple was very minor and did not present a safety issue for either person, they would typically de-escalate the situation, urge the couple to resolve their conflict, and, if they felt neither partner’s safety was threatened, they’d leave, file a report, and no one would be arrested.

Or, when an arrest was made, the case would be dealt with very lightly by prosecutors and judges. Then, some time later (perhaps months, perhaps a couple of years,) that same couple would have another fight, and one of them (usually the woman, but not always,) would end up being severely beaten or killed. For those of you unfamiliar with public relations, that results in front-page news and political outcry. Whose picture ends up on the front page and in news broadcasts? A) The judge who let the defendant off easily; B) The District Attorney who didn’t prosecute the case aggressively enough and C) The city or town Police Chief, whose officers didn’t make an arrest when called to the scene. Result? Big trouble, for a lot of people. Worse, on a financial level municipalities began being sued by victims of domestic violence, who claimed negligence on the part of the city or town police department, for not arresting the accused abuser.

The Massachusetts Supreme Judicial Court (SJC) issued a major ruling this week, clarifying the type of “romantic”, or dating, relationships that can qualify for the issuance of an Abuse Prevention Order, (“Restraining Order,”) otherwise known legally in Massachusetts as a “209A Order.” 209A refers to the originating statute, Massachusetts General Laws Chapter 209A.

The statute was enacted several years ago to provide protection from abuse for people who were, (among other definitions) related family members, married, or in a “substantive dating relationship.” As a Boston, Massachusetts domestic violence attorney, I can tell you that determining whether parties to such an Order are related or not, is usually fairly easy. But as to what “substantive dating relationship” means, the statute allows judges to consider a number of factors, including: 1) The length of the relationship; 2) The type of relationship; 3) the Frequency of interaction between the parties; and 4) Whether the relationship has been terminated by either person, and the length of time elapsed since the termination of the relationship.

All this worked for a while, but time and – in this case, technology – have a way of making the obvious obsolete. Hence, the need for the court’s ruling that I’m talking about today. With the rise of the internet, came internet dating: That vast expanse of cyber space where millions of lonely hearts surf the waves of the world wide web, looking for companionship, compatibility, and (not unexpectedly,) coitus (that’s sex, for the uninformed.) Let’s say that two people find each other on the internet and start an “online relationship”: They exchange intimate details about themselves, engage in amorous written exchanges, but then something goes wrong (as it often does in these situations.) If one person to that online “relationship” feels physically threatened by the other person, does that person qualify to be granted an Abuse Prevention Order (Restraining Order) under Chapter 209A? Or is that “pushing the legal envelope”?

As a Boston criminal defense attorney, I want to again say upfront that all persons are innocent until proven guilty.

Still, it is always surprising when a lawmaker is charged with assault, because the court of public opinion always seems to assume that he is guilty.

This past week Carlos Henriquez, a first-term state representative from Dorchester, stands accused of Boston assault and battery involving allegedly repeatedly punching and choking a 23-year-old college student. She says that she escaped early Sunday morning only by jumping out of a moving car on the Fenway.