As a former prosecutor, I have watched with dismay as the criminal court system ruins the lives of families where one spouse has been accused of domestic violence. There is no excuse for physical abuse, and it is surely the responsibility of the courts to protect families from domestic violence.
However, we currently have a system that often makes families' lives much worse. Whenever I watch our system fail these families, whether because of politics or paternalism, I am reminded that we need a new approach to handling first time prosecutions alleging domestic violence.
I recently observed one especially egregious case, where a prosecutor strongly objected to modifying a restraining order to allow peaceful contact between a husband and wife on a misdemeanor domestic violence charge. The alleged victim was in court with her own attorney asking to have the order modified to allow contact between the spouses. The prosecutor was objecting.
The defendant was already out of custody and wanted to live with his family, and this was what the wife wanted too. This situation is all the more disturbing when you consider that the restraining order allowed for no contact, and the defense was merely seeking an exception for peaceful contact. A protective order would still be in effect, but only protecting the alleged victim from unwanted contact. Yet still the prosecutor objected.
Have we really come to a place where a prosecutor's judgment is substituted for a family's understanding of what it needs? Is this really something to which a prosecutor should be able to object? Does a prosecutor—armed with little more than a police report—know better than a husband and wife what is best for a family?
If the defendant is that much of a danger than shouldn't the prosecutor being asking to raise bail? And if he is that dangerous, what kind of protection would a piece of paper specifying no contact really give?
There are a variety of reasons why such prosecutorial overreach can occur. Sometimes, as in the situation above, the cause seems to be sheer paternalism. But this problem is exacerbated by the politicization of domestic violence.
Both prosecutor and judiciary—fearful of appearing “soft” on crime—are forever looking over their shoulders on even the most minor of incidents. Consequently, we have Superior Court judges routinely issuing protective orders forcing the alleged batterer to move out of the family home, imposing financial hardship on a marriage that may already be strained in the first place.
Similarly, prosecutorial agencies, always under a microscope when handling domestic violence cases, feel forced to file cases that would otherwise be questionable. Political motivations should never be a consideration when making filing decisions, but ask any prosecutor, who has been around for a while, whether things have changed since the OJ Simpson case, and you'll undoubtedly get an earful.
Considering all of these problems, the criminal court system seems ill equipped to assess the best interests of families.
Surely we can do better as a society. What is truly needed is something of a hybrid family/criminal court that would be allowed to consider the best interests of the family instead of being hampered by a well intentioned, but rigid penal code that strips a judge of discretion to treat different fact patterns differently. Unfortunately, this seems a long way off and the families dragged into the system will continue to suffer.