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 are currently operating within a system that often exacerbates the plight of these families. Each time I witness our system falter in its duty, whether due to political influences or misguided paternalism, I am struck by the pressing need for a fresh approach to handling first-time prosecutions of 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 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 truly reached a point where a prosecutor's judgment takes precedence over a family's understanding of its own needs? Is this a situation where a prosecutor should have the authority to object? Does a prosecutor, armed with little more than a police report, truly understand what is best for a family better than the family itself?
If the defendant is that much of a danger, shouldn't the prosecutor be 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. However, 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 families' best interests.
Undoubtedly, we can strive for better as a society. What we truly need is a hybrid family/criminal court that can prioritize the best interests of the family, unshackled from a well-intentioned but inflexible penal code that limits a judge's ability to treat unique situations differently. While this may seem like a distant goal, it holds the promise of a brighter future for the families ensnared in the current system.
