Domestic violence law shields identities of victims and assailants

A law signed in 2014 provided for sweeping changes in the prosecution of domestic assault cases in Massachusetts.

0
The MV Seacoast Defense Chapter of the Daughters of the American Revolution will conduct a wreath-laying ceremony at the Vietnam War memorial monument in front of the Dukes County Courthouse on Main Street in Edgartown. – MV Times file photo

In August 2014, then-Governor Deval Patrick signed a large and complex piece of legislation that overhauled the laws which apply to domestic violence. Most significantly, “An Act Relative to Domestic Violence” specifically defined and broadened what constitutes an assault on a romantic partner, impounded police reports, lengthened the waiting period before bail could be set, and mandated optional time off work for victims.

Many of those changes are now reflected in the weekly court report published by The Times, which often lists the charge of assault and battery on a family or household member, a new definition the law created.

One change intended to protect victims of domestic violence — restrictions on access to police logs and reports — has generated some criticism because it also helps shield individuals accused of domestic violence.

In interviews with The Times, local and state law enforcement officials pointed to the momentum for change generated by the details of the Jeremy Remy trial in May 2014, which resulted in a first-degree murder conviction for the 35-year-old son of well-known Red Sox player and sports broadcaster Jerry Remy.

Following a complaint by Jennifer Martel, his girlfriend and the mother of his child, Mr. Remy, who had a long history of domestic violence, was taken into police custody. Released a short time later, he returned to their Waltham apartment and brutally murdered Ms. Martel.

Gov. Patrick signed the legislation, effective immediately, less than two and a half months after the conviction of Mr. Remy, instituting sweeping changes to the legal processes governing those accused of crimes of domestic violence.

Large shield

Under the new law, when police receive a call about domestic violence, or respond to an incident that appears to include domestic violence, that information is required to be excluded from the police blotter, and any consequential reports are to be impounded.

Following an arrest, only the victim, law enforcement, the defendant, and lawyers may access the police report. The public, including reporters, may only view the report following an arraignment, and once it is filed in a courthouse.

Police are no longer allowed to release police reports concerning domestic violence. If there is no arraignment, police responses related to domestic violence to a particular address or for an individual may never be made public. The reasoning is that given the extremely specific definition of “family member” in the law, the assailant’s identity could be strong identifying information of the victim.

The Boston Globe weighed in on the issue in an editorial the day the bill was signed into law. “There may be some victims of domestic abuse who would rather keep these details private, but the provision mainly serves the interests of accused batterers,” the Globe editorialist said.

The Globe argued that the provision provides “extra courtesies” to domestic abusers, and urged Gov. Patrick to send the bill back to the legislature for amendment.

New category

The law further created the new category of assault and battery on a family or household member, which carries a sentence of up to two and a half years in a house of correction. Subsequent convictions allow for up to five years in state prison.

“Family or household member” has its own definition. According to the law, two people are considered family or household members if they are, or were, married to each other, have a child in common, or have been in a “substantive dating or engagement relationship.”

The law provides language to help jurors determine whether two people have been in a substantive dating or engagement relationship, including the length of the relationship, the type of relationship, the frequency of interaction, and the amount of time that has elapsed since that relationship may have ended.

When an individual is arrested for a domestic assault, he or she is held for a six-hour period before bail is set. The intent is to allow a safety period for the victim to make arrangements while his or her partner or former partner cools off in jail. Victims are also guaranteed 15 days off from work, under the law, to grapple with the emotional, physical, and legal ramifications of the assault.

Strangulation and suffocation were made specific offenses subject to a prison sentence of up to five years, and up to 10 years for repeat offenders. An individual who strangles a pregnant woman or who is particularly harmful in his or her attack may also receive up to 10 years.

The law also strengthens the purview of district courts with respect to a charge of kidnapping, which could be levied if an abusive partner doesn’t let a victim leave the house, or locks him or her in a car.

Current data lags

Edgartown Police Department domestic violence liaison Officer Stephanie Immelt said that it’s difficult to tell whether the new law has changed the number of reported or prosecuted cases of domestic violence in Edgartown. The number of domestic violence reports the department records are based upon a number of factors, and may not be true indicators of change, she said.

Edgartown police responded to 67 domestic-related calls in 2015, 96 in 2014, and 29 in 2012, according to Ms. Immelt. She said numbers were not available for 2013.

The Massachusetts District Attorney Association (MDAA), an independent state agency that works to support district attorneys across the commonwealth, is required to report data to state lawmakers under the new law. The MDAA is tackling the lack of uniformity in recordkeeping.

In a report to the state legislature dated June 30, 2015, the MDAA noted in a cover letter that the data submitted for each county could not be compared with one another because “they differ significantly in how each defines, inputs, and reports its data, as well as when certain data is even tracked at all,” despite each county using the same case-management system.

The Governor’s Council to Address Sexual Assault and Domestic Violence was relaunched on April 27, 2015, to measure and monitor the implementation of the law. In December, the committee, chaired by Lieutenant Governor Karyn Polito, noted the inconsistencies in domestic violence reporting among counties in a report. They note that the MDAA has issued a request for proposals (RFP) for a new data-management system. That system will not be able to be implemented unless funds are secured for fiscal year 2017 (FY17).

Regardless, the numbers are high. The MDAA reported to state lawmakers that on the Cape and islands — Dukes County is not broken out — there were 317 charges of assault and battery on a household or family member between August 8, 2014 (the day the law was signed into effect), and May 31, 2015. There were 91 charges of strangulation or suffocation in that time period, and 416 charges of violating an abuse prevention order.

A separate count from the Cape and Islands DA’s office in the same timeframe, but including the entire month of August, reported 304 charges of domestic assault on a family member. Of those charges, 216 were dismissed because the victim failed to cooperate.

In nearby Bristol County, which includes New Bedford and Fall River, officials did not specify whether they reported total cases or charges to lawmakers. The district attorney reported 1,489 instances of assault and battery on a household or family member, 159 instances of strangulation or suffocation, and 537 violations of abuse prevention orders.

The report offers no analysis, but files the data with both the Massachusetts Senate and House of Representatives.

Tangible change

Attorney General Maura Healey was part of the group involved with the relaunch of the Governor’s Council. Asked why the law was a positive or necessary change, deputy press secretary for the attorney general’s office, Chloe Gotsis, responded in an email to The Times: “Domestic violence and sexual assault is an epidemic. That’s what we need to call it when every nine seconds, a woman is assaulted or beaten, making domestic violence the leading cause of injury to women in this country. It’s an epidemic when one in three women and one in five men in Massachusetts have experienced rape, physical violence, or stalking by an intimate partner. Our office will continue to work with the council and our partners in law enforcement to increase awareness [and] services, and address the root causes of violence.”

Despite changes to the law, the burden of evidence has not lightened. In many cases, prosecutors must rely on victim testimony to successfully pursue a case against those accused of domestic violence. Oftentimes, there is only one witness, and that is the the victim. If he or she chooses not to testify, or in the case of a married couple, invokes the spousal privilege that allows for married individuals to decline to testify against their spouses, there is no evidence to present in court.

Robert Moriarty, a defense lawyer with an office in Edgartown, said he has not seen much of a change with regard to prosecutions.

“I just don’t think that it has really made a dent in the success of prosecution of these people,” Mr. Moriarty said in a phone conversation with The Times.

Even if a victim is willing to testify against an assailant, his or her desire to testify can change over time. A long cooling-off period before trial can lead to an uncooperative witness who, perhaps, doesn’t want to see her significant other imprisoned.

If the couple is unmarried, the court may subpoena the victim and require that he or she testify. But, that doesn’t always mean a conviction will occur. Witnesses can be uncooperative or not show up in court, or alternatively, the defense can agree to a plea before any testimony is given. Plea bargains can result in softer sentencing, and, furthermore, eliminate the possibility of on-the-record testimony from a victim, something that could be used to convict a repeat offender.

“For most cases, you need someone to say, ‘He did this to me,” Mr. Moriarty said.