New law takes aim at domestic violence

 

Give more power to prosecutors, new strangulation penalty, names kept out of police log

Greenfield Recorder 08/15/2014, Page A01

By KATHLEEN McKIERNAN Recorder Staff

GREENFIELD — Last year, 420 people were arraigned in Greenfield or Orange district courts on domestic violence charges. Of those cases, 239, or 57 percent, resulted in guilty pleas or a “guilty finding warranted” outcome.

Each year, an average 1,100 victims of domestic violence seek help through the crisis hotline at NELCWIT, the local domestic violence shelter and advocacy agency.

Legislation — passed overwhelmingly by the House and Senate and signed into law by the governor this month — aims to tackle this problem by toughening the domestic violence laws.

“This is a strong and forward looking bill. It protects victims and holds offenders accountable,” Northwestern District Attorney David Sullivan said. But it also initially shields police records of reported abuse and the names of alleged abusers from the public.

Sullivan, who as a member of the Massachusetts District Attorney’s Association worked alongside advocacy groups and legislators on the law, said it “puts teeth into our statutes.”

The district attorney’s office will begin working with local police this fall to train and implement the law.

After domestic violence advocates pushed for the changes for years, the bill quickly became law days after it was introduced and approved by the House and Senate. It passed the House on a 152-0 vote. The Senate approved the bill on a voice vote without a roll call.

While its passage was quick, the law was not without its critics. As domestic violence advocates lauded the law, it was also harshly criticized by First Amendment advocates for one provision that would keep accusers’ names out of police logs.

The new law came as a result of the high-profile Jared Remy case, in which the wellknown son of Boston Red Sox broadcaster Jerry Remy had killed his girlfriend Jennifer Martel, after a long history of abuse.

“We’ve seen a pattern over time with domestic violence that is modest at the beginning, but eventually over time, some of these incidents get worse and worse until some of them turn into homicides,” said state Sen. Stanley C. Rosenberg, D-Amherst, who supported the bill. “This tightens a lot of things up. It creates some new crimes.”

“We are too often reminded of the unacceptable high rates of domestic violence in our communities,” said state Rep. Denise Andrews, D-Orange. “This legislation is important because it provides additional tools to advocates, to law enforcement, and to the courts, enabling better enforcement of existing laws. There is much in this bill that advocates have sought for some time.”

The law makes several changes.

Foremost, it establishes a first-offense domestic assault and battery charge. Under current law, there are penalties for subsequent offenses but it fails to mention first offense. In the past, first offenses would be classified as assault and battery, which would not necessarily give victims access to appropriate services, said Ilana Gerjuoy, the director of Crisis and Advocacy at NELCWIT in Greenfield.

To protect victims against retaliation for calling police, the new law delays bail for the accused by six hours to provide the victim time to arrange for safety. It also outlines new training and reporting requirements for law enforcement, prosecutors and court personnel.

The law also creates a specific felony charge of strangulation and suffocation and establishes a penalty of up to five years in state prison, up to 2½ years in a house of correction, by a fine of up to $5,000 or by both a fine and imprisonment.

Advocates said strangulation is an indication that an abuser is more likely to commit domestic violence-related homicide in the future.

The law abolishes the practice of allowing “accord and satisfaction,” in domestic assault cases, a practice in which parties agree to a private financial settlement. The legislation, instead, leaves it up to the prosecutor to decide if a financial settlement or other private agreement is in the best interest of the victim.

In Greenfield District Court, an average of 44 cases, or 16 percent, last year were dismissed through accord and satisfaction. In Orange, 136, or 13 percent, of cases were dismissed.

“What can happen sometimes is a victim can be coerced into an accord and satisfaction, which has been a concern,” Gerjuoy said. “The (change) sends the message that domestic violence is a serious crime. It’s not a private thing that can be mediated between two people. It also means we can get victims and survivors the help they need.”

“It helps the prosecution do what is in the best interest of the public and victim to make the offender be held accountable,” Sullivan said.

Public right to know

A controversial provision of the law clashes with the public’s right to know, First Amendment advocatesargue. The law seals police reports in domestic violence cases from the public and keeps the identity of alleged abusers and victims off the record until the accuser is arraigned in court, one or more days after the arrest. Any information concerning police responses to reports and any arrest of a person for assault, assault and battery or violation of a restraining order where the victim is a family or household member is now exempt from public view and is now kept in a separate police log that is not public record.

The new law does not affect public access to court records in abuse cases, according to the District Attorney’s office.

“If a police report is filed with the court in conjunction with an application for a criminal complaint, and the court issues a complaint based on that report after a finding of probable cause, the police report becomes a court record, and thus a public record, as in any other case — unless a motion to impound the report from the public was allowed by the Court,” said Jennifer Suhl, Chief of the Domestic Violence and Adult Sexual Assault at the District Attorney’s office.

While proponents argued the secrecy encourages victims to report cases to police without fear of embarrassment, opponents argued it protects perpetrators who in some cases may be public officials.

“I think this is a serious restriction on the public’s right to know,” said Robert Ambrogi, executive director of the Massachusetts Newspaper Publishers Association. “Police logs are extremely important and play an important role in keeping the public informed on the activities going on in their community.”

“There can be individuals in the community who hold a position of public trust. People won’t know if these charges aren’t brought to light,” Ambrogi said.

Ambrogi said he has not been able to find another state that has blocked such information from policelogs. Proponents contend that the provision is only a delay in making the information public.

“We see survivors who didn’t want to call police because they knew it would be in the police log the next day,” Gerjuoy said. “It is their partner’s name and same address. It’s not anonymous. A lot of people are afraidto call for that reason.”

While Sullivan said he understands the concerns of First Amendment advocates and supports a free and open press, the change in police logs, he said, is a positive step for victims.

“At the arraignment, the information will be available. It creates a delay to find a safety plan for the victim.”

Like its parent group, Jane Doe Inc., NELCWIT did not take a position on the police log provision.

“We could see both perspectives. What we do hear from victims is that knowing their partners’ name will be in the log the next day deters them from reporting,” Gerjuoy said. “They’re really worried that the offender will get more angry and more violent towards them if their names are in the police log or newspaper immediately. We hear the victims.”

“I think the idea is to make it as easy as possible for a victim of domestic violence to come forward without fearing they’ll be under intense public scrutiny,” said Rep. Paul Mark, who represent s western and northern parts of Franklin County. “I think it’s always a tough call when trying to balance the right of the public and press to have access to information while also maintaining public safety at the forefront. But I think this bill finds that balance. Once someone is arraigned, the record will be unsealed and names will be
released to the public.”

“If someone comes forward to police and two weeks go by, at that point, (the victim) will be prepared for their name to appear in public and would have talked to support groups and feel more comfortable moving ahead.”

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