Massachusetts SJC

Decisions on Bail for Domestic Violence

Michael Sefton, Ph.D. Dangerousness assessment, Health Psychology, Human Behavior, Relationships , , , , ,

THERE IS MOVEMENT TOWARD VICTIM SAFETY IN CASES OF DV

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Michael Sefton (right) BDN photo

WESTBOROUGH, MA   Is there any coincidence that Democratic House Speaker Robert DeLeo has joined forces with Attorney General Martha Coakley to bring forth a new bill that will provide for stiffer bail conditions and tougher sanctions for repeat DV offenders?  This bill was brought forth just 2 weeks after the Massachusetts SJC ruled on the case of one abuser against whom a permanent restraining order has been in place for over 10 years.  In that ruling, a man against whom a protective order was written is seeking its dismissal under the broad assumption that he is no longer  a threat to the former girlfriend because he now lives 3000 miles away.  Not so fast said the Massachusetts SJC.

The Commonwealth’s highest court reviewed the historic data in the case record and made its decision based on the documented threat of violence the abuser posed and convictions for DV against more than one partner dating back to the 1990’s.  They voted against dismissing the permanent restraining order writing that victim safety is more important than the purported rights of abusive men.  In the SJC decision the limitations placed on the abuser based on having a “protective order” against him were the collateral consequence of the behavior they exhibited early on.  The abuser believed he was unfairly being prevented from owning a firearm and had limited opportunity to work with children because of the unfair restrictions placed on him by the permanent order of protection.  Furthermore, the SJC also acknowledged that the abuser must show “convincing evidence” that they have made substantive emotional and personality changes that render him no longer a threat to the estranged spouse.

The bill proposed by Speaker Rober DeLeo asks for tougher bail conditions most notably a 6 hour delay before an alleged abuser may be released from custody.  The highly publicized case of Jared Remy who was released from custody hours before be allegedly killed his live-in girlfriend served as a stimulus to the proposed change in the law.  An important consideration not mentioned in the proposed bill is that to do with subjects with known violence in their history and how best to protect victims from revenge abuse once the abuser is released from custody.  Presumably, the new bill affords potential victims the opportunity to put in place a safety plan and affords those making decisions about bail added training about the cycle of abuse, red flag predictors, and greater access to the history of violence of the person in custody.

Unfortunately, the bill does not go far enough in its current raw form to assure that victims of violence receive the needed protection once they decide to break away from dangerous and dysfunctional entanglements.  It is this time when abuse victims are at greatest risk of death due to domestic violence as in the case of Amy Lake, a victim of domestic violence homicide whose case was carefully studied in the Psychological Autopsy of the Dexter, Maine Domestic Violence Homicide (Allanach, 2011) that occurred in June 2011.  Maine has been reviewing bail conditions since this unique study made over 50 recommendations for reducing the incidence of domestic violence homicide in that state.   This report was presented to the Governor’s Domestic Violence Homicide Review Panel in November 2011.  Only recently was a domestic violence suspect held without bail for his history of felony assault and battery on his spouse and a prior domestic partner for over 20 years.  In that case, the abuser was arrested three times in one month for violating an active order of protection during which time he threatened to kill his estranged wife.

Red Flags and Bail Conditions

In Massachusetts, Speaker Robert DeLeo warns that red flags often foreshadow an abuser’s behavior giving clues as to the intentions and the proclivity toward violence.  These are facts that are well described in the literature on DVH.  It is suspected that perpetrators ostensibly inform others about their intentions and all to often, these individuals do nothing to stop the violence.   In a prior paper, I have argued that a domestic violence registry may be useful for keeping track of those who repeatedly abuse or batter their domestic partners.  This would be similar to the sex abuse registry that requires those adjudicated for sexual abuse of children must register whenever they move from place to place.  I have also written extensively on the need for containment of those at highest risk to offend including a pertinent history of physical violence e.g. choking coupled with threats of death, access to firearms, prior violation of an order of protection, the presence of more than one simultaneous protection order (multiple victims), and other forms of coercive control such as destroying personal mementos like favored Christmas ornaments and personal photographs.   A pattern of substance abuse further elevates the risk for domestic violence and DVH.

There are changes taking place in the way in which domestic violence is handled in many states here in the U.S.  Bail conditions are being reviewed with more stringent constraints being placed upon abusers including no bail containment of the most egregious and violent cases.  Further options like GPS monitoring and a domestic abuse registry are being considered in some jurisdictions.  Some experts are calling for added training for judges and greater access to DV history before making decisions about bail conditions.  Arguably, these examples will all add to greater victims security but do very little when emergency protection orders are issued by judges during the night.  Police are frequently asked to present information to an on-call judge in an effort to provide immediate protection following a suspected incident of DV.  This information is critical in conveying what risk exists to the victim or potential victims.  Many police agencies are using dangerous assessment tools to compile and enumerate the red flags that may be the harbinger of terminal rage and the end of one’s timeline somewhere.

Ronald Allanach et al., Psychological Autopsy of June 13, 2011, Dexter, Maine Domestic Violence Homicides and Suicide: Final Report 39 (Nov. 28, 2011), http://pinetreewatchdog.org/files/2011/12/Dexter-DVH-Psychological-Autopsy-Final-Report-112811-111.pdf.

Collateral consequences: Stay away orders that are forever

Michael Sefton, Ph.D. Human Behavior , , ,

WESTBOROUGH, MA  Protective orders are devised to keep victims of domestic violence safe and are valid and useful judicial tools to arrest perpetrators of DV who violate them. Some orders are vacated automatically if the facts of the case do not warrant the renewing of an order or if the victims does not wish to continue the protective order.  In the extreme, protective orders are put in place that do not expire because the perpetrator has exhibited such high risk behavior and the facts of the case bear out the necessity of such an order for the safety of victims.  These orders are not handed out without compelling evidence of repeated violent and coercive behavior toward victims and are subject to rigorous judicial and legal scrutiny.

Perpetrator wants 2001 order vacated

The Massachusetts Supreme Judicial Court has ruled that Kevin Caruso must submit “clear and convincing evidence” that he no longer poses a danger to former girlfriend in a case dating back to 2001.  The Supreme Judicial Court  in Massachusetts has required that Mr. Caruso provide proof that “he has ‘moved on’ from his history of domestic abuse and retaliation”.  Merely being in a new marriage is not sufficient to prove that he is no longer a threat to the former girlfriend.  In fact, it is well known that men move from one abusive relationship to another inflicting fear and terror with every passing day. In most cases, red flags litter the wake of repeated domestic violence with violent behavior including choking, threats with firearms, social media stalking, and other forms of sadistic, coercive control.  In this case, Mr. Caruso has been stopped from working with children because a permanent “stay away” protective order appears in his CORI – criminal record.  It has been an inconvenience because he is now prevented from owning firearms and has been subjected to searches when he pass through airports.  In the written opinion, SJC Justice Ralph W. Gants states “the only relevant issue is the safety of the plaintiff – not the passage of time” as published in the Boston Globe (3-14-2014).  The SJC called the frustration felt by Mr. Caruso the “collateral consequence” of the permanent restraining order put in place initially issued as a result of his threats to kill his former girlfriend.  According to Justice Gants, “the impact on the life of the alleged abuser is not a critical issue for the judges” and ultimately he must show “clear and convincing evidence that it is no longer equitable for the order to continue.

The Massachusetts Supreme Judicial Court has taken an important position in this decision to help protect victims of DV with the most egregious case histories.  Accordingly, distance alone and a new relationships are not conclusive documentation of “moving on” and as a result do not reduce the risk to victims.  In the decision the SJC rightfully protects the safety of the most vulnerable by requiring “persuasive evidence that the conduct of the abuser has had a significant change of circumstances” that results in the reduction of risk to the victim or victims.  Perhaps this is the first step toward a national data base of domestic violence offenders similar to the sexual abuse registry.  Substantive decisions about bail or no bail holds will be more reliable by having access to the violent history of domestic violence offenders and the protective orders that have been issued time and time again.