Prosecuting domestic violence cases can be challenging

SOURCE: ELLSWORTH AMERICAN – Many victims of domestic violence say it took a lot of courage to finally call authorities. But the path from initial call to possible conviction is fraught with obstacles.

An analysis of The Ellsworth American’s records showed 102 people booked into the Hancock County Jail on charges of domestic violence assault in 2017.

Of the cases for which The American was able to find sentencing records, the domestic violence charges were dismissed in 62 percent of them. Many were pleaded down to charges of disorderly conduct.

Those who were sentenced on domestic violence charges generally had prior domestic assault convictions or had threatened their partner with a dangerous weapon.

Why all of the plea deals? Part of it is that domestic violence cases can be particularly hard to prosecute, said District Attorney Matt Foster.

“It’s a very slow process, and it’s frustrating not only for victims of domestic violence but for victims of property crimes and other types of crimes.”

“I would say 70 percent of the time you get cases where you have people who either there’s some type of substance involved… And everybody feels bad about it the next day, they just decide, we don’t want to press charges.”

He continued: “Usually our only evidence is what the two people say and one of them, who is the defendant, usually doesn’t say anything or has denied it already.”

Foster also noted that victims may also be dependent upon their abusers, financially and emotionally.

“They start thinking the next day ‘Well, geez, I’m a stay-at-home mom, I don’t have the income of the other person, what am I going to do? I don’t have the resources.’ So, then they come in and they recant their statement.”

Once there are conflicting statements on the record, a case can fall apart, Foster said.

“Our standard of proof is beyond reasonable doubt, and that’s reasonable doubt right there.”

High caseloads mean prosecutors are often as eager as defense attorneys to enter a plea deal and keep cases out of the courts as often as possible.

Prosecutors in Hancock County handle an average of 400 cases at a time, said Foster. “We try to get people to resolve their cases as early as possible in the process — hopefully at arraignment with reasonable offers — just because if we tried to get maximum at every case, we’d never get anything done.”

Foster said he likes the idea of having cases handled by a separate, dedicated court system, one that would be well-versed in the tricky nature of domestic violence.

“I think that those cases would move much more quickly and be easier to address. Of course,” said Foster, sighing, “We would need to have more resources in terms of judges and prosecutors and services and things like that that we don’t have right now.”

Defense attorneys are also eager to get their clients lesser charges, not only because that’s their job, but because a domestic violence conviction comes with a lot of restrictions, Foster said.

“There’s a lot of collateral consequences. If you’re convicted of domestic violence, you’re no longer permitted to own a firearm. There’s a lot of services that you can’t get.”

Whether an alleged abuser has access to firearms is of critical concern to victims in many domestic violence cases.

“Guns are always just a tricky thing to talk about,” said Dorathy Martel, executive director of The Next Step Domestic Violence Project. Alleged abusers who are the subject of a protection from abuse order aren’t allowed to have guns, said Martel, but where those guns go is another matter.

“The guns may be taken, but they need to be put someplace where they can’t be accessed. So, if they get put in your cousin’s basement and you have access to your cousin’s basement, that’s not a solution.”

In the case of Rebekah Smith, whose ex-husband was arrested on domestic violence charges in July of 2017, police kept the loaded gun they found at the scene of the assault until after the man’s final hearing in 2018, when he was ultimately convicted on charges of disorderly conduct. Records show the gun was returned to him on the day of his sentencing.

Smith had been granted a protection from abuse order, but it was in Vermont, where Maine police don’t have jurisdiction. Her ex’s parents came to get the guns he stored at her house, but Smith said she was not sure what happened to them beyond that, nor does she know what happened to the gun that was returned to him after the hearing in Ellsworth.

Gaps in firearms relinquishment are not uncommon.

“Interagency law enforcement coordination around firearms relinquishment in response to a civil protection order is a definite, observed gap in the safety net for survivors,” said Andrea Mancuso, an attorney who works with the Maine Coalition to End Domestic Violence, in an email.

“To my knowledge, there are no interstate protocols in place to ensure relinquishment happens across state lines,” she added.

Even within Maine, police would need a search warrant to enter an abuser’s home and confiscate firearms, said Mancuso, something that happens “very rarely.”

“In my experience, a search warrant will usually only be issued after a victim/survivor reports non-compliance to law enforcement with very specific facts to support that report of non-compliance. The law enforcement agency then takes that information to a prosecutor with a request for a warrant.”

The state is working on ways to “enhance firearms relinquishment” when abusers are the subject of a protection order issued in Maine, said Mancuso, with proposals that would allow the judge who issues a protection order to direct a law enforcement agency to coordinate the relinquishment of firearms and would also require that agency to report back to the court about the status of the guns within a certain time frame.

“We are very encouraged by the commitment various leaders in our state government are demonstrating to closing some of these compliance gaps for survivors,” said Mancuso.