A troubling story

[ShadowHM]

I saw this article today in the New York Times.

--------------------------------------------------------------------------------

May 30, 2003
Ohio Case Considers Whether Abuse Victim Can Violate Own Protective Order
By ADAM LIPTAK


he trouble began two years ago, when Betty S. Lucas invited her ex-husband, Joseph, to a birthday party for one of their children. They started drinking and then fighting, and soon they were explaining themselves to the police.

The fighting was nothing new. Mr. Lucas had been convicted on a domestic violence charge the year before, and a court had entered a protective order for Ms. Lucas's safety. It prohibited Mr. Lucas from having any contact with her.

And so, a few months after the birthday party, the Licking County Municipal Court, in Newark, Ohio, ruled that the protective order had been violated — by Betty Lucas. An appeals court in Canton affirmed that decision last year, holding that Ms. Lucas had "recklessly exposed herself to the offender from whom she has sought protection."

The Ohio Supreme Court is now considering the case, and some people who work to help the victims of domestic violence are nervous.

"This would have an absolute chilling effect on domestic violence victims going to the police and going to prosecutors," said Alexandria M. Ruden, a Cleveland lawyer who filed a supporting brief in the Lucas case for three groups that help the victims of domestic violence.

The appeals court decision broke new ground, said Cheryl Hanna, an expert in domestic violence law who teaches at Vermont Law School.

"This is the first case," Professor Hanna said, "in which a court has held that it's allowable for the state to charge a woman with aiding and abetting her abuser in violating a restraining order."

Professor Hanna said the appeals court's decision reflected a larger debate about how best to keep the victims of domestic violence safe from their abusers.

On the one hand, she said, the criminal prosecution of Ms. Lucas was misguided and potentially counterproductive. On the other, she continued, the concerns animating the prosecution were appropriate.

"We have to be careful not to treat women who are abused as children who are not responsible for their actions," she said. "Once you start treating women as irresponsible and unable to take care of themselves in the domestic violence context, you risk women losing their rights in a whole host of other areas as well, like reproductive choice and workplace matters."

Ms. Lucas pleaded guilty to domestic violence in the wake of the fight with her husband and was sentenced to 90 days in jail. Her lawyer, Andrew T. Sanderson, called the sentence appropriate.

"It was very much of a mutual combat situation," he said. "It resulted in Ms. Lucas kicking his butt."

But Mr. Sanderson took issue with the separate prosecution of Ms. Lucas for violation of the protective order. She pleaded no contest to that, and was sentenced to another 90 days in jail.

Both jail sentences were suspended, and Ms. Lucas was sentenced to two years' probation.

For his part, Mr. Lucas was prosecuted only for violating the protective order. He also pleaded no contest and was fined $100.

Elena V. Tuhy, an assistant law director in Newark, Ohio, who prosecuted Ms. Lucas, said she had no good explanation for why Ms. Lucas got a stiffer sentence for aiding in the violation of the protective order than Mr. Lucas did for violating it.

"Different judge," she suggested.

Wendy J. Murphy, a visiting scholar at Harvard Law School, said only Mr. Lucas should have been prosecuted.

"He's a grown-up," Ms. Murphy said. "He knows the law. He's no more empowered to violate the protective order because she invited him than he is empowered to kill someone."

Mr. Sanderson agreed, adding that the victims of domestic violence could not always be trusted to make the right decisions and should not be penalized for making the wrong ones.

"Women in abusive relationships are not always in a position where they're going to act in their own best interest," he said. "The analogy I continually draw is between girls who get involved with older men. We don't prosecute them for aiding and abetting in statutory rape, no matter how worldly and solicitous they may be."

Mr. Sanderson acknowledged that his argument relied on stereotypes. When the Ohio Supreme Court heard the case in March, he said, "some justices took exception to my argument based on that."

"Their point of view," he said, "was that these are grown-up people who should be able to make these decisions on their own."

Through her lawyer, Ms. Lucas declined a request for an interview. Mr. Lucas could not be located.

Ms. Tuhy, the prosecutor, said the case demonstrated a commitment to the safety of the victims of domestic violence.

"We believe very strongly in the protective order," she said. "We believe so strongly in it that we don't believe anyone should violate or encourage or help anyone to violate it."

The appeals court's decision in the Lucas case is at odds with a decision in 2000 in a similar case by a different Ohio appellate court, in Cleveland.

In that case, a woman with a protective order against her husband called the police in on occasion though she often willingly stayed in his company. Finally, the police saw the pair in a car together and arrested the woman for complicity in violating the protective order.

The Cleveland court held that such protective orders are meant to benefit rather than harm victims of domestic violence.

"The city showed a certain degree of impatience with the victim in this case," Judge Patricia Ann Blackmon then wrote, "and the arresting officer attempted to make the victim responsible for the offender's behavior."

Bryan P. O'Malley, an assistant law director in North Olmsted, Ohio, was the prosecutor in that case. He said it was indeed the result of the frustration felt by the police there.

"If they come down to break up another fight a week after they cuffed a guy and dragged him out of there," Mr. O'Malley said, referring to the police, "that's the circumstance in which they might charge her with complicity for inviting him over again."

Brian M. Fallon, a Cleveland lawyer who represented the defendant in that case, said the entire area of protective orders was a tricky one.

Mr. Fallon described the prosecution by using an analogy to bring the victim of a statutory rape before a court.

"For the flip side of this," he said, "we're kind of treating women like chattel."

Mr. Fallon added that making women immune from such prosecutions could allow them to entrap their former partners by inviting them over and then calling the police.

"I've seen it abused," he said.

Nancy Neylon, the executive director of the Ohio Domestic Violence Network in Columbus, said that should the Ohio Supreme Court uphold the lower court ruling in the Lucas case, it would require abuse counselors to give their clients warnings of legal ramifications of seeking protective orders.

"The practical effect is almost overwhelming me," she said.

Ms. Neylon added that abstract legal principles must be tempered by attention to the messy realities of life itself, filled as it is with second thoughts, children's birthday parties and, sometimes, one beer too many.

"Stuff happens," she said. "You can have a protective order, but if your kids are hungry and he says he's going to stop by with a couple of bags of groceries, what are you going to do?"


Copyright 2003 The New York Times Company |

I am troubled by this case, mainly because I find myself in agreement with Professor Hanna.

For example, the last question has an easy answer for me. You tell him to send it over by cab, by a mutual friend, by anybody else other than him.

Failing to prosecute the woman in this case would imply that the woman in question has diminished responsibility for her actions; indeed it would foster the notion that women in general have diminished responsibility.