A troubling story

[ShadowHM]

I saw this article today in the New York Times.

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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.

[Roland]

...I hope the court upholds the ruling. The woman got what she deserved. Period.

And I speak as someone who grew up in a domestic abuse environment, against my mother, and myself. I am, in no way, shape, of form, implying that the woman "got what she deserved" in terms of abuse. That is never true, ever, as far as I am concerned (self-defense is another matter entirely; the abuse, be it physical, mental, or emotional, of ANYONE is wrong, man or woman; I may hold to the old chivalries of never hitting a woman, but I also hold to the common sense values of equality). However, she DID get what she deserved insofar as aiding in the violation of a restraining order. She invited him, and he accpeted. They are both guilty, IMO, as neither should have allowed it to happen. Her invitation in itself automatically, IMO, invalidates the restraining order for that period. His acceptance is breaking the law in regards to that restraining order.

Thus, try and fry them both. They ARE adults. And that idiotic argument about "Women in abusive relationships are not always in a position where they're going to act in their own best interest" is pure hogwash. Plain and simple. If someone told that to me, I would laugh in their face. I would laugh hard, until my face turned blue and they had to cart me away to the hospital for oxygen depletion. That is the most idiotic argument I have ever heard. It is true that anyone, not just women, in an abusive relationship tend to not always think properly, and thus tend to keep themselves in harms way instead of pulling themselves out of it, but that's no excuse. You're an adult. That you can't ACT like one is no excuse for you not to be TREATED like one. You're not mentally handicapped. You're just plain foolish. Grow up, and live with your choices.

It's one thing to not leave an abusive relationship when he's got a gun on you. It's another when you bail him out of jail for beating your face in. I'm sorry, but I hold NO pity for the latter. If you invite the devil into your home, you forfeit your right to complain about him prodding you with his pitchfork.

[--Pete]

Hi,

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 is not clear to me if the protective order was at the request of Ms. Lucas or if the court acted on its own authority. In either case, "the Licking County Municipal Court, in Newark, Ohio, ruled that the protective order had been violated — by Betty Lucas." is a valid and true statement from the facts given. If the protective order had not been requested by Ms. Lucas, then there would be some small justification since the court would be interfering in the freedom of these two people.

However, I do not know if a protective order can be entered without the request of the person being protected. So, I would suspect that the order had been requested by Ms. Lucas. In which case, I have to agree with both the decision and the relative severity of the punishment. The police, the court system, the social workers can *help* in a situation like this, but they cannot do it for us. The ultimate responsibility for a first line of defense is ourselves.

Yes, spousal abuse is a severe problem. However, it is usually a problem *shared* between the two people except in extreme cases where the abused is being physically held captive (in which case I believe that an additional crime, or more, is being committed). If the person being abused does nothing to avoid the abuser, indeed actively seeks the company of the abuser, there is nothing that can be done to prevent the abuse, just to punish it. Being granted a protective order is not a license for foolish behavior, is not an abrogation of personal responsibilities. Indeed, it *increases* those responsibilities, since, having asked society to aid with a problem, in honesty and fairness one should do whatever one can to make society's burden as light as possible.

Of course, "They started drinking" strongly influenced my attitude. I'm sure that they were serving cocktails at their child's birthday party. Right. When in the company of a violent person who has attacked you in the past, is most intelligent thing to do to share some booze with him? IMHO, they should add a year in jail for stupidity. Unfortunately, they still haven't made that a crime.

"God helps those who help themselves". Why should society do more?

--Pete

[goldfish]

IMHO, they should add a year in jail for stupidity.  Unfortunately, they still haven't made that a crime.

Nope. In fact, last time I checked, it was still part of the platform of both major political parties. :P

"Liberté . . . egalité . . . stupidité!"

[Striker]

Of course, "They started drinking" strongly influenced my attitude.  I'm sure that they were serving cocktails at their child's birthday party.  Right.  When in the company of a violent person who has attacked you in the past, is most intelligent thing to do to share some booze with him?  IMHO, they should add a year in jail for stupidity.  Unfortunately, they still haven't made that a crime.

I remember some parties that I went to as a kid where the parents would chit-chat while having a beer or two, but they never got close to the point where tempers would flare up and fights break out. Common sense seemed to be severely lacking at this party.

I'm just wondering where the other parents were when this happened? I would think that someone else knows about the history between these two and would try to keep things somewhat civil.

[Kasreyn]

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.

I agree that prosecuting her was misguided. The onus is on Mr. Lucas to not come near Ms. Lucas. There is nothing that says she can't make an invitation he cannot legally accept.

"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."

Maybe this is just a pet peeve of mine, but have you ever noticed how the first words out of anyone's mouth when anything calls any sort of women's rights into question, is how it might have an effect on "reproductive choice"? I wish certain people would just lay off the abortion issues. You won, dammit, it's legal. Why do you have to bring it up constantly? I wish they'd just let me avoid thinking about it one in a while.

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.

If she struck the first blow, or if she continued to attack him after he was sufficiently subdued to no longer pose a threat (if he struck first), then yes, it's appropriate that she was convicted. But in my opinion if she was rightly convicted, her sentence was a bit light, though I'm sure considerations of who would care for the children weighed in.

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

This part is screwy. A hundred bucks is a sneeze to some guys. What would prevent them from constantly stalking their ex-punching-bags? "Oh no", one can imagine SUV-Driving Ex-Batterer saying, "Not 100 bucks! I spend more than that on my wine with dinner." I say a stiffer fine, or jail time. Of course, one could make the argument that in this case he was provoked, but still...

"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."

Agreed. Under the law, if someone asks me to shoot them in the eye and I do, it's still murder and I can still be convicted of it. Though personally I disagree on that one...

...adding that the victims of domestic violence could not always be trusted to make the right decisions...

O.o

"Yep, them poor little cupcakes cain't always think so well onct you pop 'em a few times, bless their sweet lil black-and-blue hearts." Maybe I'm being a bit extreme there, but do I sense condescencion from that guy?

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

You know those judges. It's always some silly thing, like wanting to treat grown-ups like grown-ups.

Through her lawyer, Ms. Lucas declined a request for an interview.

I'm not surprised. I wonder if her friends will ever let her live this down.

"The city showed a certain degree of impatience with the victim in this case,"

...

"If they come down to break up another fight a week after they cuffed a guy and dragged him out of there,"

...then IMHO the cops have the right to feel frustrated and treat her like a mental defective. My sympathy here is for the cops who try hard to protect these women and then watch them run right back to their abusers, sometimes to their deaths. It must be very hard, as a cop, to just have to sit and watch, not having been requested to interfere so you can't. Not until it's time to haul Mr. Happyfists off to jail for finally killing the poor woman. I bet they just love that part. =\

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 suppose that might be possible, but entrapment only works because *gasp* the person breaks the law! Yeah, someone else incited them to, but the person still broke the law. They may have done it from their own motives or because they were told. Is it the legal system's job to determine motive? No, motive merely helps catch suspects. The legal system is supposed to determine *guilt*.

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?"

Well, if you're a nitwit, you'll sacrifice your principles to leech food off the guy who used to beat you, and possibly get beaten again.

If you have a brain, you'll think to yourself, "My kids will wind up even hungrier if this happens to be the night he beats me to death. I'm going to tell him to stay the hell away, and I'm going to go apply for food stamps tomorrow."

There is no reason to rely on wife-beaters for food. We have perfectly good social programs in this country to help feed hungry kids. If a woman lets her ex-abuser come over, it's not for the groceries, it's because apparently she feels she hasn't had enough pain yet.

-Kasreyn

[Jester]

There's no way setting the precedent of "I can call you over, then get you arrested" can be allowed to stand. As pointed out, it's entrapment. Seeing the kind of emotional situations these things usually arise from, that would quickly become the modus operandi for all sorts of vengeful, manipulative people.

Now, of course, I would always support anything that helps people from these situations get on their feet and stay there. If we cut of their (abusive) line of support, we have an obligation to replace it with something, or else they may be forced by circumstance to return.

Prosecuting for violating your own restraining order only makes sense if there is no good reason for doing so. While personal responsibility is ideal, it's society's job, having intervened, to ensure that there is no such reason.

Unless, of course, the reasons are personal or frivolous. Then there's just nothing to be done, and prosecution is a matter of course.

Jester

[Vandiablo]

My suggestion is to henceforth put on all restraining orders a paragraph which specifies that the protectee encouraging or forcing the restrainee to violate the order is also illegal.

And then only enforce it when it's obviously been violated (don't just take the restrainee's word for it).

It seems like for birthday parties of children or other similar events (weddings, graduations, etc.) that both parties could agree to hire an off-duty police officer to attend also. It would be an expense, sure, but cheaper than lawyers.

-V

(dont jump on me if this is stupid, i'm real tired...)

[Occhidiangela]

You are killing me, making me laugh so hard. :D Geeze, Van, how do you do that to me? I spilled my coffee.

Your suggestion about hiring an off duty cop, at their expense, which would indeed be cheaper than lawyers, makes infinite sense. Well, if either of the two nitwits in question had any sense in the first place, we'd have never had an article to read as they'd have figured it out themselves.

Common sense is simply not common enough, as we all know.

*Back to the grindstone I go*

[Rhydderch Hael]

...I suppose that might be possible, but entrapment only works because *gasp* the person breaks the law!  Yeah, someone else incited them to, but the person still broke the law.  They may have done it from their own motives or because they were told.  Is it the legal system's job to determine motive?  No, motive merely helps catch suspects.  The legal system is supposed to determine *guilt*.

That's a bad outlook on the issue of entrapment.

Entrapment occurs when the prosecuting party instigates the crime in the hopes that the defendant will be enticed to join in. You cannot create a crime for the purpose of apprehending to prosecute your accomplices—not while bearing any form of immunity from the crime yourself. It's why undercover cops cannot propose or suggest crimes, but rather wait and bait the other party to broach the idea first.