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Tuesday, October 11, 2011

Judge's Ruling On Domestic Violence Draws Concern

NEWARK, N.J. -- Women's rights groups and the state Attorney General's Office are preparing to challenge a judge's ruling that determined it's too easy to get a restraining order in New Jersey.

The decision is not binding on any other state judge and appears headed for an ultimate ruling by the New Jersey Supreme Court. That showdown could be many months away, and the outcome could have broad impact.

Although the numbers have declined over the past five years, about 40,000 domestic violence complaints are filed annually in New Jersey. From those, roughly 30,000 temporary restraining orders are issued, with most of the rest withdrawn by the accuser. Nearly 80 percent of the complaints are filed by women.

The recent ruling by a Hudson County judge, however, threatens to make it more difficult for victims to prove they have been beaten or threatened and could scuttle the state's Prevention of Domestic Violence Act.

State Superior Court Judge Francis B. Schultz found that some elements of the 17-year-old law are unconstitutional. Among them: a low threshold of evidence -- just a "preponderance" -- to get a restraining order violates due process protections. Instead, judges need "clear and convincing" evidence to issue a restraining order, Schultz said.

Schultz also found the law violated the New Jersey Constitution's separation of powers mandate because the Legislature usurped the state Supreme Court's role by dictating court procedures, including what to consider in setting bail.

"If it's allowed to stand, it certainly would be a significant problem for victims of domestic violence," said Sandy Clark, associate director of the New Jersey Coalition for Battered Women.

"They are typically the only witnesses to the abuse. So to have to show by clear and convincing standard would certainly be challenging," Clark said.

She considers New Jersey's law among the best in the country, since it provides restraining orders of indefinite length, along with mandatory training for police and judges. Other states have tougher standards to obtain restraining orders, she said.

Prosecutors are also alarmed at what would happen if the ruling stands.

"You're going to have a chilling effect. That's the bottom line," said Deputy Chief Assistant Essex County Prosecutor Debra Cannella, who led the office's domestic violence unit for 11 years.

"We're very concerned about this because elevating the standard of proof will make it more difficult for victims of domestic violence who desperately need relief," Cannella said. "The next time that victim is assaulted, they may not come back to court because there were rebuffed."

On the other side of the debate are groups that include fathers who maintain the domestic violence law has been unfairly used against them in divorce proceedings.

Michael Argen, president of the New Jersey Council for Children's Rights, said that a parent will not get custody of children once a restraining order is issued.

"If this ruling continues, it would help truly battered people more, because it would limit the resources that are being used on truly frivolous cases," Argen said.

About 1.3 million women and 835,000 men nationwide are physically assaulted by an intimate partner each year, according to a U.S. Justice Department study published in 2000.

In New Jersey, about 9,000 people bring criminal charges each year that a restraining order has been violated, sometimes with tragic results.

For example, prosecutors in Essex County have charged Kenneth Duckett with murdering his estranged wife, Monica Paul, by shooting her to death in front of one of their children at the Montclair YMCA on June 26. The couple had separated in August, and Paul obtained a temporary restraining order in October. It was made final later that month, according to prosecutors.

Bruce Eden, civil rights director for the state chapter of Dads Against Discrimination, contended that such cases are rare, and that a majority of domestic violence complaints involve no physical contact. Complaints can be filed for making threats.

He applauded Schultz' decision. "This will make it more difficult for false allegations," Eden said.

Although the domestic violence law had been upheld on several occasions since its enactment, Schultz, who sits in Jersey City, decided that the constitutional issues raised by a divorced husband, Anibal Crespo, merited examination.

Anibal and Vivian Crespo divorced in 2001 after about 17 years of marriage, but lived in the same two-family home in North Bergen: She was on the first floor with the children; he was on the second floor with his parents.

In 2004, Vivian Crespo obtained a final restraining order from a different judge after claiming that her former husband hit her face and pulled her arms when she sought the child support money. Anibal Crespo responded that his ex-wife attacked him while he was in his car and any injury she suffered came when he closed the car window to protect himself. As a result of the restraining order, Anibal Crespo had to move.

Schultz vacated the final restraining order but kept its conditions in place pending a hearing at which the original judge is to decide whether to restore the restraint. Schultz left it for that judge to determine whether to use the preponderance standard or the "clear and convincing" threshold of evidence.

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"Political reasons have not the requisite certainty to afford juridical interpretation. They are different in different men. They are different in the same men at different times. And when a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under a government of individual men, who for the time being have the power to declare what the Constitution is, according to their own views of that it ought to mean." Dred Scott v.Sanford, 19 How. 393, 620 (1857) (Curtis, J., dissenting).

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