Tuesday, March 10, 2009

Luiz Simmons’ Abuser Expungement Bill (Updated)

Delegate Luiz Simmons (D-17), who is a trial attorney, has introduced a bill enabling accused domestic abusers to expunge their court records. No, folks, we are not making this up.

Md. General Assembly owes victims of domestic violence better protection
Thursday, March 4, 2010

MARYLAND once again has the chance to do what every other state in the country does in affording protections to victims of domestic abuse. A proposal that would relax the rigid standards for obtaining protective orders is being debated in the General Assembly. Unfortunately, its prospects are not good. We hope, though, that lawmakers wake up to the reality that their refusal to put in place common-sense safeguards endangers lives and makes Maryland a national disgrace.

The House and Senate are considering bills that would change the standard of proof needed to grant a final protective order. The bills, H.B. 700 by Del. C. Sue Hecht (D-Frederick) and S.B. 823 by Sen. Jennie M. Forehand (D-Montgomery), would replace the current standard of "clear and convincing evidence" to a "preponderance of the evidence." Maryland is the only state that uses this higher standard when victims -- and generally they are women -- seek orders to protect themselves from their alleged abusers. In all other civil matters, Maryland courts require only a preponderance of evidence.

Contrary to the fears of some opponents, this would not open up the floodgates to capricious decisions based on false charges. Judges would still be able to judge the credibility of any claim, but they would have more discretion in reaching a decision. Instead of being bound by there being no doubt about a petitioner being in danger, the court would be able to use the more reasonable standard of there being a good chance of danger.

We can't help but wonder what the outcome might have been had this standard been available to the judge who denied the request for a protective order from Amy Castillo. Ms. Castillo's three children were drowned by a father whose threats about killing the children were deemed insufficient for a protective order. Ms. Castillo evoked her tragedy last month as she testified for easier access to protective orders before the House Judiciary Committee, a body notoriously hostile to this and other reforms sought by advocates for victims of domestic violence.

The committee has scuttled similar bills in previous years, and judging by the reception it gave Ms. Castillo, chances don't seem much improved this year. What else to make of the argument that no problem exists because only (their emphasis) 14 percent of protective orders are denied because the standard of proof isn't met? That's not much of a consolation for Ms. Castillo or the others who make up that 14 percent. As Ms. Castillo told the committee: "When you're in fear of your life and for your children, and you make that move to step out and do something about it, and then you go to get a protective order, and you don't get it, it's just really devastating. . . . It's like a discouragement to make a change in your life that needs to be made."