Boston Globe

Sunday, September 12, 1999

Due process and protection

By Eileen McNamara, Globe Columnist, 09/12/99

For the record, the Massachusetts Supreme Judicial Court has already upheld the constitutionality of a state law that provides women some small measure of protection from violent partners.

There is nothing new in the charge leveled last week that Chapter 209A of the Massachusetts General Laws is a perversion of justice, a tool in the hands of vengeful wives scheming to gain advantage over innocent men in divorce and custody cases.

That red herring is as old as the Abuse Prevention Act itself. It got new life last week when six men calling themselves the Fatherhood Coalition filed suit in federal court, charging that a 21-year-old law enacted to protect vulnerable women discriminates against beleaguered men.

The SJC four years ago reviewed and rejected a similar argument by Richard W. Frizado of Fall River. Frizado contended that the issuance of emergency restraining orders in domestic violence cases violates men's rights under the due process clause of the state constitution.

To the contrary, the high court said, the burden is on the complainant to establish, under penalty of perjury, the need for an emergency court order to keep an abusive partner at bay. Such an order is only temporary; a defendant is entitled to a full hearing on the merits within 10 days, at which time a judge may vacate the order or extend it for a year.

Where, exactly, is the alleged denial of due process?

''The Legislature devised a procedure that is intended to be expeditious and as comfortable as it reasonably can be for a lay person to pursue,'' the high court held. ''Judges often must deal with large numbers of these emotional matters in busy court sessions. The process must be a practical one. The general pattern to be followed in G.L. c. 209A proceedings is both fair and reasonably clear. Whether a defendant's constitutional rights have been violated will depend on the fairness of a particular proceeding.''

Can these plaintiffs find particular incidents of unfairness, of misapplication of the law, of spiteful women making false charges of abuse? No doubt. There has been no statute yet devised that cannot be misused. But the assertion by the Fatherhood Coalition that women routinely use the Abuse Prevention Act to lock innocent men out of their homes and away from their children for as long as a year without a hearing is nonsense.

If the perversion of the law were as blatant and widespread as alleged, the profile of a typical defendant in these cases would look a lot different than it does. In 1994, the Archives of Family Medicine published the results of a study conducted by researchers from the Harvard School of Public Health and the Massachusetts Office of Probation that presents a profile of defendants in restraining-order cases that is at variance with the arguments of the Fatherhood Coalition.

The researchers analyzed the prior criminal records of the 18,369 men in Massachusetts against whom restraining orders were issued from Sept. 8, 1992, to March 9, 1993. Three-quarters of the defendants (74.8 percent to be precise) had prior criminal records, and almost half (48.1 percent) had histories of violent crimes. The risk of a restraining order being violated within six months was 15.4 percent; the risk of arraignment for some type of violent crime against any victim during the same period was 29.7 percent.

Clearly, that is not a random sample of the men of Massachusetts. Most of the men against whom restraining orders are issued have a history of criminal behavior and pose a genuine risk of violence to their partners.

Yes, there is a tension in the Abuse Prevention Act between due process and public safety. But that tension is not limited to domestic violence cases; it is inherent in a legal system that seeks to find a balance between individual liberty and communal good. It exists, for instance, in widely hailed legislation signed last week by Governor Paul Cellucci permitting the civil commitment of sex offenders who have served their criminal sentences.

The Abuse Prevention Act was designed to protect, not to punish. That the state's highest court has examined and found wanting the complaints of men who feel aggrieved by the process does not mean they are not entitled to press their arguments in federal court. It means they should not expect to prevail.

Eileen McNamara's e-mail address is mcnamara@globe.com.

This story ran on page B1 of the Boston Globe on 09/12/99.

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