Domestic violence cases are notoriously difficult to prosecute.

But every once in a while, prosecutors get handed the tools for a conviction on a silver platter: An impartial eyewitness who just happens to be a police officer.

Such was the case in a domestic violence trial that made the local papers here in Maryland last week. A cop pulling into an Exxon station saw a man hit his girlfriend in the face three times, called in back-up and had the man arrested.

But according to Anne Arundel County Circuit Judge Paul Harris, who is "probably as against domestic violence as anybody, when the case is proven," one can't simply assume that a woman who is being hit didn't consent to the attack. "Sadomasochists sometimes like to get beat up," the judge reminded the courtroom--then acquitted the man.

The judge appeared to be in a snit because the girlfriend, the alleged victim in the attack, had disappeared, even though she had been ordered to testify. Ignoring decades of research proving that domestic violence victims are often too afraid and intimidated to testify against perpetrators, the judge discounted the female cop's eyewitness account.

The Baltimore Sun reported on the judge's comments: "The state is stepping into the shoes of the victim when she obviously doesn't care," Harris told the prosecutor, according to a recording of the October 3 hearing. "It's that big brother mentality of the state….But I have to decide the case based on what I have and I think a crucial element is missing." Judge Harris, defending his position, asserted that to prove this was truly a second-degree assault, it had to be clear that "the defendant's actions were not consented to by the victim." He wondered, "How do you determine that without the victim?"

Hmmm.

"What would we do in a murder case?" Byron L. Warnken, a professor at the University of Baltimore School of Law, fretted to a Baltimore Sun reporter.

The Capital of Annapolis and Baltimore Sun reporters thoroughly chronicled this miscarriage of justice, but silence greeted this dangerous precedent from the rest of the nation.

If a woman falls in a parking lot and no one is around to hear, does she make a sound?

Comments (20)

1. PONTI-FLOGIC has made it's way into a court room?

   nobody murdered Chandra Levy, because no one has ever ben charged. This country is going to hell pretty fast, lead by the sheep of the right.

   Sicko judge. Bad judge! No donut for you

   Posted by crabwalk at 10/25/2007 @ 08:24am

2. I believe two pieces of information are missing from this article.

   (1) What are the reasons why the victims of domestic violence are reluctant to appear in court to testify against their abusers? Do the police provide them with insufficient protection? Or is the problem psychological attachment to the abuser? In the former case, what protection could be provided that we are presently failing to provide? In the latter case, what does recent psychological research teach us?

   (2) What is the value of a police officer's testimony that an event took place if there is no other evidence? How much weight do we give to this testimony in cases not involving alleged domestic violence?

   If I had answers to the above two questions, then I would be in a better position to evaluate this judge's decision. Sure, I'd like to see the criminal justice system catch more domestic abusers. But I wouldn't like them to warp the rules of evidence to do so.

   There is another issue of interest here. When an abuser threatens harm to somebody else, he can get arrested. But when a psychologically disturbed person threatens harm to herself, it's very difficult to impose treatment that may be life-saving. I believe our concept of personal liberty is underdeveloped when we simplistically assume that whatever a person consents to must be all right.

   I say this as a person who favors physician-assisted suicide under some circumstances, which is to say as a person who realizes that there is a lot of grey area here. I also understand that committing suicidal persons to hospitals against their dubiously "free" will often saves lives. Could similar humane "coercion" save the life of a victim of domestic violence?

   Posted by JakobFabian at 10/25/2007 @ 08:35am

3. I agree with Karen Houppert that the judge's remark -- that sado-masochists like to be harmed -- is disturbing. Nobody likes to be injured, and even those who sexualize fantasy violence do not actually want to suffer harm.

   My question is how much one police officer's testimony should be worth. Suppose this police officer has a personal vendetta against the alleged abuser. Suppose the alleged abuser is black and the police officier is the over-zealous racist defender of an all-white small town where she feels the alleged abuser doesn't belong. (Yes, women can be racists, too.) There are a lot of reasons why we should be skeptical about the testimony of only one person when there is no physical evidence.

   So, no, I don't believe this case should just be tossed out of court. But do we really have enough evidence to convict the alleged abuser? Again, I want us to catch all the wrongdoers, but I also want to make it very difficult for cops with vendettas to convict people who are actually innocent.

   Posted by JakobFabian at 10/25/2007 @ 08:49am

4. What a nut!

   They were in "Mistress Heather's" or some S&M/B&D bar. They were in a gas station. Hardly the place where people engage in "alternative sexuality"!

   Elected or appointed...get rid of that moron.

   Posted by Mask at 10/25/2007 @ 09:00am

5. can't they get victims to testify through electronic means?

   Posted by frosty zoom at 10/25/2007 @ 09:24am

6. you know, i bet this judge is a gas station bathroom toe-tapper!

   Posted by frosty zoom at 10/25/2007 @ 09:41am

7. "The state is stepping into the shoes of the victim when she obviously doesn't care," Harris told the prosecutor, according to a recording of the October 3 hearing. "It's that big brother mentality of the state…"

   Sounds like some of the resident "libertarians."

   2) What is the value of a police officer's testimony that an event took place if there is no other evidence?

   Posted by JAKOBFABIAN

   In Texas all a cop has to do is "say" you're intoxicated to get stuck with public intoxication. There is no breathalyser or anything required, only the officer's "word."

   Did the woman not make a statement to the police when the man hitting her was arrested?

   "The judge appeared to be in a snit because the girlfriend, the alleged victim in the attack, had disappeared, even though she had been ordered to testify."

   Judges get their panties all in a wad when anyone chooses to defy or ignore them.

   Posted by mtspence05 at 10/25/2007 @ 09:45am

8. Hey Empty, maybe the boyfriend just wanted a little sum'em-sum'em, and "unfortunately, tried to be a nice guy, but all that did was get him jerked around" so he need to get a "little rough"?

   Posted by Mask at 10/25/2007 @ 09:59am

9. Posted by MARY

   You wanna stoop to that, huh? Okay. Just no whining.

   Posted by mtspence05 at 10/25/2007 @ 10:04am

10. Jako: what more evidence is needed? any examination would reveal the credulity of the police officer and the testimony. the woman obviously filed a charge. this judge has spent too much time in the porn sites.

    Posted by steve foster at 10/25/2007 @ 10:14am

11. "The judge appeared to be in a snit because the girlfriend, the alleged victim in the attack, had disappeared, even though she had been ordered to testify."

    That's what it's all about.

    Posted by mtspence05 at 10/25/2007 @ 10:18am

12. "What would we do in a murder case?" Byron L. Warnken, a professor at the University of Baltimore School of Law, fretted to a Baltimore Sun reporter.

    I agree w/Judge Harris' finding....to impose a `Guilty' verdict without hearing the girlfriends' side of the story, or someone qualified to testify on/for her behalf, is dangerous in setting a precedent!

    As for "What would we do in a murder case?", if I'm NOT mistaken, without a body, any murder case are much harder to prosecute....would require very strong circumstantial evidence!

    I believe Ms. KvH's concern here is more due to gender than the requirement of justice in the BIG PICTURE!

    Posted by Happy at 10/25/2007 @ 11:14am

13. HAPPY, what about the eyewitness testimony of the police woman? Does that mean anything to you?

    Posted by ILOVEPHYSICS at 10/25/2007 @ 11:17am

14. Since you have a right to confront your accusers (all your accusers in this case), I agree that a conviction (finding of guilt) shouldn't have been entered. I disagree that the case was tossed though. Should have been continued to allow the victim another chance to testify. Who knows why she wasn't there?

    Posted by FritztheCat at 10/25/2007 @ 11:37am

15. ...what about the eyewitness testimony of the police woman?...

    Posted by ILOVEPHYSICS 10/25/2007 @ 11:17am

    Quite possibly, her presence at the gas station to witness a spat, is the sole reason there is this case. I don't discount it, but it ain't enough for me....and obviously, nor for Judge Harris!

    Posted by Happy at 10/25/2007 @ 11:47am

16. So the basic HAPP/MARYBRET Darin theory is...

    "Don't trust the cops"

    and "Sometimes a broad deserves even CONSENTS to be belted"

    Odd mix of "hippie" and "50s macho" philosophies, huh?

    Posted by Mask at 10/25/2007 @ 12:44pm

17. Has anyone else noticed that MARY's moniker contains the word retard? Might explain some of her risible comments.

    Posted by chimichenga at 10/25/2007 @ 12:52pm

18. Happy, MaryBretBrad, and all others supporting Judge Harris's decision need to take a step back here, as do those on the other side of the argument. That's because both have lost sight of the law as it applies in Maryland, as has Judge Harris (which is why so many legal professionals in Maryland are also upset with this ruling.)

    First, for those speculating on what we do know of what took place, here is a more complete story [hometownannapolis.com] on the case, including aspects left out elsewhere. It turns out that the arresting officer saw the entire assault and initially assumed a car-jacking was in progress, which should give you a better idea of the violence of the situation. It also includes the statements both parties made to the officer at the scene, including the admission that the man (Webb) attempted to drag the victim from her car by her hair (and the officer also observed the victim's "hair piece" on the ground where it had been pulled from her head.) That is information directly from the officer's testimony at trial, and under most circumstances of assault would be enough for conviction if the assaulter were a stranger, even without the victim's testimony. That is something we need to keep in mind as we move on to my second point, since in Maryland there is no legal difference between a domestic violence assault and any other assault of the same degree (i.e., Webb was charged under the normal procedure for "Assault in the Second Degree", not a special domestic violence charge, which does not exist in Maryland.)

    A search of Lexis/Nexis's Michie's Legal Resources (which lists the Maryland Codes, including criminal law and procedure) turns up some interesting facts that rather contradict Judge Harris. The relevant staute, § 3-203 [michie.lexisnexis.com], has no provision requiring that the victim or the state prove that contact was non-consensual in the case of assault, nor do the Maryland rules of criminal proceeding. The fact of injurious assault or battery (both are subsumed under the Maryland statute) is enough to indicate non-consent under Maryland law unless there is evidence to the contrary (of which this case has none) or the victim claims consensual activity, regardless of the relationship between accused and victim. That is why the prosecutors statewide and many other legal professionals are upset by this ruling. They believe the judge has gone well beyond the law in this case and set a standard that the law rejects.

    Third, for those raising Constitutional objections, there is no real opposition from that front either. The Sixth Amendment does not give one the right to confront their "accuser", since in any criminal trial like this the accuser is the State itself. The very idea is rather silly, since it would be impossible to bring a charge without the "right to confront your accusers (all your accusers in this case)" (as Happy terms it.) The text of the Sixth actually states that the accused has the right "to be confronted with the witnesses against him" [emphasis mine], which clearly applied in this case. The victim, having refused to appear, is not acting as a witness against the accused, so his rights in that sense have not been violated. The officer is the only witness whose testimony is being offered, and the defense had full opportunity to confront her in open court. This provision was included in the Bill of Rights (so Madison's account tells us) in order to prevent secret testimony and allow for questioning of witnesses by the defense, nothing more.

    What this amounts to is the judge is on very dubious legal grounds here. This is no "he said, she said" case of domestic violence where the victim is the only witness, it is a clear case of public assault within the sight of a police officer. The Maryland Code simply does not support his contention that non-consent must be proven, since the law itself assumes assault is inherently non-consensual. Now, if those who've been supporting Judge Harris want to argue that the law needs to be changed, that is certainly valid, but as it currently stands the there is no support for this dismissal.

    Posted by Stwriley at 10/25/2007 @ 1:47pm

19. Posted by CHIMICHENGA 10/25/2007 @ 12:52pm

    Notice that yours contains "chi chi"...both breasts in Spanish slang BUT in South East Asian slang, it's...

    Chichi:

    Dirt or trash. Chichi has been modified in a more vulgar form meaning feces.

    Etymology: Chichi is a South Asian word used when adults talk to toddlers.

    "Kid, you have chici on your face" (Original defination) "Yo, I got to chichi" (Crude/vulgar form)

    Posted by Mask at 10/25/2007 @ 2:02pm

20. ...The very idea is rather silly, since it would be impossible to bring a charge without the "right to confront your accusers (all your accusers in this case)" (as Happy terms it.)...

    Posted by STWRILEY 10/25/2007 @ 1:47pm

    As with MARY/Darin, thanks for a more complete set of `artillary'!

    KvH's short post here reminds me of PETER's Michael LaHood case.....not enough details given! Typical of so many controversies where partial-truth is told for partisan/agenda basis!!

    On the basis of just what KvH posted, nobody is wrong and everybody is right!

    Posted by Happy at 10/25/2007 @ 5:38pm