June 19, 2014
The Honorable Karen E. Spilka The Honorable Garrett J. Bradley
State House, Room 320 State House, Room 479
Boston, MA 02133 Boston, MA 02133
The Honorable Cynthia Stone Creem The Honorable Christopher M. Markey
State House, Room 312A State House, Room 136
Boston, MA 02133 Boston, MA 02133
The Honorable Richard J. Ross The Honorable Keiko M. Orrall
State House, Room 520 State House, Room 540
Boston, MA 02133 Boston, MA 02133
Re: Acts Enhancing Protections for Victims of Domestic Violence (S1897/H4038)
Dear Members of the Conference Committee:
The Women’s Bar Association of Massachusetts (WBA) commends both the Senate and the House for their commitment to reducing domestic violence (DV) and has reviewed both bills. The WBA has advocated for many of the provisions included in these bills and asks you to consider our specific requests below.
1. Elimination of the Use of “Accord and Satisfaction” in DV cases
This has been a WBA priority for some time so that Massachusetts would no longer be the only state where the accord and satisfaction is used to dismiss a criminal domestic violence case over the prosecution’s objection. We suggest that the House version be adopted (Sect. 35 of H4038), because it is covers more situations BUT it should include “section 34C of chapter 208” as does the Senate version (Sect. 6 of S1897).
2. Provisions regarding strangulation and suffocation
Massachusetts’s criminal laws do not adequately protect victims of strangulation or adequately punish those who use this form of violence. Therefore, the WBA supports provisions that would make strangulation and suffocation felony offenses by adding a new §15F to M.G.L. c.265. (Sect. 30 of H4038; Sect. 5 of S1897). We suggest that the House version be adopted because it is provides greater protection for victims and sub-section “(d)” providing for a certified batterer’s intervention program in certain circumstances BUT use the Senate version of sub-section “(c)” since it offers more “like offenses” and includes “section 34C of chapter 208” and section “20 of chapter 209C”.
3. Assault and battery on family members (Repeat Offenders /“fix it”)
Both H4038, Sects. 28 and 29 and S1897, Sect. 4 correct the technical problems Chapter 534 of the Acts of 2008 by creating a new §13M of M.G.L. c.265 that establishes the predicate first offense, thus triggering the treatment of a defendant as a repeat offender. Both bills provide expanded definitions of “family members”. The WBA recommends that the House version be adopted because it is provides a broader definition of family members and a larger list of predicate offenses which expose a repeat offender to greater punishments. Also, we are concerned that the Senate version requiring marriage or living together “within the 5 years preceding the alleged offense” doesn’t reflect the fluidity of relationships. The House version for batterer’s intervention programs doesn’t require an additional $300 to support domestic violence prevention services which may deter judges from awarding it.
4. Employment leave and safety remedies to victims of domestic violence
Both H4038, Sect. 9 and S1897, Sect. 1 are intended to show that domestic violence is a serious crime against the state and not simply a private injury; ensure that victims obtain the resources that they need including legal or housing assistance, medical attention, counseling, victim services; that victims can timely address issues directly related to the abuse; that the employee’s leave shall be kept confidential by the employer, except where such disclosure is required; and provide victims of domestic violence with leave from work due to imminent danger to their health and safety or that of a family member.
The WBA suggests using the Senate version of definitions since it contains “(vi) restraining the liberty of another”. We suggest using the House version for acceptable documentation in “(e)(1)”. There are safety factors which may cause a victim to go into court, speak to a victim witness advocate, and then leave the court with a safety plan but no 209A. H4038 would allow for a letter from that victim witness advocate whereas S1897 would not. Regarding sub-section “(f)”, disclosure of information, we prefer the Senate version because we see a safety risk for a victim in the House version “(iv) and (v)” which allows information to be obtained over a victim’s objection.
5. Changes to chapter 209A must not diminish currently existing protections
Section 12 of the House bill, as drafted, may have the effect of limiting the protection currently afforded to victims and weaken Chapter 209A and, therefore, runs counter to the purpose of this legislation: to strengthen the domestic violence laws in Massachusetts.
Like the Legal Service’s Family Law task force, The WBA is concerned that the proposed Sect. 12 may inadvertently weaken protections for DV victims. Currently, the District Courts have the authority to issue 209As for a year regardless of Probate Court involvement. Although the intent of sect. 12 is to apply to only those who are seeking
emergency orders with a change of custody, we believe that District Courts may read this section and issue 209A orders for 30 days in all cases involving pending or prior Probate Court cases (even where the Probate Court case is over). The reason for our concern is because we see many cases there District Court judges want to “refer” a case over the victim’s objection and even when the Probate Court is inaccessible via public transportation. Victims often have trouble articulating why it is safer for them to remain in District Court. We would request that the Conference Committee either redact sect. 12 or include an extra sentence that says that “Nothing herein shall be interpreted to mean that superior, district or Boston municipal court judges are prohibited or discouraged from ordering all other necessary relief or issuing the custody and support provisions of orders pursuant to this chapter for the full duration permitted under subsection (c) of this section.”
6. Other criminal provisions require further study
The WBA believes that further consideration is needed regarding provisions which increase penalties for certain domestic violence crimes (H 4038, Sects. 27 – 29) and to change the current bail (H 4038, Sects. 34 - 44) or CORI laws (H 4038, Sects. 45 – 47).
7. Fatality review teams require further study
The WBA welcomes the suggestion for the creation of a commission to study and provide recommendations for the formation and implementation of a state-wide fatality review teams. The related sub-sections of H 4038, Sect. 4 should be delayed.
8. Enhanced DV training
The WBA supports suggestions for comprehensive training as outlined by the Legal Service’s Family Law task force to strengthen H 4038, Sect. 1.
The WBA, a professional association of women attorneys and judges with over 1600 members across the Commonwealth,was founded in 1978 and is committed to the full and equal participation of women in the legal profession and in a just society and to protecting the interests of families and children, especially victims of domestic violence. Our legislative priorities are focused on issues such as domestic violence, reproductive rights, welfare, and civil rights.
Thank you for your consideration, and please contact us if we may provide any additional information to assist you.
Kara DelTufo Jennifer Hillery
WBA President Legislative Policy Committee
cc: Senate President Therese Murray
House Speaker Robert DeLeo
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