In yesterday’s post, I came down pretty hard on our Maryland legislature for drafting and passing legislation I believe is unconstitutional. The domestic violence laws in Maryland simply are unconstitutional because they implicate criminal penalties for civil violations without offering the due process protections of the criminal process. In addition, unlike our criminal code, they contain confusing and inadequate definitions that open the door to inconsistent judicial interpretation and results.

For the sake of clarification, let me say that our legislators are extraordinary folks who do an extraordinary job. A job, I might add, that not many of us would take on, with not much in the way of thanks. Most of our legislators (the folks who actually draft our laws) are not lawyers. The few that are lawyers try to help their colleagues when it comes time to write the bills that eventually become our law. These folks are twice as busy as everybody else because they have to run their law practice as well as serve their constituents. They also have a heavy responsibility because the other legislators rely heavily on them to ensure the bills are soundly drafted. I have enormous respect for these folks and I do understand the difficulties they face in their work. But I respectfully suggest that at times, the demands on their time and energy may make it difficult for them to step back and see the larger picture. Perhaps in the attempt to write bills that are technically correct, they may miss the underlying Constitutional and human implications.

I also want to make clear that I think laws to protect victims of family violence are a wonderful and necessary improvement to our laws. I do not criticize that we have them, I criticize where they fall in the structure of our statutes (these are the books where the laws the legislature passes find their way) and how they are applied.

Because no complaint or criticism should come without a proposal to solve the problem, I’m respectfully offering my proposal here.

First, laws about family violence should be in the criminal code, not the family law code. For the non-lawyer readers, most of Maryland’s statute books are divided into topics. Sometimes, the legislature passes a law that should go into a different book. That’s the biggest problem with Maryland’s domestic violence laws. The reason these laws should go into the criminal code is that the criminal process has very stringent ways of protecting the rights of Maryland citizens to due process (that means if you are accused of a crime, you have the right to “notice and an opportunity to be heard”). Because the domestic violence laws are in the family law statute, all the proceedings are civil proceedings. This means that the courts don’t have to ensure due process at the higher level they do in criminal cases.

If a state gets money from the Federal government for family violence programs (and most do) it has to meet certain requirements of a Federal law known as the Violence Against Women Act (VAWA). Right out of the box there’s a gender-based discriminatory element to the Federal law, but nobody has challenged it. I don’t practice in the Federal courts and I certainly don’t want to spend hours reading VAWA, but it is possible that VAWA requires states to write their family violence laws so that the proceedings are part of the civil process. If so, somebody really needs to challenge that part of the Federal law. But if not, there isn’t any reason not to move all those laws from the family code to the criminal code. If family violence is such a serious issue (and it is), the real offenders should be punished criminally and every person accused of this crime (and it is a crime) should have due process protection at every stage of the process.

That’s the next suggestion. No commissioner should be deciding to grant protective orders, ever. Judges have the legal knowledge to decide whether the facts of a case meet the legal standards. Commissioners do not.

The next suggestion is that at every stage of a family violence proceeding, especially the initial stage, the person accused should get full due process protection, which means he or she should be able to be present and heard by the judge deciding whether to grant a temporary protective order.

Finally, the definitions of what family violence is need to be re-drafted so they are internally consistent. Take the definition of “assault” as an example. The criminal statute has very clear definitions of what that means. But “assault” is also defined in the family law statute that contains the domestic violence laws and that definition is different than the one in the criminal code. It isn’t as clear and to make matters worse, there is another way to define “assault” that I’ve seen judges use. That is the “tort” definition. Loosely defined (real loosely, since I don’t practice tort law) a ‘tort’ is something wrong someone does to someone else that the law allows them to get money for. Just for the sake of all my critics out there, this is not for purposes of legal advice, but to help the general public understand the problem and my proposal.

Each and every definition in the family violence statutes must be carefully redefined. If the laws become part of the criminal code, the definitions have to be consistent with the criminal code and the criminal procedures of Maryland. This would make it harder for people who want to use the system as a shortcut to getting child custody, keeping the other parent away from his or her child, and paying for family support by raising false allegations. It would also make it easier for judges to identify actual perpetrators of family violence and protect actual victims.

I never want it to be said that I believe that victims of family violence are making up their stories. There are too many actual victims of family violence of both genders out there. These people deserve the protection of our laws. The point is, family violence is a crime that affects men, women and children, and if we are going to take it for the serious offense that it is, we need to be sure that it is defined as a crime by our laws and that those laws are written so that judges can consistently apply those laws. That is not the case with our current statute and I’d like to see that change.