June 25, 2018
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Fix loophole: Domestic violence doesn’t always end upon arrest

Linda Coan O'Kresik | BDN
Linda Coan O'Kresik | BDN
Small bouquets in mason jars lined a table in October, each with the name of people who lost their lives due to domestic violence in Maine in 2013.

The work continues, as it has for years, to adapt Maine law to better protect victims of domestic violence. Only this legislative session, one bill is tackling a problem that was inadvertently created by previous legislation that changed the way bail is set in some domestic violence cases. The Legislature will best serve victims and the public by fixing the loophole it accidentally created about a year and a half ago.

In April 2012, Gov. Paul LePage signed a bill into law that made an important change: In cases where someone is accused of violating a protection from abuse order or committing a felony domestic or sexual abuse offense, bail commissioners, who had limited information about a defendant’s history, would no longer be able to set bail conditions. That duty, the governor and Legislature determined, should be up to a judge.

While having a judge take over the procedure means there’s less likelihood of inappropriately lax bail conditions, it takes a little longer to authorize them. And in that time between when defendants are booked at a jail and when a judge sets the rules surrounding their bail, some defendants are using the opportunity to call up the people they are charged with terrorizing or assaulting.

That phone call or text — or simply a message given to someone else to give to the victim — can be debilitating and infuriating for victims. If a victim’s life or the lives of his or her children have been threatened, and then the alleged perpetrator can call and say something like, “I’m sorry,” demonstrating his or her continued reach and influence over the victim, how is the victim supposed to feel safe? The unwanted contact adds trauma to trauma. It could also make the victim not want to help the prosecution.

In addition to other modifications, LD 1656, sponsored by Sen. Emily Cain, D-Orono, would make it illegal for someone charged with a felony domestic violence offense to contact the victim directly or indirectly when detained in jail awaiting judicial review. While the bill will need some amending — such as to require that defendants be notified of the law after they are charged — it should ultimately pass.

It is supported by the Maine State Police, domestic and sexual violence advocates, attorney general, secretary of state, and jail administrators. Some lawmakers on the Criminal Justice and Public Safety Committee, however, expressed reservation with the bill during a public hearing and may need further convincing to support it. In particular some were concerned that they would essentially be requiring a bail condition prior to bail being set by a judge. It’s a valid point to consider.

We’d argue, however, that the goal of the law change a year and a half ago will continue to be significantly undermined if legislators don’t fix the current problem. It is irresponsible for the state to arrest someone on charges of physical or sexual assault but then let that person contact the victim.

Maine has crimes for harassment or witness tampering, but it’s not a crime for a defendant, prior to bail conditions being set, to simply contact the person he or she has assaulted. Yet that contact can be damaging to both a victim and a criminal case. Perpetrators of domestic and sexual violence can be dogged and creative in their pursuit to harm their partners. The state needs to keep up.


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