In a recent case before Maine’s State Supreme Court (The Law Court), State v. Mosher, 2012 ME 133, Christopher Mosher challenged the 2-year probation term imposed as part of his sentence for a conviction of domestic violence assault.   Mosher claimed that the probation term violated the equal protection clause of the Maine and U.S. Constitutions.   In Maine, the maximum probation term for a Class D or E crime is ordinarily 1 year.   There is an exception, however, that allows a 2-year term of probation to be imposed for those convicted of certain crimes involving domestic violence, if the court orders the defendant to complete a “certified batterers’ intervention program.”   Why, you might ask, does that implicate the equal protection clauses of the Maine and U.S. Constitutions?    Because the term “certified batterers’ intervention program” is defined to mean only those programs that have been certified by the Department of Corrections, and because the Department of Corrections has only certified batterers’ intervention programs designed exclusively for men.  In other words, because the Department of Corrections has not certified any batterers’ intervention programs that admit females, a judge cannot sentence a female to a certified batterers’ intervention program, so while a court can impose a domestic violence sentence on a man that involves 2 years of probation, the longest probation period allowed for a convicted woman is 1 year.  The fact that men can be sentenced more harshly than women for the same conduct raises an equal protection issue.

In December of 2012, the Law Court issued a ruling on Mosher’s challenge.  In its opinion, the Court acknowledged its own precedent stating that equal protection concerns prohibit punishing a man more harshly than a woman for the same crime.   The Court then sent Mosher’s case back to the sentencing court for a factual determination whether what appears, from the statutory/regulatory scheme, to be true is in fact true—that there are no certified batterers’ intervention programs that a court can order a woman to complete as part of a 2-year probationary sentence.  The Law Court also instructed the sentencing court that, if the court finds that gender based distinctions exist in implementation of certified batterers’ intervention programs, the court should determine whether those gender based distinctions are substantially related to a legitimate governmental interest (the test for whether they pass equal protection muster).   As reported in a story in the Portland Press Herald, on February 2, 2013, the sentencing court held a hearing, on February 1, 2013, to allow itself to make factual findings.  It was established at that hearing that, in fact, no batterers’ intervention programs have been certified for female participation.

Why doesn’t the Department of Corrections simply certify batterers’ intervention programs for women based on the identical curriculum used in the programs it certifies for men, you might wonder?  This brings us to the most interesting part of the story, to the intersection of law and politics, where gender politics have dictated the state of Maine law.   To illustrate, let’s take a look at the regulations that the Department of Corrections has promulgated for certification of batterers’ intervention programs.  First, the term “batterers’ intervention program” is defined as “an educational program for men…designed specifically to intervene with court referred adult men who are abusive to their intimate women partners [emphasis added].”  Defining the term this way, and building the criteria for program certification around that definition, makes it rather difficult to adapt these programs to women, don’t you think?   The truth is these programs, and the entire concept of domestic violence offenses, were created to apply only to men as perpetrators and women as victims, and never vice versa.   Back in the early 1990’s I was an assistant district attorney watching at ground level as the political force that underpins these laws grew, propelled by members of the “battered women’s movement.”  I once attended an annual statewide prosecutor’s conference at Sugarloaf Ski Resort, where we were treated to a lecture by a member of the movement on the evils of patriarchy and its promotion of the fundamental inequity in the power relationship between men (oppressors) and women (victims).  Examples of the insidious reach of patriarchal assumptions included the way women in our fundamentally flawed society are “given away” by their fathers, like chattel, at their wedding.    The message was that reducing domestic violence requires a fundamental re-education of men, to free us from our socialization as oppressors.   At an in-house program on domestic violence within that same time frame, all of the assistant D.A.’s I worked with were made to endure a presenter, from the battered women’s movement, who lectured us that a batterer is not only a man who perpetrates physical violence against a woman but is also a man who speaks to a woman in ways she perceives as belittling or uncomfortable.   Expressing disagreement can actually constitute battering if it makes the woman with whom the man disagrees feel intimidated.  What does any of this have to do with the laws regarding batterers’ intervention programs?  It was these same representatives of the battered women’s movement who wrote the rules on batterers’ intervention programs.  It’s by design that these programs do not apply to women.   In the minds of those who wrote the rules, it’s oxymoronic to conceive of a batterers’ intervention program for women.

Maybe you think I’m completely off base, so let’s look again at the Department of Corrections’ regulations for certifying batterers’ intervention programs.  As seen above, they begin by defining the programs specifically in terms of men who are abusive to intimate women partners.  Then, the regulations create the requirement that certified batterers’ intervention programs  “shall acknowledge the leadership of survivors, who are experts on domestic abuse, and the battered women’s movement, in ending violence against women through:

    • …publicly acknowledging the contributions of the battered women’s

movement and that the [Batterers’ Intervention] Programs exist

in support of the goals of the [Family Violence]Projects

    • …consultation with the local [Family Violence]Project when seeking

funds in a way that competes with funding for [Family Violence]

Projects... and…

    • …hold[ing] themselves accountable to to the battered women’s

movement, acknowledging that a working relationship may go beyond these

standards [emphasis added].”

That doesn’t leave much room for doubt as to who called the shots when the rules were drafted.  In case there’s any room left for mistaking whether women can be made to participate in a certified batterers’ intervention program, the regulations also specify that batterers’ intervention training will be based on nationally recognized batterers’ intervention programs and “will be… comprised of the same sex (men).”   The regulations further specify that it’s inappropriate for any batterers’ intervention program to involve “individual counseling; …anger management;… family therapy; or…medication management.”  Instead, acceptable programs must teach that “stress, a life crisis, and chemical dependency are not causes of domestic abuse;…[and] domestic abuse is one choice a batterer makes to gain and then maintain an imbalance of power and control in his relationship with his intimate partner [emphasis added].”

I am so pleased to see that attorney Scott Hess has effectively invoked constitutional protections in an area of law that has so long been dominated by leftist feminist dogma.  And I very much hope the courts don’t ultimately uphold this scheme on a finding that the disparate treatment passes equal protection muster because it’s substantially related to a legitimate governmental interest.   In my view, that would represent a formal recognition and adoption by the State of the radical feminist “men are the root of all evil,” one-size-fits-all theory of violence between the sexes.  And, by the way, the Maine statutes themselves do not purport to take this narrow, agenda-driven focus.  By statute, a person may be sentenced to 2 years of probation if ordered to complete a certified batterers’ intervention program upon conviction of a range of offenses, if it is proven that a particular offense was committed against a “family or household member.”  The term “family or household member” is defined in gender-neutral terms and includes parents and children, adult siblings and same-sex domestic partners of either sex.

Before I leave this topic, I’d like to relate one more anecdote from my assistant D.A. days dealing with members of the battered women’s movement at ground level.  One member of the movement was responsible for providing a female assistant D.A. in the office with a cartoon that hung on the lunchroom wall for quite a while.   The cartoon showed a plant pot with a pair of boots sticking out of it, upside down, over the caption:  “Grow dope.  Plant a man.”  O.K., it was kind of funny, and all the women I worked with at that time were very nice people, none of whom actually considered putting a man in the ground (that I know of), but would anyone in that lunchroom have thought it was funny if the caption had substituted the word “woman” for “man”?  See, that’s the thing… it’s always a one-way street.

Thanks again, Scott Hess, and may the Maine and the U.S. Constitutions this time prevail over an abusive exercise of raw political power and control.

The Regulations for Batterer Intervention Program Certification are located here:  http://www.maine.gov/sos/cec/rules/03/chaps03.htm   Look near the bottom of the page, for “ch. 15” to find the link to the PDF file.

2 Responses

  1. Jan Elizabeth Brown

    Dear Ed,

    Thanks for writing this outstanding blog article. It’s amazing to me that there hasn’t been an appeal won on this issue sooner. The Dept. of Corrections policies on BIP’s have been in place re: “men only BIP’s and if we want BIP’s for same sex and heterosexual women a different model may be developed,” for at least 12 yrs. VA has the same sentiment and I suspect many other states do also.
    Would love to speak with you further about this issue and the agency I founded over 12 years ago here in central Maine that specializes in offering supportive services (here in Maine and nationally) to men in relationships with abusive women.
    FYI, our website is having technical difficulties currently that we are working on but if you go to the site you can read our mission etc. Thanks again! Jan Elizabeth Brown, Founder and Executive Director, Domestic Abuse Helpline for Men and Women