EQUAL PROTECTION VIOLATION UPDATE

 

Since I originally posted this piece, the rules regarding certified batterer’s intervention programs have been revised to allow women as well as men to participate in the programs.   It was a long time coming.

Equal protection violation update:  As I have previously posted, Maine has a statutory/regulatory scheme that allows men to be punished more harshly than women for conviction of a domestic violence offense.   The statutes allow a person convicted of a misdemeanor domestic violence offense to be sentenced to 2 years of probation if the person is also ordered to complete a certified batterer’s intervention program as a condition of probation.   Otherwise, the maximum period of probation is 1 year.  By regulation, any batterer’s intervention program that accepts females expressly cannot be certified.  The upshot of this arrangement is that men are exposed to 2 years of probation, with certified batterer’s intervention. Women, on the other hand, can only be sentenced to 1 year of probation and cannot be made to attend a certified batterer’s intervention program because such programs do not exist for women.    Maine attorney Scott Hess had a male client who was sentenced to 2 years of probation and was ordered to complete a certified batterer’s intervention program.  Attorney Hess objected that the sentence violated the equal protection clause of the U.S. Constitution.  In December, Maine’s Supreme Judicial Court, the Law Court, held, in State v. Mosher, 2012, ME 133, that the statutory and regulatory scheme certainly appears to allow for the existence only of certified batterer’s intervention programs for men, but the Law Court remanded the case to the trial court for a determination whether this is in fact the case, and if so whether the scheme is appropriately related to legitimate governmental interests so as to pass equal protection muster.

On remand, the trial court held a hearing on the equal protection issues.  In a decision issued March 15, 2012, the trial court found that Maine’s certified batterer’s intervention program scheme does in fact violate the equal protection clause.   The court found that the only batterer’s intervention programs certified in Maine are in fact for men only, and that Maine regulations specifically prohibit the participation of women in a certified batterer’s intervention program.   This results in men being exposed to harsher punishment than women for the commission of the same offense.  Even if men are only sentenced to serve one year of probation, imposition of a probation condition that they must complete a certified batterer’s intervention program itself constitutes harsher punishment, given the costs, the program’s requirements, and the exposure to incarceration for non-compliance, that the condition carries.   Plus, there are legitimate questions as to whether certified batterer’s intervention programs are even effective at reducing domestic violence.  Well Hooray!!!  As I have said in previous posts, Maine’s certified batterer’s intervention arrangement is a product of the criminal justice system having been hijacked by the “battered women’s movement.”

(Update:  Originally, at this point I directed people to a link where they could read the regulations for them for themselves, but now the regulations have been redone.  The old ones have been scrubbed like an out-of-favor government official’s disappearance from group photos back in the good old U.S.S.R.)

Thanks to the very capable work of Attorney Scott Hess, we have begun to wander out of this wilderness.



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