Posted by Edmund R. Folsom, Esq., January 20, 2018.

DISCLAIMER:  The following is not legal advice.  It is not intended as legal advice and should not be taken as legal advice.  It is offered in the way of aiding understanding, only.

I come to you now as a 33-plus-year denizen of Maine’s criminal justice system bearing witness to abuse; an all-too-frequent abuse of the system itself; an abuse about which the system seems wholly indifferent.  Through its indifference, the system invites, encourages, and even rewards its own abuse. What to do… what to do? Does the political zeitgeist demand that we pretend there’s nothing to see here?

Ordinarily, Maine criminal law discourages people from soliciting or assisting others to commit a crime. The accomplice liability statute, 17-A M.R.S. §57, makes any person who is an “accomplice” just as liable as the person who actually carries out the crime.  An accomplice is defined as a person who “[w]ith the intent of promoting or facilitating the commission of the crime…solicits [another] person to commit the crime, or aids, agrees to aid or attempts to aid such other person in planning or committing the crime.” 17-A M.R.S. §57(3)(A). If, for instance, I know you are on bail on a pending criminal charge under a condition not to use or possess alcohol, and if you get drunk with me and violate that bail condition, I am your accomplice and am as guilty as you are of the crime of violating a condition of release if I cajole you to drink with me or furnish you the alcohol.  In cajoling you to drink with me, knowing you are on a bail condition not to drink, I am soliciting you to commit the crime of violating your conditions of release, and if I supply you with the booze I am aiding your commission of the crime.  There is, however, an exception to this general rule of accomplice liability for those who are “the victim of [the] crime.” 17-A M.R.S. §57(5)(A).  I can, with impunity, solicit you, agree to aid you, attempt to aid you, or actually aid you in committing any crime, fully intending to promote or facilitate the commission of the crime, as long as I am its “victim.”

Uniformly, when a person who is charged with a crime of “domestic violence” is released on bail, bail conditions include a condition that the person may have “no contact,” direct or indirect, with the alleged victim. Often, the alleged victim is a spouse who shares a home with the defendant.  Suddenly, the defendant and alleged victim cannot live together, cannot make arrangement regarding their children, cannot collaborate on household finances, cannot communicate with each other in any way, even through third parties, because any communication whatsoever would violate the “no contact” bail order.  Actually, the alleged victim is allowed to engage in these activities, because bail conditions only apply to a defendant.  So, the alleged victim can reach out to the defendant and attempt to communicate or otherwise have contact without adverse personal consequence.  Again, if a third person were to solicit or aid a defendant in such communications in violation of a bail condition, that third person would be the defendant’s accomplice in the commission of the crime, but the alleged victim cannot be an accomplice, so the alleged victim’s solicitations or assistance go without consequence.  Bail conditions are a one-way street.  They are a court’s order, and anyone subject to a court’s order who violates it does so at great risk.  After all, we cannot, as an organized society, tolerate people subject to a court’s order violating it with impunity.  On the other hand, an alleged victim is not subject to a court’s “no contact” bail order – only the defendant is.  Perversely, we have no problem tolerating a “victim’s” solicitation, encouragement, or assistance to a defendant in the violation of a court’s bail order.

In addition to “no contact” bail orders, defendants in domestic violence cases often find themselves subject to a “no contact” provision in a protection from abuse order.  These orders issue when an alleged victim/plaintiff who qualifies as a “family or household member” or “dating partner” of the defendant proves it is at least slightly more likely than not that the defendant committed an act of “abuse” against the alleged victim/plaintiff. See 19-A M.R.S. §4005(1).  Frequently, the alleged abuse consists of “causing…offensive physical contact” to the alleged victim/plaintiff, see 19-A M.R.S. §4002(1)(A), which parallels a pending charge of domestic violence assault (“intentionally, knowingly or recklessly causing…offensive physical contact to another person” who is a family or household member. See 17-A M.R.S. §§207, 207-A).

Judges, being of above average intelligence, tend to be aware that if they are ever faulted for a decision in one of these cases it will likely be for denying an order and then having something go horribly wrong between the parties. That could seriously damage a judicial career.  On the other hand, it is extraordinarily unlikely any judge will ever suffer career damage for finding it slightly more likely than not that “abuse” occurred and issuing a “no contact” order to a defendant.  If a judge is left to make a decision after a hearing, the protection from abuse order will issue based on a judicial finding of “abuse.” Often, the parties will instead agree to have the court issue a protective order without a judicial finding of abuse.  That allows the plaintiff to secure the desired order without having to testify, while it allows the defendant to avoid a judicial finding of “abuse” that would follow him evermore.  Once a protection from abuse order issues, whether based on an agreement or a judicial finding of abuse, it has full effect as a court order.  As with a “no contact” bail order, a protection from abuse order is a one-way street.  Violating one is a crime, see 17-A M.R.S. §506-B, but because a “victim” cannot be an accomplice, a plaintiff/victim can solicit the defendant or even aid the defendant in violating the protection from abuse order with impunity (The uninitiated might find it hard to believe, but I have even witnessed social media importuning as drastic as a threat to commit suicide if the defendant refuses to communicate).

In fact, as is the case with a “no contact” bail order, the system allows the plaintiff/victim to solicit, encourage, and even aid the defendant’s violation of the order, and to then call the cops to report the violation and get the defendant locked up, all without even forfeiting future “protection” of the protective order.  The unscrupulous have been known to do exactly that, all too often in fact.  If you doubt me, ask any criminal defense lawyer you know.  The stories would fill volumes.  In other words, an alleged victim of a domestic violence bail violation, and/or “victim” of a protective order violation who solicits, encourages and even aids the defendant’s violation of a “no contact” order can bring to bear the entire police, prosecutorial, judicial and incarceration apparatus of the State on a whim, without adverse consequence. Now that’s power and control. And the thing is, the State doesn’t seem to care when its entire police, prosecutorial, judicial and incarceration apparatus is used this way.  The system does the bidding of the unscrupulous, with indifference.  It is complicit in its own abuse.  Imagine being able to manipulate and wield the power of the State to serve your own personal interests this way, and still be swaddled in the mantle of that most-coveted status — “victim.”  It’s a coup — power and control, rarefied.  It ought to be a crime.