MC 209 209A Reform testimony May 17 2001

CPF - The Fatherhood Coalition

PO Box 700 Milford, MA 01757 · 617.723.3237

www.fatherhoodcoalition.org

209A Reform: Senate Bills S952 & S953

Testimony of Mark Charalambous, CPF/Fatherhood Coalition Spokesman

Joint Committee on the Judiciary, May 17, 2001

Honorable Committee Members:

My name is Mark Charalambous. I am the Spokesman for the Fatherhood Coalition, and also the author of these bills. Thank you for hearing my testimony today.

We are here attempting to change Abuse Prevention Law because too many fathers have unjustly lost their children and suffered criminal consequences because of a fraudulent 209A-protection order.

Because 209A is seriously flawed it is no longer just a shield to protect women from harm, but has become a sword wielded to cause harm.

In a free society people are not punished for acts which they might commit, nor should they be punished for their thoughts. And they certainly shouldn't be punished or have their liberty constrained because of the thoughts or feelings of someone else.

But 209A does all of these things. Fathers are thrown out of their homes and forbidden to have any contact with their own children because of the state of mind of an alleged "abuse victim." 209A, as currently written, doesn't belong in a free society. For many fathers in custody battles, Massachusetts has become a police state.

In November of last year, Harry Stewart finally got what he had been seeking for six years: ¾ an actual trial ¾ to determine whether or not he had "abused" his ex-wife.

Under the glare of publicity, Judge Eileen Shaevel was compelled to actually give Harry the same due process that is accorded real violent criminals ¾ murderers and rapists, etc. Harry is here himself to give you the details of his case.

Judge Shaevel found that Harry was NOT abusive, and that his claims of abuse at the hands of his ex-wife were "credible", whereas the claims of abuse made by his ex-wife were "less credible."

Harry spent six months in jail and lost custody and contact with his children ¾ of whose present circumstances he will perhaps relate directly to you.

His case raises some serious questions:

How did this happen? How did an innocent man, who was himself a victim of his ex-wife's abuse, become a criminal?
Is Harry Stewart's case unique?
How do we prevent these gross miscarriages of injustice?

The answers:

How did this happen? It happens all the time because the law is flawed and it exists within an environment of gender-profiling. It is applied by the courts and law enforcement with a double standard: one for men, a different one for women.
Is Harry's case unique? No. Harry's situation was anything but unique. What is unique, however, is that he had the emotional and moral fortitude to refuse to submit to the Orwellian domestic violence regime that offers freedom to innocent men like Harry if the just come out of denial and admit to their abusive behavior. Shades of 1984!
How do we prevent this from happening in the future? We either fix the law piecemeal by bringing in due process, the presumption of innocence, and other remedies like those in the 209A Reform Bills ¾ or we scrap 209A altogether and rewrite it from scratch. Appropriate and constitutional abuse prevention law would be free of gender politics and gender profiling. It would treat family conflict as family conflict and violent crime as violent crime. The latter solution ¾ rewriting 209A from scratch ¾ is probably not politically feasible in the present environment of hysteria surrounding gender relations. So we must begin to reform 209A as it presently exists. These bills are a step in that direction.

One of the bills, S953, is comprehensive, containing ten separate provisions. S952 contains the three most urgent provisions of S953. Fatherhood Coalition panelists here today will specifically address some of the provisions by relating their personal stories.

These then, are the three most important provisions:

Modifying part of the definition of abuse: "placing another in fear of imminent serious physical harm" is replaced with "threatening another with imminent serious physical harm."

Thus we define an action that the alleged abuser actually commits, rather than rely on the state of mind of the alleged victim.

Violation of the NO CONTACT provisions of a 209A order must be intentional.

Steven Cook committed suicide in April of last year. He had just served 60 days in jail for calling his three-year-old daughter on a Monday instead of Sunday. This tragic loss of life was unnecessary and avoidable.

This change doesn't affect violations where actual assault is alleged.

We attempt to introduce some disincentives for lying to obtain a 209A order. When 209A is abused by phony allegations, not only are innocent people harmed by the law but also true victims of domestic violence are indirectly harmed as the growing awareness that women "cry wolf" undermines the efforts of those genuinely engaged in the protection of true victims of domestic violence.

That women intentionally lie when employing 209A orders against estranged partners is denied and minimized by the domestic violence community. They ask the question: "Why would a woman lie about domestic violence?"

But in many respects women are no different than men. Like some men, some women lie when it is to their advantage to do so. The advantages that come from a 209A order are many: immediate removal of an unwanted spouse; immediate strategic advantage in present or impending divorce/custody litigation; a child support order; possession of the marital property; and even just plain simple vindictiveness or revenge, to name a few.

Proponents of keeping 209A as it is, or even making it more Draconian, often describe female abuse victims as being "paralyzed with fear."

In April, a father stood in front of Judge Marie Lyons in Springfield's Probate & Family Court attempting to obtain a 209A order against his ex-wife. He read a transcript of an Instant Messenger message that she had sent to him on his computer. He had even videotaped the computer screen of her words to him as evidence. Bear in mind that this woman is technically speaking an "abuse victim," as she holds a 209A protection order against him.

Please pardon the offensive language, but this is an actual transcript of her message to him:

"Hello Rick. I know your there. Don’t fucking ignore me. I know your there. I want to talk to you."

The father didn't respond because to do so would have been a criminal offense, a violation of the no-contact provisions of the 209A order. He could have been arrested and jailed for two-and-a-half years if he replied.

She continues,

"I think that you would’ve fucking learned by now not to piss me off."

She then makes statements about hurting a four-year-old son she has from another man,

"You made me hurt Dustin that night. I didn’t want to but you left me no choice. You made me do it."

"You think your going to get visitation? You better think twice about that. You’ll never see Nathan (the man's son). If you get it (the restraining order) removed, I’ll fucking kill you. You’ll never see him as long as you live. I’m going to make dam fucking sure of that."

For the record, Judge Lyons decided NOT to grant this man the protection order. The double standard used in the courtrooms in another matter entirely, and not the province of this Committee.

209A is going to have to be fixed sooner or later. Why wait any longer? Far from being a solution to domestic violence, we contend that 209A is a direct cause of real violence. Please report these bills out of committee favorably.

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S209A Reform (S952/S953) Testimony of Steve Basile
To Joint Committee on the Judiciary, May 17, 2001

209A Reform Legislation (S952 & S953) At a Glance

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