Friday, October 19, 2007

Dismissing domestic violence?

Earlier this month, Anne Arundel County Judge Paul Harris acquitted a man of domestic assault because he was unsure the woman did not consent to the attack.

At the trial, police testified to witnessing the assault at a Laurel gas station in June 2006, but the prosecution couldn’t find the victim to testify. Harris said the couple could have hypothetically been engaging in sadomasochism, and that the jury instruction on the charge required proof that the victim did not consent.

What do you think about the decision?

-CHRISTINA DORAN, Assistant Legal Affairs Editor

5 comments:

Bruce Godfrey said...

I don't have as much of a problem with the verdict as with the learned judge's unnecessary comments thereafter. The issue is whether the state has the burden of proving lack of consent, rather than it being an affirmative defense to assault. While I practice criminal law I won't claim to have the Maryland jurisprudence on this point conveniently at hand. MD's assault statute derives from the common law of assault and battery.

If it's an affirmative defense like self-defense, the judge's ruling was in error. If lack of consent is an element of the offense, then still one would think that the fact s and circumstances of the strike would lead a reasonably cautious person to conclude that it was almost certainly, i.e. beyond a REASONABLE doubt, not a form of masochistic sexual game-playing.

In any event, the judge's fanciful speculation about sadomasochism puts the bench into disrepute.

Anonymous said...

I would be interested in reading the opinion. Does the judge really entertain the possibility that the violence, committed at a gas station and presumably in full view of the public, was anything other than assault?

I could understand if the judge felt that too few elements were established by the prosecution and he threw sadomasochism out there as an ill-conceived hypothetical alternative, but if it was presented as an affirmative defense then I have to agree with Bruce.

Btw, in case it wasn't clear already, I don't practice any criminal law and know little about it that I didn't learn my 1st year of law school or from Prof. Whitebread during BarBri. What is the corpus delicti equivalent in other criminal cases? For instance, if the police witnessed a rape but the victim fled and couldn't be found, how is the rape established? A dumb question I am sure, but I am nonetheless curious.

-Russell

Bill Blackford said...

I think the focus here should be on the prosecution's failures and not the judge's comments. To be sure, domestic violence is a horrible, destructive force that should be punished. However, we live in a democracy that is grounded in a suspicion of the government and, therefore, put a high burden on that institution before it deprives a person of their freedoms (and brands them a criminal, thereby taking away certian rights (e.g., the right to serve on a jury)). In this case, the prosecution had no proof. They had the assertions of a police officer and nothing else. Now, no matter how credible the officer may have been, there are big gaps in the necessary proof to say, without reservation, that the man committed a criminal assault.

Judge Harris' comments are merely gave an illustration of the failure by the state to prove its case. He was not saying that he knew this woman was somehow consenting to this alleged assault. The State bears a heavy burden and the rule of law is preserved by men and women like Judge Harris who hold each party to their burden of proving their case.

XLegalLady said...

It seems in my experience that judges make any number of inappropriate comments. Perhaps more attorneys should report the inappropriate comments.

Anonymous said...

YES PLEASE!
LAWYERS NEED TO TALK MORE OUTSIDE OF THE GOOD OL' BOYS CLUB!
I am tired of the ideal that judges know all and are perfect...
I was before this judge in a family law case and more then one comment was made from him in distaste. Not to mention the fact that he slept through most of the case. I often wonder if the cameras were on in the court room those days????
His comments in this case and his ruling do not surprise me. They only make me feel sane in knowing I wasn't the only one victimized by this man's flamboyant tongue!
However I am still saddened by the fact that he let a man go with evidence so strongly represented that he hit the woman. That is what this man was in court for, right?