Massachusetts District Attorneys Association the massachusetts prosecutors’ manual: domestic violence & sexual assault

4.INITIATING THE PROSECUTION

4.1. RESOLVE DUAL ARRESTS AND DUAL RESTRAINING ORDERS

4.1.1.Standards for Mutual Restraining Orders

Mutual Restraining Orders are destructive and dangerous and may be issued only if the court made specific written findings of fact.

Some batterers apply for restraining orders against their victims. Some batterers, upon the arrival of law enforcement at a domestic violence crime scene, claim they were only acting in self-defense and insist the victim be arrested for assault. In both examples, the batterers use the portion of the criminal justice system that was specifically designed to assist domestic violence victims as a means of further victimizing them. The effect on the victim can be devastating, as well as dangerous. Dual arrests and mutual orders reinforce a batterer’s sense of power, control, and arrogance; they reinforce an abuser’s allegations that the victim is responsible; and they increase the victim’s own sense of blame. Having called for help, a victim ends up in a more precarious position than where she started.

The National Council of Juvenile and Family Court Judges recommends that mutual orders simply not be issued:
Issuance of mutual restraining orders raises issues of due process, enforcement, and gender bias. This practice has emerged as a major problem in some areas, and has been cited in several states’ gender bias reports as evidence of continued bias in the court’s response to family violence. ... The message to the batterer is that such behavior is excusable, was perhaps provoked, and he or she will not be held accountable for the violence. Victims who have not engaged in violent behavior are confused, humiliated, and stigmatized when such orders are issued against them. If both parties are alleged offenders, there should be two separate applications, hearings, findings of good cause, and separate orders issued.
Family Violence Project, Family Violence: Improving Court Practice, Recommendations from the National Council of Juvenile and Family Court Judges 24 (Reno, Nevada 1990).,
The problem has been addressed by the Massachusetts legislature. Mass. Gen. Laws ch. 209A, § 3 states that:
(a) court may issue a mutual restraining order or mutual no-contact order pursuant to any abuse prevention action only if the court has made specific written findings of fact. The court shall then provide a detailed order, sufficiently specific to apprise any law officer as to which party has violated the order, if the parties are in or appear to be in violation of the order.
The problem has also been addressed by the Supreme Judicial Court: In Renee Jones v. Justices of the West Roxbury Division of the District Court, No. 93-0009, Supreme Judicial Court, Single Justice (March 24, 1993), Justice Wilkins vacated a reciprocal order that had been entered by the District Court judge:
The [District Court] judge made no specific findings of facts as the statute requires as to mutual restraining orders (G.L.c.209A, § 3). The judge’s general practice of issuing reciprocal orders in G.L.c. 209A cases is inappropriate. That is the sole reason that he issued an order against Ms. Jones. The order entered against Ms. Jones was unlawful for all the reasons stated above.
The Trial Court’s Guidelines for Judicial Practice: Abuse Prevention Proceedings (December 2000), explicitly cite ch. 209 § 3 and its requirements for “specific written findings of fact,”and for “a detailed order, sufficiently specific to apprise any law officer as to which party has violated the order.” Guideline 6:07 at 106.
Consecutive orders, where the same parties reverse roles in different courts, should not be considered “mutual orders,” but 1) the court in the second action should question the plaintiff, if it suspects a retaliatory motive, and 2) where no substantial likelihood of immediate danger exists, the court may refer the plaintiff in the second action back to the court that issued the first order to seek a modification of that first order. Id.
If a second order is sought in the same court that issued the first, the matter should be deemed a motion to modify the first order. If, at the hearing, relief to both parties is warranted, mutual orders may be issued (with “specific written findings of fact” and with the “detailed order”).
The Commentary following Guideline 6:07 is forceful and clear. If the judge(s) in your court are not following the requirements of ch.209A s 3, consider citing the guideline and its subsequent commentary to the Court:
The court has a responsibility to decide who is the primary aggressor, who is in danger from whom, and who needs the court’s protection. Only in the situation where each party is genuinely in danger from the other and proves that circumstance by a preponderance of the evidence should a mutual order be issued.
If such an order is issued, the police must have clear instructions about how it is to be enforced. For example, an order requiring A to stay away from B’s address and B to stay away from A’s address can be enforced. However, an order which orders both A and B to stay fifty yards away from one another cannot be enforced readily, because the responding officer often will not be able to say who approached whom.
Guidelines ,Id. at 107, Commentary, 6:07.

4.1.2.Discerning the Dominant Aggressor

Your local police departments should be well trained to discern the dominant abuser/aggressor at the scene. If you are called in at the investigation stage of a case, or if the police fail to make the determination, you must also be prepared to make this determination.

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  Determine if there is sufficient evidence to conclude that one of the parties is the dominant aggressor:
  

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  Who appears to be in fear?
  

(and often, more visibly or vocally upset)

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  Who appears to be in control?
  

(and often, more calm)

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  Is one party in fear of the other because of past or present threats?
  
• 
  Is there a history of abuse perpetrated by one party against the other?
  
• 
  What is the level of injury for each party?
  

(Though injury alone cannot determine who is the dominant abuser. You must distinguish between self defense, fighting back, and aggressive actions.)

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  What is the level or type of violence alleged by each party?
  
• 
  How do the parties talk about each other?
  
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  How did/do the parties talk to law enforcement personnel?
  
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  Who poses the most threat of danger to the other?
  
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  Who is accepting responsibility or blame for the violence?
  

(Victims using self defense will often admit to their use of violence, but may not know to call it self defense. “Self defense” is the right to use that amount of force that is reasonable and necessary to defend themselves, their property or a third party.)

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  Determine if any injuries may be recognized as injuries upon an aggressor, caused by the victim acting in self defense, including:
  

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  Scratches to the back of hands, wrists, or arms (as the aggressor held the victim with his arms, she clawed to get away)
  
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  Scratches to the aggressor’s face or neck (as the aggressor used his body to subdue the victim)
  
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  Bite marks on the inside of the aggressor’s arms (may indicate the aggressor strangled the victim from behind)
  
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  Bite marks on the aggressor’s chest or neck (may indicate the aggressor strangled the victim in a head lock against his chest)
  
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  Groin or kicking injuries
  
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  Indications of hair being pulled
  
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  Injuries caused by any hard object or weapon: a person who is being assaulted or is about to be assaulted may realize that they are not a match for the violence that is about to be used against them and will often use a weapon or object as an “equalizer”
  

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  Determine if any injuries may be recognized as injuries of a victim, caused by a dominant aggressor’s aggressive actions:
  

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  Injuries located predominantly on the back, buttocks, and back of the legs (indicating the victim was in a defensive “fetal position” posture)
  
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  Injuries to the top or back of the head
  

Only if one of the two people was not acting in self-defense, and only if one of the two people was not the dominant/significant aggressor are mutual arrests warranted.

4.1.3.Legal Standards Regarding Self-Defense

One may use reasonable force to defend his person. Commonwealth v. Kendrick, 351 Mass. 203, 211 (1966). Whether force used in self-defense is reasonable is decided by an objective standard. Commonwealth v. Harrington, 379 Mass. 446, 450 (1980).

Reasonable force may include deadly force, which is justified where a person:

1. 
   has reasonable grounds to believe that he is in imminent danger of death or serious bodily harm and can save himself only by resort to deadly force;
   
2. 
   has availed himself of all reasonable means of avoiding combat; and
   
3. 
   only uses such force as is reasonably necessary.
   

Commonwealth v. Harris, 376 Mass. 201, 208 (1978). “This rule does not impose an absolute duty to retreat regardless of personal safety considerations; an individual need not place himself in danger nor use every means of escape short of death before resorting to self-defense.” Commonwealth v. Pike, 428 Mass. 393, 398 (1998).
Non-deadly force may be justified by a lower level of danger than the right to use a weapon – a reasonable concern for personal safety as opposed to fear of death or serious injury. Commonwealth v. Bastarache, 382 Mass. 86, 105 (1980). To determine if non-deadly force is justified as self-defense, the fact finder must consider “whether:

1. 
   the defendant had a reasonable concern for his safety,
   
2. 
   the defendant pursued all possible alternatives to combat, and
   
3. 
   the force used was no greater than required in the circumstances.”
   

Commonwealth v. Haddock, 46 Mass. App. Ct. 246, 248 (1999). Where a defendant takes up a weapon in self-defense, whether the use of the weapon constituted deadly or non-deadly force is a question for the finder of fact. Id.
In assessing a claim of self-defense the finder of fact should consider the relative size and capabilities of the combatants, the respective weapons used, and any opportunities to retreat. Commonwealth v. Kendrick, 351 Mass. 203, 212 (1966). The jury may also consider the:

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  Defendant’s reputation for peaceableness, Commonwealth v. DeVico, 207 Mass. 251, 253 (1911),
  
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  Relative extent of the combatants’ injuries, Commonwealth v. Jardine, 143 Mass. 567 (1997),
  
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  Threats of violence made by the victim against the defendant (whether the defendant was aware of them or not), Commonwealth v. Edmonds, 365 Mass. 496, 500 (1974), and
  

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  Reputation of the victim for violent behavior, if known to the defendant at the time of the assault, Commonwealth v. Rubin, 318 Mass. 587, 588 (1945).
  

When the theory of self-defense is raised and the identity of the first aggressor is in dispute, evidence of the victim’s aggressive and violent character is admissible, regardless of when the defendant learned of it. Commonwealth v. Adjutant, 443 Mass. 649 (2005) (The evidence must be in the form of specific acts of prior violent conduct that the victim is reasonably alleged to have initiated. Reputation evidence, which in the Court’s view, is “often ‘opinion in disguise,’” will not be admissible in these circumstances. “We favor the admission of concrete and relevant evidence of specific acts over more general evidence of the victim’s reputation for violence.” Id.

However, evidence of specific instances of violent conduct by the victim is not admissible to prove a propensity for such conduct. Commonwealth v. Sullivan, 17 Mass. App. Ct. 981 (1984).

4.1.4.If Necessary, Nolle Pros

If an unsupported, unfounded, mutual abuse case has been handed to you, it is your duty to ‘nolle pros’ the case against the victim.
As an officer of the court, you are bound to further justice, and not perpetuate or participate in a sham prosecution. Prosecutorial discretion lies fully within the District Attorney’s Office; “[t]he power of a prosecuting officer to enter a nolle prosequi is extensive within its sphere ...[and] is absolute in the prosecuting officer from the return of the indictment up to the beginning of trial, except possibly in instances of scandalous abuse of authority.” Commonwealth v. Dascalakis, 246 Mass. 12, 18 (1923). Where it is appropriate, don’t be afraid to effectively employ your discretionary power. Of course, you must proceed completely within the policies of your office – and most offices require permission from your supervisor. Also, you must state your reasons in the nolle pros. Mass. R. Crim. P. 16(a); Commonwealth v. Sitko, 372 Mass. 305 (1977).
In a domestic violence assault and battery case handled by J. Thomas Kirkman, Chief of the Domestic Violence Unit of the Cape and Islands District Attorney’s Office, the defendant, after being arraigned, brought a complaint against his victim. The defendant stated outright that his lawyer told him if he brought a complaint against the alleged victim, his own case would “go away”. No evidence supported the defendant’s claim that the victim assaulted him. Kirkman entered a nolle prosequi for lack of sufficient evidence. The defendant sought interlocutory relief before a single justice pursuant to M.G.L c. 211 s. 3, alleging abuse of authority by the Commonwealth and gender-biased selective prosecution.
Kirkman argued: (1) the defendant was not properly before the court; (2), the defendant made no requisite showing of a scandalous abuse of the Commonwealth’s authority to enter a nolle prosequi; (3) the defendant made no requisite showing of a pattern of selective prosecution on the part of the Commonwealth; and (4) the defendant made no showing of an interference of any of his constitutional rights. Justice Wilkins denied the defendant’s petition for relief, Commonwealth v. Hardy, No. 95-0208, Supreme Judical Court, Single Justice (May 31, 1995).
In his memorandum in opposition to the defendant’s petition, Kirkman set forth the standards a defendant must meet in demonstrating selective enforcement, and argued the defendant made no showing to meet any of these factors:
“It is well established “that prosecutors and other law enforcement officers enjoy considerable discretion in exercising some selectivity for purposes consistent with the public interest.” Commonwealth v. Franklin, 376 Mass. 885, 894 (1978) ...Because criminal prosecutions are presumed to be undertaken in good faith, without intent to discriminate, the defendant bears the initial burden of demonstrating selective enforcement. Franklin, 376 Mass. at 384. In order to meet this burden, the defendant must present evidence which raises at least a reasonable inference of impermissible discrimination. Franklin, 376 Mass. at 384. That inference may only be made once the defendant has satisfied the following factors:

1. 
   A broader class of persons than those prosecuted has violated the law.
   
2. 
   The failure to prosecute other persons in the class was consistent or deliberate.
   
3. 
   The decision not to prosecute was based on an impermissible classification. Franklin, 376 Mass. at 894-5.”
   

Kirkman also argued that he had a duty to enter the nolle pros: “In the present case, the Commonwealth not only had the right to determine which of the two defendants should be prosecuted, it had the duty. The duty arises from the serious responsibility with which a prosecutor is charged and the powers inherent in that responsibility.” He cited the SJC’s affirmation of the prosecutor’s discretionary powers:

The powers of a district attorney under our laws are very extensive. They affect to a high degree the liberty of the individual, the good order of society, and the safety of the community. His natural influence with the grand jury, and the confidence commonly reposed in his recommendations afford to the unscrupulous, the weak or the wicked incumbent of the office vast opportunity to oppress the innocent and to shield the guilty, to trouble his enemies and to protect his friends, and to make the interest of the public subservient to his personal desires, his individual ambitions and his private advantage. The authority vested in him by law to refuse on his own judgment alone to prosecute a complaint or indictment enables him to end any criminal proceeding without appeal and without the approval of another official. Powers so great impose responsibilities correspondingly grave. They demand character incorruptible, reputation unsullied, a high standard of professional ethics, and sound judgment of no mean order. Profound learning and unusual intellectual acumen, although eminently desirable, are less essential. A District Attorney cannot treat that office as his selfish affair. It is a public trust. The office is not private property, but is to be held and administered wholly in the interests of the people at large and with an eye single to their welfare.”
Attorney General v. Tufts, 239 Mass. 458, 489 (1921).