February 5, 2013 – HB502 and HB503
Criminal Justice and Public Safety Committee Hearing
HB502 – An Act relative to protection of persons from domestic violence.
Sponsors: Representatives Itse, Comerford, Ulery, and Weyler.
Note: No women sponsored this bill.
A summation of both bills from the NH Coalition Against Domestic and Sexual Violence:
HB 502 would prohibit a law enforcement officer from arresting an abuser unless the officer witnesses the abuse or the victim goes to court to file a criminal complaint against the abuser. In addition this bill would change NH’s “presumptive arrest” policy that states that officers should arrest an abuser in cases where he/she has probable cause to believe that a person has committed abuse.
HB503: Would prohibit a law enforcement officer from arresting an abuser unless the victim files, or has previously filed, a criminal complaint. In this case, even if the officer has witnessed the abuse they cannot make an arrest. In addition, it takes away law enforcement’s ability to arrest for a violation of a stalking or domestic violence protective order until the victim has filed a criminal complaint with the court. And finally, it would repeal the current directive to officers to “use all means within reason to prevent further abuse” UNLESS the officer has been notified that the victim has filed a criminal complaint. This includes the directive to remove deadly weapons from the possession of the alleged abuser, to trainsport the victim and their children to a safe place, and to give them notice of the rights and remedies available to them under the law.
Lead sponsor, Rep. Dan Itse testified that he introduced this bill to comply with the NH Constitution. (We will come back to this) He also said that 502 and 503 were supposed to be one bill, but legislative services “didn’t get it quite right.”
Noted Constitutional scholar Itse tells us that according to the NH Constitution, in order to make an arrest, there has to be an “oath or an affirmation.” (Itse liked that particular phrase, and repeated it as often as he could, during his testimony.)
Directly from my notes: “For a Constitutional scholar, Itse is not an eloquent or even comprehensible speaker.”
HB502 changes the wording of the law: “When the peace officer has probable cause to believe that the persons are committing or have committed abuse against each other, the officer need not arrest both persons, but should arrest the person the officer believes to be the primary physical aggressor. He wants to change should to may. Why? Because he’s talked to many police officers who felt they made wrong arrests because they HAD to, because of the wording of the law.
He also referenced the Committee for the Redress of Grievances, and noted that in family disputes an accusation of domestic violence is often made, but there is no evidence.
Next we heard from co-sponsor Rep. Al Baldasaro:
“I’ve been a big fighter for domestic violence in the six years I’ve been up here.”
“They play to the police to get the upper hand in a divorce.”
“We all support and protect domestic violence.”
Al sez people were arrested on hearsay! There should have been some criminal document filed, especially “if nobody seen it.”
Elizabeth Woodcock, Assistant NH AG – opposes the bill
(I said we’d be revisiting the issue Itse raised of complying with the constitution:)
Attorney Woodcock testified that in Article 19 of the NH Constitution the warrant requirement is for searching someone’s house, NOT making an arrest, which police have always had the authority to do.
Take that, Noted Constitutional Scholar.
Woodcock went on to say that this bill would change and weaken our strong domestic violence laws and threaten the safety of everyone who lives in the house.
In questioning by the committee, Woodcock was asked about line five of the bill, which reads, “Or if a criminal complaint has been filed.” Woodcock answered, “I don’t know what that means.” Committee member Rep. Steve Vallaincourt said, “I don’t know what that means. I’m not a lawyer, but I see you don’t, either.”
A former police officer (who was doing a poor job of concealed carry) testified that part of the problem with domestic violence complaints is that they are a weapon. He told a long story about a cheating wife who was fooling around with a cop, who gave her a gun to protect herself, and lots of corrupt other cops, judges, etc. He was falsely accused and arrested for domestic violence and lost custody of his kids. Everyone involved in this story is a corrupt liar and out to get him.
Rep. Richardson from the committee: Can you explain how this bill changes that?
ExCop could not. (Because it does not.)
Rep. Richardson: I can’t see how this bill would change your situation, the situation you described.
Again, ExCop had no good answer for this – because it wouldn’t change anything. Finally he’s angry enough to stop being careful with his pronouns, and tells us that it’s the man who gets the short stick in these situations.
Sandra Matheson, Director of the State Office of Victim/Witness Awareness brought copies for the committee of the 2012 Domestic Violence Report for the state of NH, which looks at fatalities for the last decade.
50% of the homicides in NH are the result of domestic violence.
92% of the murder/suicides are the result of domestic violence.
Women are victims in these murders 62% of the time, unless it is a partner homicide. In that case, women are the victims 86% of the time.
Ms. Matheson: “When victims are not assured safety, lethality can be the result.”
Rep. Warden: Of those homicides, how many had previous arrests for DV?
Matheson: Not that many, but 40% had a history of DV incidents.
MRA (name changed for privacy) “I’ve been arrested for DV a couple of times on false charges. He was convicted of DV, and lost his house and kids in a divorce. He was arrested again for DV in 2011, on probable cause, but there was no signed affedavit. He had a lot of paper with him, and cited the group Save Services as a source of REAL statistics.
SAVE is one of the many sites devoted to attempting to prove gender parity in the case of DV. Some sites actually “prove” that men are more often abused than women. These are sites frequented by Men’s Rights Activists, who blame feminism for their not being able to slap their wives around any more.
He aired his whole story, a story that was heard by the Committee for the Redress of Grievances last session.
Finally he got to the bill, and joined the debate over should vs. may. He’s on the may side. States do not prosecute people for giving false evidence. He lost his kids, his house, and everything because of false accusations.
Retired Police Chief Timothy Russell continues to teach DV law at the police academy. He stated that the issue of determining who the primary physical aggressor is not that difficult. He went on to give a thorough treatise on how the law works, what the wording means, and how the wording applies.
Rep. Ginsberg – concerned by all the stories of arrests made on the basis of false accusations.
Chief – this happens very, very infrequently.
Chief: Our domestic violence laws are some of the best in the country. Our system is not broken, and there is no need to fix it.
Patricia LaFrance: Hillsborough County Attorney
We prosecute people who make false reports.
Sgt. Jill Rockey of the Major Crimes Unit:
40-60% of abusers also batter children. Contrary to testimony, the incidence of false reports is very, very small. As for should v. may, police do not make arrests every time as it stands. No need to change.
Chris Casko: NH Dept of Safety:
Opposes bill, will compromise victim safety.
On to HB503
Lead sponsor Rep. Itse says it is the flip side of HB 502. After a little more incoherent rambling, the committee chose to ask him no questions.
Chris Casko: again in opposition.
MRA: Supports 503. “It all comes down to false allegations.” His voice is shaking he’s so upset. He’s heard attorneys and police officers minimize false allegations. They give out restraining orders like candy, mostly for false accusations. He then went on at length about a number of national cases.
“The incentives to make a false allegation are huge – all they care about is the money.”
Committee Chair asks him, “Were you ever convicted of DV?”
The answer is yes. But it’s not his fault because he pleaded nolo on the advice of his lawyer. All of his friends, family, and the people in his church know his story, but none of them would come and testify even though he asked them all.
HIS statistics are accredited (the ones from SAVE) but the chief and all those lawywers didn’t bring statistics. (Unless you count the big report on a decade of DV in NH….but who is counting?)
“MEN ARE DYING. YOU GOTTA DO SOMETHING.”
Also – none of his testimony addressed the bill.
Elizabeth Woodcock, Assist. AG – in opposition:
Line #5 removes probable cause. This is a very serious change in the law.
She went on to give us all a lesson in nolo contendere and personal responsibility.
Tammy (name changed to protect the individual) passed the committee a picture of her stepson, and wept as she told them all about him, and how her husband has been falsely accused of physical and sexual abuse. He’s suffered, he has lawyer fees, he can’t get work. The husband was not present.
Tammy’s testimony never addressed the actual bill.
After 2 hours of this, I went out into the hallway for some fresh air. Soon after, the angry ex-cop, his female companion, MRA and his female companion, and Tammy all came out into the hall, where Rep. Jeffrey Oligny was waiting for them. He hugged Tammy and told them all what a great job they’d done. These folks were straight from the disbanded Committee for the Redress of Grievances, brought in to create some emotional chaos. Not one of them presented any testimony that was actually relevant to the bill. It as all just a sideshow – Itse and Co. thumbing their collective noses at their fellow legislators and all of the professionals who took time to be there to offer up serious testimony against these nuisance bills.