Due Process

Domestic violence is at the forefront of legislative news in Connecticut. Hearings are being held on ways to ensure the safety of victims of pending cases. The recent killings of a court clerk at her home in Bridgeport and a murder suicide in West Haven have brought a stark focus to the dilemma of protecting victims of relationships gone bad who are at risk for repeated violence. One of the more controversial proposals seeks to require defendants in pending cases to submit to GPS monitoring.

There can be no argument that domestic violence is epidemic. Efforts at protecting potential victims as well as controlling abusers have increased in recent years. Many organizations have been created, devoted to promoting awareness and advocating for victims.

Typically one accused of a domestic violence crime, regardless of whether there is serious injury or merely the threat of it, is required to appear at the next session of the court. A representative of the Family Relations office interviews the accused and the purported victim and provides input to the prosecutor and the judge. A criminal protective order is issued. Depending upon the seriousness of the acts alleged and the attitude of the complainant, it may be either a full protective order– requiring the defendant to remain at least 100 yards from the victim and to have no contact– or a partial protective order, which would allow contact but prohibit any threats or violent conduct. The protective order gives police the instant authority to act if a potential confrontation erupts from a violation of the order. In addition, violating a criminal protective order is, in itself, a serious crime.

While a protective order may work in many cases, a piece of paper can’t stop a knife or a bullet and one bent on violence. Advocates of abused spouses and domestic partners have called for stronger measures to attempt to ensure safety. GPS monitoring would alert police if a defendant violates the 100 yard restriction,allowing them the instant opportunity to take the offender back into custody. The issue is whether the intrusion into the privacy of one cloaked with the presumption of innocence is constitutionally warranted.

George Orwell in his classic 1984 foretold of a world where Big Brother was always watching and monitoring. Individual freedom and thought was sacrificed for what was perceived to be the greater good of society. Opponents of GPS argue that tracking the movements of one merely accused of crime intrudes on the freedoms guaranteed by the First Amendment. Proponents claim that this intrusion is minimal when contrasted with the injuries or loss of life of their loved ones who were victims of multiple violent acts committed by one already on bond. In emotionally charged prosecutions the concept of innocent until proven guilty is significantly blurred. Domestic violence and sexual crimes highlight this. Who has the greater rights at stake: the victim of crime or the one accused?

Electronic monitoring of pre-trial defendants is not a new concept. Many defense counsel have argued for lower bail for clients who are willing to wear an electronic monitoring device to ensure home confinement while awaiting trial. Some jurisdictions, in particular the federal criminal courts, will employ electronic monitoring to ensure home confinement as part of a split sentence imposed following a conviction. In each of those instances the defendant welcomes the opportunity to be released from custody at the cost of this intrusion on personal privacy.

Whatever side of the debate one is on there is one thing that is clear, the present system does not work all the time. Protective orders are to meant to limit the opportunity for emotions and violence to escalate. Whether an ankle bracelet is more effective than a piece of paper in stopping a bullet remains to be seen.

Rich Meehan is a senior partner in the law firm of Meehan, Meehan & Gavin, LLP, Bridgeport, CT. For more information on Rich or his firm you can access them at www.meehanlaw.com or www.ctdentalmalpracticelawyer.com, or email him at rtm@meehanlaw.com.