Domestic Violence
In matters of domestic violence, it is not uncommon for victims who have been brutalized by their partners to withdraw their restraining orders, refuse to cooperate with prosecutors, refuse to testify at trial, deny the abuse occurred, or construct elaborate explanations for their bruised bodies and broken bones. There are many legitimate reasons why victims retreat from confronting their abusers, including well-grounded fears of retaliation and an escalation of violence, a loss of financial support, and becoming homeless.
There are many instances, however, where there is ample independent evidence - - witnesses, statements, medical records, photos - - of the defendant's violence and the District Attorneys can prosecute the defendant without the victim's participation. Prosecution is a matter of public safety, as a successful prosecution can result in a period of incarceration, giving the victim time to seek safety, or can result in a period of probation with mandatory counseling, to help prevent a recurrence of violence.
Unfortunately, the District Attorneys are often thwarted in their efforts to prosecute domestic violence cases by a Massachusetts law called the "accord and satisfaction”, which currently permits judges to dismiss cases of domestic violence over the Commonwealth's objection.
The accord and satisfaction is a statutory device employed in the courts for over one hundred years. Intended as a vehicle to quickly resolve minor civil matters, the law is used to facilitate the dismissal of minor criminal charges where both the victim and defendant agree. While many states have similar provisions for resolving misdemeanor cases, Massachusetts remains the only state in the country where this device is employed to dismiss criminal domestic violence cases over the Commonwealth's objection.
It is a core tenet in domestic cases that victims should never be put in a position of having to "bargain” or negotiate with their abuser; the critical flaw with the accord and satisfaction is that it places the burden on the victim of deciding whether the criminal case will proceed or be terminated. Indeed, the Trial Court's own internal guidelines specifically bar this practice: "a case involving family violence should not be dismissed over the prosecution's objection on an accord and satisfaction.” In criminal domestic violence cases, the defendant is invariably represented by counsel; the victim almost never has an attorney. Batterers, represented by counsel, utilize the accord and satisfaction to effectively threaten or coerce their victims into dropping criminal charges.
The District Attorneys unanimously support Senator Cynthia Stone Creem's bill (below) that would bar the use of the accord and satisfaction as a tool for resolving domestic violence cases.
An Act Relative to Punishment for the Crime of Domestic Violence
SB 902
Filed by Senator Cynthia Stone Creem
Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:
SECTION 1.
Section fifty-five of chapter two hundred and seventy-six of the General Laws, as appearing in the 2000 Official Edition, is hereby amended by inserting in line five after the words "or with intent to commit a felony” the following:-"or would constitute domestic abuse as defined in section one of chapter two hundred and nine A or a violation of an order issued pursuant to section three, four or five of chapter two hundred and nine A or section thirty-four B or thirty-four C of chapter two hundred and eight,”