February 2, 2013

Maine batterer invokes equal protection laws

Chris Mosher, convicted of domestic violence, must be resentenced because his punishment can't be applied to women.

By BETTY ADAMS Kennebec Journal

AUGUSTA – As part of Christopher Mosher's sentence for domestic violence, he got two years of probation and was required to complete a certified batterers' intervention program.

For a woman, that sentence likely would not have been imposed. Maine lacks certified batterers' intervention programs for women, and hasn't acted on proposed changes to create them.

That's why Mosher, 42, of Litchfield, appealed his sentence, claiming his punishment violated the equal protection clauses of the Maine and U.S. constitutions.

The Maine Supreme Judicial Court recently tossed out Mosher's sentence and returned the case to the trial judge, who must determine whether "certified batterers' programs for women, permitting a two-year term of probation, are available or were available" at Mosher's sentencing.

In Kennebec County Superior Court on Friday, witnesses testified that they are not.

Scott Hess, Mosher's attorney, said the Supreme Court's decision has the potential to affect other cases, depending on the actual facts.

"The equal protection issue wouldn't exist if the certified batterers' intervention rule were gender-neutral," Hess said.

"The language that gives rise to the discrimination is black and white. Something's got to change, and I think this has been coming to a head for a while now. The judicial process, if the court rules in our favor, is going to force change."

Hess said similar cases of domestic violence can sometimes be resolved fairly because they involve agreements in which lesser jail terms are negotiated in exchange for completion of the batterers' program.

On Friday, Judge Robert Mullen heard current and former state officials and domestic violence prevention advocates testify about the absence of certified batterers' intervention programs for women, and the programs available for women who use violence.

At the start of Friday's hearing, Hess and the prosecutor, Assistant District Attorney Alisa Ross, agreed that Mosher should get one year of probation.

Then came the testimony on the more difficult question: Could Mosher be required to complete a 48-week certified batterers' intervention program as part of that probation?

Hess said no, because women cannot be subject to that requirement under rules established by the Department of Corrections.

Ross said Mosher could be required to attend the program. She gave the judge copies of court documents showing that three women in Maine have been sentenced to two years of probation and required to complete certified batterers' intervention programs, even though those programs don't exist.

No information was available on how those women met that requirement of their sentences.

After several hours of testimony, both attorneys were told to submit their arguments in writing so Mullen could rule later on the sentence.

Denise Marr testified Friday that when she retired last year as a director in the state Department of Corrections, the rules did not allow for certification of a female batterers' intervention program.

She said revisions have been proposed for the past several years but not adopted because of a series of missed deadlines, some within the department.

The proposed revisions allow for certification of batterers' intervention programs without specifying gender. The target population of the program is described as "adults who abuse their intimate partners."

Tessa Mosher – no relation to Christopher Mosher -–director of victim services for the Department of Corrections, testified that 1,316 men and 201 women were on probation for domestic violence offenses in 2012. Among the men, 374 were required to complete certified batterers' intervention programs.

Robert Rogers of Kennebec Behavioral Health testified that he directs an uncertified batterers' intervention program in Skowhegan for women who are referred by the courts and the Department of Health and Human Services.

Eight women completed the 48-week program, four of them on their second attempt, he said.

Before Friday's hearing, Deborah Shepherd, executive director of the Augusta-based Family Violence Project, said her group is interested in helping to develop a certified batterers' intervention program for women.

The nonprofit organization runs Menswork, a certified batterers' intervention program in Kennebec and Somerset counties.

Even before the Maine Supreme Judicial Court issued the December ruling that vacated Mosher's sentence, the Department of Corrections was preparing rules changes, said Jody Breton, associate corrections commissioner.

"We realized that our rules were only for men and we were going about changing that," she said.

The process for any changes will take months, she said.

Mosher's original sentence was 180 days in jail, with all but 60 days suspended, and two years of probation with the program requirement. Mosher has served the jail time and been on probation.

He testified Friday that he is enrolled in a certified batterers' prevention program in Lewiston. Hess said Mosher has completed 40 weeks of the 48-week program.

In its ruling, Maine's high court noted that it had ruled previously that "a male defendant may not be punished more harshly than a female defendant convicted of the same crime."

"Given this precedent, a regulatory scheme that permits men to be sentenced to two years of probation while women apparently may only be sentenced to one year of probation would not withstand constitutional scrutiny," the court ruled.

"If the rules aren't changed," Hess said, "then the result of the ruling would be nobody could be sentenced to these programs." 

Betty Adams can be contacted at 621-5631 or at:

badams@centralmaine.com

 

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