Sunday, November 8, 2009

Review of “The New Star Chamber: The New Jersey Family Court and the Prevention of Domestic Violence Act” by David N. Heleniak. Part 2 of 2

Last week I started a discussion on David N. Heleniak’s text on the terrible legal implications of New Jersey’s “Prevention of Domestic Violence Act.” Today I will focus on his concerns about the constitutionality of the Act. At a 1995 seminar for municipal judges, Judge Richard Russell of Ocean City, N.J., was caught on tape giving the following advice:

“Our job is not to become concerned about the constitutional rights of the man that you're violating as you grant a restraining order, (…) They have declared domestic violence to be an evil in our society. So we don't have to worry about the rights."

Judge Russell’s attitude reflects the general attitude that many family courts judges have towards men. This blatant disregard of constitutional rights has a clear expression in the Act under discussion. Among the deficiencies that make the Act unconstitutional are:

1 - The lack of notice: The Act requires that a summary hearing has to be held within ten days of the filing of the complaint, to determine whether the allegations in the complaint occurred. Ten days is not enough time to prepare a defense. A wife willing to commit perjury can spend years with her lawyer planning to file a domestic violence complaint at an opportune moment in order to gain the upper hand in a divorce proceeding, while the accused husband has only ten days to get ready.

2 - The denial of the right to free counsel: The Act does not provide for the free assistance of counsel for poor defendants, which added to the fact that they have only ten days to prepare their defense, reduces dramatically their chances of a fair trial.

3 - The denial of the right to take depositions: The deposition is usually the most important discovery tool during a trial. During deposition, a defendant's attorney can corroborate the veracity of the plaintiff’s assertions. In a restriction order hearing, a defendant is deprived of this discovery tool because, according to the Chancery Division, allowing the “…alleged perpetrator to depose a victim, (…) perpetuates the cycle of power and control whereby the perpetrator remains the one with the power and the victim remains powerless.” Defendant is therefore unable to anticipate all of the things the plaintiff says at the hearing, is unable to analyze her version of the events alleged in the complaint prior to the hearing, and is unable to test the veracity of her testimony.

4 - An improper standard of proof: The Penal Code treats domestic violence complaints as something other than a criminal offense. The result is that family courts can circumvent the protections normally accorded for an accused in a criminal case, including the right to due process of law, and to a trial by jury.

5 - The denial of the right to a trial by jury: The trial by jury is necessary for preventing the abuse of judiciary power. The fathers of the constitution, reluctant to entrust plenary powers over the life and liberty of the citizen to one judge or to a group of judges, insisted that the truth of every accusation should be confirmed by the suffrage of his equals. In our constitutional framework, the jury is expected to serve the people by checking the judge, by protecting us against arbitrary actions by courts. By denying the defendant of his right of a jury trial, the Act denies him of one of the most basic constitutional rights.

In summary, the Act is unconstitutional because it denies defendants due process of law. The Fourteenth Amendment of the United States Constitution provides that no State shall "deprive any person of life, liberty, or property, without due process of law." But as we have seen, the Act does precisely that.

And as Heleniak writes, the protection of women does not justify the surrender of civil rights.

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