Sunday, March 9, 2014
AUGUSTA -- As part of Christopher Mosher's sentence on a charge of domestic violence, he got two years probation and was required to complete a certified batterers' intervention program.
If Christopher had been a Christina, however, that sentence likely would not have been imposed. The state 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 to 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 they were not.
Scott Hess, Mosher's attorney, said the decision by the law court has the potential to affect other cases, but that it depends on the facts in individual cases.
"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. I think there will be more motivation for the department to change the rule; otherwise, men can't be sentenced to these programs."
Hess said similar cases of domestic violence can sometimes be resolved through plea bargains in which a lesser jail term is negotiated in exchange for agreeing to the batterers' program.
Judge Robert Mullen on Friday heard current and former state officials and domestic violence prevention advocates testify about the absence of certified batterers' intervention programs for women and what programs there are for women who use violence.
At the outset of the hearing in Kennebec County Superior Court, 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 same requirement under rules established by the Department of Corrections.
Ross, however, said Mosher could be required to attend the program. She gave the judge copies of court documents showing three women in the state have been sentenced to two years of probation and required to complete certified batterers' intervention programs, even though those programs don't exist. There was no information available on how those women completed that requirement of their sentence.
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 from the state Department of Corrections, the rules did not allow for certification of female batterers' intervention program. She also said revisions have been proposed for the past several years but not adopted because of a series of missed deadlines, some within the department itself.
The proposed revisions allow for certification of batterers' intervention programs without specifying gender. Instead, 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. Of those totals, 374 of those men were required to complete certified batterers' intervention programs.
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