Wednesday, April 16, 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.
Robert Rogers, of Kennebec Behavioral Health, testified he directs an uncertified batterers' intervention program in Skowhegan for women referred by the courts and the Department of Health and Human Services.
Eight women successfully 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 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 its ruling in December that vacated Mosher's sentence, the Department of Corrections was preparing rules changes to the program, said Jody Breton, associate commissioner in the corrections department.
"We realized that our rules were only for men and we were going about changing that," she said.
Any changes will take months to go through the process, 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 initial jail time and has been on probation.
He testified Friday 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 previously ruled 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 many only be sentenced to one year of probation would not withstand constitutional scrutiny," the court ruled. "
The court noted that the Department of Corrections "has promulgated rules that authorize (certified batterers' intervention) programs only for men, thus making two-year terms of probation available for men only." The program is defined as "an educational program for men" and "designed specifically to intervene with court-referred adult men who are abusive to their intimate women partners."
"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 -- 621-5631