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HB #833; SB #965:  An Act Relative to Abuse Prevention

Testimony to Committee of the Judiciary

Mark Charalambous, Spokesman, CPF/The Fatherhood Coalition

May 17, 2004

I’m sure everyone in this room is familiar with the expression: “The law is an ass.”

I don’t know who coined this or why, but I think I understand its meaning: The law is a blunt instrument that cannot possibly be expected to produce just results in every case; and in some instances, blind application of the law can and does produce unjust, counterproductive, and even absurd results.  The law is an imperfect tool at best.  Surely we all agree on this.

(MGL) 209A is an example of a law that has been crafted so poorly that unjust and harmful results are not the exception, but the rule. In fact, I argue that 209A actually causes real domestic violence, and rarely, if ever, actually prevents real domestic violence.

You have been hearing for years of harm caused by 209A restraining orders—especially to fathers involved in divorce and child custody cases—both in the capacity as members of this legislative body as well as in the private practice of those of you that are lawyers.

What we have been describing anecdotally to you for over a decade now has just been confirmed by the publication in the June edition of The Journal of Family Violence, of the Fatherhood Coalition’s study of 209A restraining orders in Gardner District Court. It can no longer be denied: The legal system applies two different standards of justice to men and women, regardless of the circumstances of the “abuse” claimed by the “victims.”  Steve Basile is here today to give testimony and answer any questions you may have about his study.

Quite frankly, the law encourages women to lie about domestic violence. Our opponents sometimes say, “Why would a woman lie about domestic violence?”  Ladies and gentlemen, it would take a lot more time than I am allotted here to list in detail all the reasons why a woman would use 209A not for protection, but as a weapon to cause harm or gain legal advantage over their antagonist.   

Let’s speak plainly. We all know how divorcing couples sometimes go to legal war over such trivial things as pets, place settings or music or video collections.  When the stakes are one’s own children, and the financial child support windfall that comes with becoming their primary custodial parent, it is outright denial to pretend that no, or few, women use 209A for tactical reasons.

When a woman is granted a 209A abuse protection order against the father of her children, he automatically loses custody of them, and can be prohibited from having any contact at all with them. It is then incumbent on him to open a complaint in Probate Court to establish some kind of “visitation privileges” that are then carved out of the restraining order. This establishes the “temporary” conditions under which custody of the children will be contested.

But, as they say, temporary orders have the consistency of concrete.  Regardless of the legal defense the man may later muster to defend himself against the charges, when the divorce court judge is making the final decision on custody of the children, he/she will elect to maintain the present arrangement because to change it would be “disruptive,” and thus, “Not in the best interests of the children.”

Support for a law that so flagrantly violates parental rights, due process and the presumption of innocence, could only be justified if it were true that women never lie about domestic violence. 

The real solution to 209A and addressing domestic violence requires the complete scrapping of the present law and rewriting it from scratch.  But at this time, what we are attempting to do is patch up the most egregious provisions of it to curtail the most flagrant abuses. We ask you to carefully review this bill and recommend it for passage. When you examine it carefully, you will see that none of the provisions hamper the ability of true victims to get legal protection.  Those that will benefit from these changes are falsely accused fathers, their children, and also real victims—male and female—of domestic violence, once spurious and fraudulent use of the law is eliminated.

Thank you