Two
Items This Issue:
ITEM I. How much force can
you use on a child to discipline--SJC
has cryptic opinion
ITEM II. Boston Herald Opinion
Piece on Evidence in Domestic
Violence Cases
ITEM II: Response to Boston
Herald Opinion Piece by Deborah
Sirotkin Butler, Esq.
*Tidbit of info: While the
numerous papers had a press
release on recent CHINS case
and the right to trial that
was the subject of our last
e-mail, few ran a story on
it. This is a major case about
due process rights when the
government is taking your
kids. Today, the Berkshire
Eagle ran a totally meaningless
story about an age discrimination
lawsuit against GE in the
state of Connecticut. Really,
what story is more important?
___________________________________________________________________
ITEM I. How much force can
you use on a child to discipline--SJC
has cryptic opinion
The Massachusetts Court of
Appeals provides some insight,
but leaves many questions
unanswered.
http://www.socialaw.com/slip.htm?cid=
464&sid= 9
Well, can you use reasonable
force to discipline your children?
Here is the SJC's crypitc
response, and you be the judge:
"The Legislature has
not chosen to recognize or
approve a parental right to
use force in disciplining
a child, and we know of no
case in Massachusetts that
specifically recognizes such
a right, although there are
allusions to this parental
right in our cases. . . .
In Commonwealth v. O'Connor,
407 Mass. 663, 667 (1990),
the court discussed such a
right, noting, however, that,
as of that time, "[n]o
Massachusetts decision or
statute grants parents or
others a right to use reasonable
force in disciplining a child."
The court noted other jurisdictions
where a common-law principle,
that a parent or one standing
in loco parentis is "justified
in using reasonable force
on the child 'for the purpose
of safeguarding or promoting
the child's welfare,'"
is recognized. . . . More
recent cases have confirmed
the existence of the common-law
rule in some States. . . On
the civil side, the defense
is also recognized. See ibid.,
quoting from Restatement (Second)
of Torts § 147(1), at 265
(1965) ("A parent is
privileged to apply such reasonable
force . . .
upon his child as he reasonably
believes to be necessary for
its proper control, training,
or education").
The court basically went on
to rule that since the mother's
conduct was so over-the-top,
they did not have to settle
the question whether there
is a right to use reasonable
force with one's child, because
there was no way that the
behavior could be reasonable.
RINALDO'S NOTE: I don't know
what the court means by mere
"allusions." The
court then goes on to state
that there are DSS cases where
reasonable force was held
not to constitute abuse. The
court said:
"In Cobble v. Commissioner
of the Dept. of Social Servs.,
430 Mass.
385, 387-388, 395 (1999),
the court ruled that a parent's
spanking of a nine year old
child with a leather belt,
delivering one or two (and
no more than five) blows to
the child's fully clothed
buttocks in a nonviolent and
controlled manner and not
in anger, and leaving slightly
pink marks with no bruising,
combined with an explanation
of the reason for the punishment
and expressions of caring,
did not constitute abuse as
defined in the department
of social services regulations
as set out in 110 Code Mass.
Regs. § 2.00 (1996). The court
noted that the regulations,
promulgated pursuant to authority
granted in G. L. c. 119, §
51B(8), "clearly draw
a line between permissible
physical discipline and prohibited
abuse," as the regulations
clearly specify the types
of physical injuries that
may not be inflicted on children.
Cobble v. Commissioner of
the Dept. of Social Servs.,
430 Mass. at 395."
How is this merely an "allusion"
to this parental right? Moreover,
isn't the right implied when
exacting legislation regarding
abuse is promulgated, without
changing the common law? Also,
the court sort of ignores
English Common Law, WHICH
HAS HISTORICALLY BEEN HELD
TO BE THE APPLICABLE CASE
LAW WHEN THERE IS NO CASE
LAW.
Also, the court does a sort
of phoney bologna move: faced
with legislative and judicial
silence, instead of noting
that there appears to be nothing
that proscribes the conduct,
they note that there is nothing
that appears to be allow it.
Normally, the law provides
proscriptions, and when the
conduct is not proscribed
(and was allowed under English
Common Law), the behavior
is considered to be legal.
Here, the discipling parent
must search for law that say
his or her conduct is legal.
It may be a bad idea to spank
your kid, but the rules of
the game need to be known
in advance so that you can
conform your behavior to that
of the law.
Again, the link for the case
is:
http://www.socialaw.com/slip.htm?cid=
464&sid= 9
______________________________________________________
ITEM II. Boston Herald Opinion
Piece on Evidence in Domestic
Violence Cases
http://news.bostonherald.com/opinion/view.bg?articleid=
0677&format==&page==1
Presumed innocent' must be
just that
By Paul J. Martinek
Friday, September 2, 2005
When the Founders drafted
the Constitution, they enshrined
in the Sixth Amendment the
common-sense principle that
an accused must be given a
right to confront and cross-examine
the accuser.
This, of course, makes it
harder to convict people.
But that's the point. Our
system is premised on the
idea that it is better to
let 99 guilty people go free
than to imprison one innocent
one.
However, when it comes to
accusations of domestic abuse,
some feminists think that
all men are presumptively
guilty. If they had their
way, they would throw men
in jail without even affording
them a trial. But, if there
absolutely must be a trial,
conviction must be guaranteed.
So it comes as little surprise
that domestic violence advocates
went into a tizzy when the
Massachusetts Supreme Judicial
Court unanimously ruled this
week that statements an alleged
assault victim made to police
could not be admitted in trial
of the man she accused. The
reason? She refused to testify
at the trial and the defense,
therefore, had no opportunity
to cross-examine her.
This no-brainer interpretation
of a fundamental right was
greeted with scorn by abuse
advocates and prosecutors,
who accurately see the decision
as making it tougher to convict
men of crimes like battering.
But what these critics refuse
to acknowledge is that the
decision will also make it
more difficult to wrongly
convict a man.
Unfortunately, a small but
influential group of women
don't believe that men are
ever wrongly accused of violence
against a woman. Therefore,
constitutional protections
are just annoyances that shouldn't
get in the way of locking
up every poor bastard who
is accused of laying a hand
on his wife or girlfriend.
A woman with a grudge against
a man, or seeking to get the
upper hand in a divorce action,
can obtain a restraining order
against him simply by making
an accusation to a judge.
If a later hearing shows that
the charge was baseless, the
restraining order may go away
but the man's name stays in
the state's domestic violence
registry. He is forever branded
a batterer.
Similarly, when a man is accused
of a crime against a woman,
his name is splattered all
over the place. In the SJC
case, the defendant was prominently
mentioned by name. The woman
was simply called ``the complainant.''
The guy may well be a criminal.
But he has not been convicted.
Nevertheless, his name is
now part of a court decision
that will be preserved until
the end of time in databases
and written volumes. He may
ultimately be acquitted, but
it won't matter. The damage
has been done.
Meanwhile, the woman's name
is not used – not by the court,
not by the press. Even if
she lied, she's protected.
In an effort to make sure
that legitimate victims come
forward (a good thing), we've
created a system where women
can lie with impunity (not
such a good thing).
It's great that the SJC has
recognized that a woman who
won't testify can't benefit
from the unchallenged accusations
she has made. But real fairness
for men will not be achieved
until they are given a reasonable
chance to clear their names
when they are falsely charged
– and until women who fabricate
charges have to face the prospect
of seeing their own names
bandied about in the media.
ITEM 3: RESPONSE
Thank you for printing the
article by Paul Martinek,
“Presumed Innocent” should
mean just that. Democracy
requires that “innocent until
proven guilty” be fundamental
to how courts operate. That
is the premise for mandating
court-appointed attorneys
for the indigent accused of
crimes or facing loss of their
children. The rule of law,
to work must protect everyone,
and this includes men accused
of battering women. The decision
by the SJC was a step toward
sanity and fairness. Just
because a man is accused of
abusing a woman, a citizen
is accused of committing a
crime, or a parent is accused
of abusing a child does not
make the accusation true.
Remember if hearsay that would
not be admitted in any other
case becomes enough to successfully
get a restraining order, or
remove a child, then a false
accusation can ruin any life.
Either “innocent until proven
guilty” protects everyone,
or the courts and the constitution
will no longer protect anyone.
People forget, too, there
is no “right to counsel” for
a man to protect himself against
an allegation of being abusive,
but all too often the accuser
does get a free attorney from
the domestic violence service
industry.
Deborah Sirotkin Butler, Esq.
Liaison, Pro Bono, MACAA*
781 641 9939 (office phone)
19 Overlook Road
Arlington, MA 02474
*Massachusetts Association
of Court Appointed Attorneys
This newsletter is put together
by Attorney Rinaldo Del Gallo,
spokesman of the Berkshire
Fatherhood Coalition, who
practices in family law. He
may be reached at 413-443-3150
for those needing legal help
or support.
IF YOU WANT TO CONTACT THE
AUTHOR OF THIS E-MAIL, PLEASE
WRITE TO
RDelGalloIII@aol.com or R_Del_Gallo@hotmail.com
.
A simple reply to this e-mail
will result in a seriously
delayed response. |
