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Child Abuse & Men Are Guilty Until Proven Innocent

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.


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.

RDelGalloIII@aol.com or R_Del_Gallo@hotmail.com .
A simple reply to this e-mail will result in a seriously delayed response.