The Legislature was busy last session. It passed into law enhanced penalties for repeat DWI offenders, added new statutory crimes like home invasion, and marijuana was significantly decriminalized. Possession of less than 10 grams of marijuana is no longer a criminal offense. Domestic violence, in particular, received a significant makeover that took effect October 1, 2014.
First, and most controversial, is the now lower standard of proof required for Final Peace and Protective Orders. Before October 1st of this year, Maryland law required a showing of “clear and convincing evidence” by the Petitioner in order to obtain a Final Peace or Protective Order. The new law requires the “preponderance of the evidence” standard, which is one of the lower thresholds in the court system. This lower standard will make it easier for the Petitioner to prove allegations of abuse, and lead to more Final Protective Orders granted. Although Peace and Protective Orders are a civil remedy, the stigma associated with having a Final Peace or Protective Order in place against you is arguably greater than being found guilty of many crimes. Since the public can easily find out about the issuance of Temporary and Final Protective Orders, there is great concern by many over how it will affect their employment and everyday life should an Order be granted against them.
To illustrate the difference in required proof, let’s consider the illustration of percentages. A clear and convincing standard can easily be thought of as a Judge being 75% convinced that the alleged abuse occurred. A preponderance of the evidence standard, on the other hand, can be thought of as the Judge being about 51% sure that the alleged abuse occurred. This may not seem like a big difference to the average person, but in my opinion, and the opinion of many Maryland attorneys who also represent parties at these hearings, it is a huge difference that will most likely result in the finding of more Final Orders.
Many see the change in law as a huge step forward to fighting domestic violence. According to a Press Release on Lt. Governor Brown’s website, “Of the nearly 5,300 final peace or protective orders that were denied last year alone, 3,500 of those were because the victim could not meet the standard of “clear and convincing evidence.” This important change will ensure more victims of domestic violence have access to the protections they need.”’ (See Lt. Governor Brown’s Press Release, http://www.governor.maryland.gov/ltgovernor/pressreleases/141001.asp (last visited November 8, 2014)). According to the press release, Maryland was the only state still holding victims of domestic violence to the higher standard of “clear and convincing evidence.”
Since Peace and Protective Order Hearings are a civil proceeding, the parties involved have to seek private counsel or pro-bono legal services should they want representation. Sadly, the Office of the Public Defender is not an option for indigent Petitioners and Respondents.
The impact of the new law will most likely be that a Respondent who finds him or herself with an Order against them will face more life challenges as a result – at work, in their custody and child support cases, and even at pre-trial release determinations.
Another major change in law with regard to domestic violence is that the crime of second-degree assault will now be included among the list of crimes for which a person can obtain a final protective order. According to the Maryland State’s Attorneys Association, the majority of domestic violence cases involve second-degree assault (Maryland State Commission on Criminal Sentencing Policy, 2012). Additionally, a 2012 report showed that 94 percent of domestic violence crimes reported to the police are charged as assault (Uniform Crime Report, 2012). This new change will also help victims of domestic violence obtain that Final Order for protection with greater ease.
Lastly, the Legislature passed an enhancement regarding violent crimes that are committed in the presence of a minor in the home. A Judge may now impose an additional five years on top of the sentence for the crime itself.
The enactment of these new laws makes it clear that Maryland is getting tougher on Domestic Violence. Whether you are the Petitioner or the Respondent, you should seek the help of an experienced attorney for representation at Peace and Protective Order Hearings.