First let me state clearly and unequivocally that domestic violence is a serious problem in today’s society. Rarely a day goes by without reading or hearing news reports of someone being abused, injured or even killed by their spouse, cohabitant, another family member or even a dating partner. Recognizing that the existing laws when arising in domestic context were inadequate in addressing these situations due to their differential treatment or enforcement, our state legislature, several decades ago, passed the Prevention of Domestic Violence Act of 1991 (N.J.S.A 2C:25-17 et. seq.) which was designed to protect victims of domestic violence, deter future acts of domestic violence, and provide uniformity in the prosecution and adjudication of such matters. The Act has been the subject of numerous legislative amendments and Court interpretations over the intervening years. The Act’s use, implementation and/or effectiveness have been the subject of much debate, but that is not the subject of this blog.
What caught my eye was a recent news report that a New Jersey state lawmaker was about to introduce a bill to create a publically accessible registry for those found to have to have committed domestic violence, similar to the one established by Megan’s Law (N.J.S.A. 2C:7-1 et. seq.) for sex offenders. The legislator reasoned that victims of domestic violence are often abused by persons who had a past history of domestic violence, and these situations might be avoided if a ready resource was available to check on those with whom that person may enter into a relationship. Conceptually, this idea seemed logical, if not noble, at first glance. However, upon further reflection I developed doubts and serious concerns as to the propriety and legality of such a “domestic violence” registry, and the slippery slope of where this could lead.
First, those subject to the registry requirements under Megan’s Law either pled guilty to or were convicted of certain enumerated sex crimes. On the other hand, while included within section 2C of the Criminal Code, the Prevention of Domestic Violence Act is not a criminal statute per se. The domestic violence proceedings thereunder (as opposed to a contempt proceeding) can best be characterized as somewhat “quasi – criminal”, although actually civil in nature. To be charged with domestic violence, the victim must allege that the perpetrator conflicted upon him or her one or more certain enumerated predicate criminal acts ranging from homicide and assault to harassment and stalking. One need not be charged with or convicted of the underlying predicate criminal act(s) to be found guilty of domestic violence. One does not need to be convicted of a crime to be found guilty of domestic violence. Further, the kinds of offenses which would give rise to Megan’s Law would be tried in the Criminal Division of the Superior Court with a constitutional right to a trial by jury and where the state’s burden of proof must be established beyond a reasonable doubt. On the other hand, proceedings under the Prevention of Domestic Violence Act would be tried in the Family Division of the Superior Court without a jury, the State is not a party to the proceeding, rather it is a contest between the victim and the accused, and the burden of proof is only by the preponderance of the evidence. Frequently such domestic violence matters involve the Judge being confronted with little more than conflicting versions of events by each party and having to base its decision on which party may have been slightly more credible than the other.
Often domestic violence proceedings occur as a culmination of an already deteriorating personal relationship. Arguments escalate, emotions get the best of people, regrettable actions may occur or unfortunate things said which may cause the situation to rise above mere “domestic contretemps” and fall within the penumbra of domestic violence. While there can be no excuse for truly wrongful behavior, these types of situations remind me of the expression repeated by many Judges that in Criminal Court judges see bad people at their best while Family Court judges see good people at their worst. A Family Court Judge hearing a domestic violence case may be confronted with an obviously unhealthy, untenable and potentially explosive household situation to which children may be exposed. Confronted with conflicting testimony or evidence the Judge must decide whether to dismiss the charges, returning the parties to that powderkeg, or does the Judge tip the scale in favor of making a finding of domestic violence to avoid this from occurring.
How may this weigh upon the propriety of establishing such a domestic violence registry? If the “domestic violence” intended under the proposed legislation is broadly defined to include any finding of domestic violence under the Act, as opposed to a separate criminal conviction of one of the underlying predicate acts, a person who has not even been found guilty of a crime would be subjected to the publicly accessible registry and all that this might entail. As under Megan’s Law, would that person need to “register” with the law enforcement authorities of each town in which he or she resides? Would members of the “community” or others be entitled to notification of his or her identity and presence? Would that person be identified on a publicly accessible internet registry? For how long or indefinitely? The underlying policy for Megan’s Law was the enhanced risk of recidivist acts by the sex offender and the public need to know and be protected; however, this was to be counterbalanced by prohibitions against using this information to discriminate against the offender, whether as to housing, employment or other matters. Despite these prohibitions, studies suggested that some of these unintended discriminatory impacts were occurring. Would these same sorts of consequences and concerns occur if a domestic violence registry was established?
Even if such a domestic violence registry were limited to the most “serious” types of abusive conduct or even to circumstances where the person was found guilty of the underlying predicate act in Criminal Court “beyond a reasonable doubt” – assault for example – wouldn’t this raise a slew of constitutional issues, be they due process or equal protection? Why would someone convicted of assaulting a girlfriend or spouse be placed on a registry, when someone convicted of assaulting a neighbor, friend or even a stranger would not? Wouldn’t the public at large want to know whether they were living next to an assaultive person as much as someone dating one? Where does one draw the line? Would this create a slippery slope? Why not a registry for convicted embezzlers or other types of white collar criminals so that employers can decide whether to hire people or not? A registry for convicted robbers or thieves so a person could assess whether they need to be especially vigilant in protecting or safeguarding their property from a person across the street? A registry of convicted drunk drivers so one can ascertain whether someone a person may want to hire or date has a potential drinking problem?
Again, no one disputes that domestic violence is a serious societal problem. Wanting to do something to stem the “cycle” of domestic violence is certainly a noble goal. But is creating a “domestic violence registry” the answer?