The Maryland House Judiciary Committee has a reputation for being not only a place where good bills go to die but also where witnesses can expect little sympathy for having suffered from violent or sexual crimes. The committee’s worst tendencies were in evidence once again during a Feb. 25 hearing on a bill to help keep victims of domestic abuse safe from their abusers.
The bill, sponsored by Del. Sue Hecht (D-Frederick) and Sen. Jennie Forehand (D-Montgomery), would have changed the burden of proof from “clear and convincing evidence” to “preponderance of the evidence” for final orders of protection, the same standard in place for the vast majority of other civil actions in Maryland, including tort actions for large damage awards, child abuse determinations and custody decisions. Maryland hangs on obstinately as the only state to adhere to this high standard of proof.
Predictably, the bill was killed by the committee.
Our witness was Amy Castillo, a Montgomery pediatrician who did everything she could to protect her three children, including getting a temporary protective order on Christmas 2006 after her husband, Mark, told her that “the worst thing he could do to me would be to kill the children and not me.” On March 29, 2008, Mark Castillo followed through on this threat, drowning Anthony Castillo, 6, Austin, 4, and Athena, 2, in a hotel bathtub.
Amy Castillo came to Annapolis to tell the members of the committee about her unsuccessful attempts to get a final protective order against Mark Castillo. She told them about his behaviors, threats, mental health problems and refusal to get the help he needed, and about her grave fears for her and her children’s safety.
This testimony was met with something worse than indifference. Referring to a transcript of the final hearing on her request for an order of protection, Del. Luiz R.S. Simmons (D-Montgomery) attacked the rationale for the bill, stating that Judge Joseph A. Dugan Jr. had substantial problems with Amy Castillo’s credibility. In tones that were anything but kind, Simmons declared that he wouldn’t read verbatim what the judge said because he didn’t want to “embarrass” Castillo. The exact nature of this “embarrassing” information — presumably the fact that she submitted to her estranged husband’s demand for sex, something not uncommon in such cases — was left to the imagination of those present.
In his zeal to discredit the mother of three murdered children, Simmons seemed to forget that Dugan had been tragically wrong when he disregarded Amy Castillo’s fears for her children’s safety and bought the arguments made by Mark Castillo and his lawyer. Simmons’s flawed logic: The judge found reason to question Amy Castillo’s credibility, so it was her fault that she didn’t get the protective order. Simmons expressed doubt that Castillo could have met even the preponderance standard, suggesting that changing the legal threshold wouldn’t have helped save her children. And this is why other at-risk or abused children should be denied protective orders?
Amy Castillo’s case illustrates a point made by Joan S. Meier of the Domestic Violence Legal Empowerment and Appeals Project at George Washington University Law School: “The higher the burden, the more the risk of error is placed on the alleged victim or protective parent. The burden is a direct reflection of whether you believe the majority of petitioners are lying, or not. If you don’t, this burden is inappropriate because it privileges abusers over victims.”
Feeling they have nowhere to turn, parents are condemned to wait helplessly for the next violent or abusive act. Try this thought experiment: Imagine that your child has met the preponderance standard for abuse but a judge says that is not enough for a protective order to keep the child from the abuser. Imagine what it would be like to live knowing that you or your children are at lethal risk but that you can get help only if you or the children are hurt badly enough. …
Via Naomi Cahn