Roger writing the LAWmag

Domestic Violence: A Tale of Two Cities

Domestic violence now receives the attention it deserves, with law enforcement adopting an arrest-first, ask questions later approach.

It wasn't always that way. In centuries past, a wife was considered her husband's property. It wasn't spousal abuse: it was appropriate correction!

Nobody cared or even considered battered spouse syndrome or the battering cycle.

But we need not take a time machine to witness the birthing pains of the law's slow recognition of domestic violence.

angry man 1In 1997, in a case known only as JNS v DBS, these facts polluted the New Jersey Court registry.

"Plaintiff (the wife, J.N.S.) ... alleged various conduct over a period from Friday through Monday, May 17-20, 1996. Plaintiff alleged that when defendant (D.B.S., the husband) came to pick up their son, he harassed her by using a vulgar hand gesture; that when he brought the child back he kicked over a garbage can; and that he had constantly harassed her in person and over the phone. With respect to prior history, plaintiff alleged that defendant had threatened her life with his Mafia connections, threatened to take the children, and to make her life miserable. These allegations were disputed by defendant. Nevertheless, there was testimony at the final hearing from which the judge could have concluded that defendant used a vulgar hand gesture; that he kicked over a garbage can, although defendant denied both claims and offered testimony of an eyewitness that he did not kick over the garbage can; that on Yom Kippur in September 1995 he used a derogatory slang term to describe plaintiff's non-Jewish boyfriend; and that in March 1996 he called plaintiff a variety of obscene names. It was only in the context of the 1995 Yom Kippur holiday, when plaintiff did not go to dinner at defendant's brother's house, that plaintiff testified to a single telephone threat: You're going down. You're going down. I'm going to destroy you."

Needless to say, J.N.S. attended the local police station and sought a restraining order against her husband. The trial judge noted that he believed that the incidents as alleged did occur and granted the restraining order.

The husband appealed arguing, among other things, that there had never been any violent or aggressive contact initiated by his client upon the wife; that it had all been but forceful words - there was no domestic violence to ground a restraining order?

This set up the stage for the astonishing June 23, 1997 decision of the Justices Barbara Byrd Wecker of the Superior Court of New Jersey, Appellate Division to which, somehow, her colleague-female judge Sylvia Pressler, and Mr. Justice Burrell Ives Humphreys agreed in overturning the restraining order and agreeing that the incidents were mere "bickering between the parties ... trivial and petty communications...."angry man 2

Later, in Parish v Parish, the evidence showed that Royce Parrish had done this to his ex-wife Mary Parrish:

"In September 1997, (Mr. Parrish) threw a coffee table at the wall of their mobile home.... (In) the fall of 1997, at the Chillicothe Elks Lodge, (he) began slamming objects around on the table, then walked out. (A) witness testified that appellee behaved in a similar manner in the summer of 1998, when she was at (Mrs. Parrish's) home.... . Finally, (Ms Parrish's) mother testified that (her ex-son-in-law) would call up and scream and holler into the telephone answering machine at various times in the fall of 1998...."

Judge Evans of the Court of Appeals of Ohio rejected the suggestion of domestic violence, that there had not been "fear of imminent serious physical harm by threat of force"!

It seemed as if all flesh of judicial reason died that moved upon the earth. All in New Jersey and Ohio in whose nostrils was the breath of law and protection against domestic violence, of all that was in the dry land, died.

But, somehow, Law remained alive, and they that were with him in the ark as the waters prevailed upon the earth a hundred and fifty days, give or take a week, as upon the sixth day of November, year of our Lord 1997, Justice Mary Maring of the Supreme Court of North Dakota heard a booming voice thunder Go forth, thou, and thy Law.

Gregory Ellingson was married to Gail Lovcik. But they were divorced when this happened:

"Greg made a third phone call which Gail answered. In this call, Greg was angry and verbally harassed Gail using derogatory terms, including referring to her as a bitch, a fucking liar and a cunt. Gail testified she put down the phone and walked away because she was scared and intimidated by the call.

"Later that same evening, Greg called a fourth time, and Gail answered. Although Greg was more calm during this conversation, he made more harassing and verbally abusive statements to Gail. During a fifth phone call from Greg that evening, Greg referred to Gail as a lying bitch.

"In addition to these phone calls, Greg left two messages that evening on Gail's answering machine. In the first recorded message which was addressed to his sons, Greg referred to Gail as a materialistic welfare victim bitch and a cunt. Greg addressed the second recorded message to both Gail and his sons. Greg was again verbally abusive and stated: Hope you really enjoy your money and you fucking choke on it, Gail."

Well, Gail, too, like J.N.S. before her, sought a restraining order.

She, too, got it at trial but it was appealed before three justices of the Supreme Court of North Dakota, sitting in appeal.

Greg's lawyer admitted that his client's behaviour was "reprehensible" but reprehensible conduct, he added, does not necessarily domestic violence make.

Justice Mary Maring had a little something in her judicial toolbox: a statutory definition of domestic violence which included:

"... the infliction of fear of imminent physical harm, bodily injury, sexual activity compelled by physical force, or assault on the complaining family or household members".

Appeal denied, restraining order confirmed.

And God blessed Law and his sons, and said unto them, be fruitful, and multiply, and replenish the earth and domestic violence no longer requires evidence of physical contact. It is enough if the words or actions cause alarm.

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