The Washington Post

Maryland likely to ease burden of proof for domestic violence victims

Victims’ advocates celebrated a victory in expanding the protections against domestic violence Thursday as the Maryland’s General Assembly moved toward passage of a measure that would lower the standard of proof for obtaining a protective order.

Advocates said the House’s passage of the evidentiary bill by a 112 to 22 vote caps an 18-year campaign by victims’ advocates and a victory for the administration of Gov. Martin O’Malley (D) and leaders of both chambers. A Senate version passed 47 to 0 on Feb. 7. One of the two bills must still clear the opposite chamber, but advocates appeared confident that the measure would reach the governor's desk.

Under the current law in Maryland, applicants for protective orders must present “clear and convincing evidence” of abuse or the threat of possible abuse. With the proposed change, an accuser would need to demonstrate only a “preponderance of evidence,” or just enough to tip the scale in the applicant’s favor.

The proposed measure — which would bring Maryland generally into conformity with the evidentiary standards adopted by 49 other states — is intended to make it easier for the victims of domestic violence to obtain a court order that would bar the aggressor from the home and provide other relief.

Lt. Gov. Anthony G. Brown (D), who is running for governor, said advocates told him before the annual legislative session that changing the evidentiary threshold would have the biggest impact in reducing domestic violence.

“This year they said let’s go win the standard of proof,” Brown said in an interview.

Sen. Brian E. Frosh (D-Montgomery), who chairs the Judiciary Proceedings Committee, said an estimated 1,700 people who attempted to obtain protective orders were turned away because they failed to meet the current standard of proof.

At a news conference, Frosh said he was motivated to push harder for a change in Maryland’s law after an acquaintance in the District of Columbia’s judiciary told him that victims of domestic violence sometimes leave Maryland and move to the District because they are unable to obtain protective orders.

“That made the fire burn particularly hot for me,” he said.

Del. Kathleen Dumais (D-Montgomery), who sponsored the House version of the bill and serves as vice chair of the Judiciary Committee, said the legislature has been slow to embrace the lower standard, and only did so after careful reflection, because of its interest in finding the right balance between the rights of victims and the legal rights of defendants.

“It’s really a question of balancing victims’ rights, and due process, and that’s really what we argue about the most,” Dumais said, acknowledging that there was a concern about lowering standards in cases that often hinge on the word of one person against another.

“In domestic violence, there is a wide spectrum of sort of what the hearings are about,” Dumais said. “The hearings are often short. . . . There are horrible, horrible cases, and there are those who will feel sometimes the domestic violence cases might be something that is misused.”

Asked whether he had concerns that the lower standard of proof might tilt the scales too much against defendants, Brown replied: “To the extent that errors do occur — which no one embraces, [and] we understand that they happen — I think that the errors that occur against the victims are much more threatening to life and liberty than what errors may occur to the alleged abuser, which often is loss of property.”



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