2006 Summer, 30. McCarthy v. Wheeler: Double Jeopardy for Domestic Violence Victims?.

AuthorBy: Jennifer Chase

New Hampshire Bar Journal


2006 Summer, 30.

McCarthy v. Wheeler: Double Jeopardy for Domestic Violence Victims?

New Hampshire Bar Journal Volume 47, No. 2, Pg. 30 Summer 2006 McCarthy v. Wheeler: Double Jeopardy for Domestic Violence Victims? By: Jennifer Chase I. Introduction

A single mother is threatened with harm or physically hurt one more time by the father of her child. She has endured the abuse for years, but this time because he is no longer living with them, and she finally summons the courage to call the police. She is unfamiliar with the law and finds out that to get immediate protection she needs to obtain a temporary protective order and then file a domestic violence petition.1 At the court house, fills out the necessary paperwork and is granted a temporary protective order.2 Once she has the order she feels safer, because now, maybe, the abuse will finally end.

Next, she finds out she has to go to court and have a hearing.3 She knows this is going to make the father angry. But she has the temporary order, so she knows the father will get into trouble if he violates it and she thinks this will deter him from harming or threatening her. A hearing date is scheduled, but there are unanticipated continuances. Then, and for reasons the victim does not understand, the order is dismissed. She has no protection, and to obtain the protection of a protective order, she has to start the process over again. Since the father is already angry that she has involved the court in the first place, does she dare go down that road again? If the court could not offer her protection the first time around, will pursuing the same course protect her, or further provoke the father?

Today, domestic violence victims are particularly vulnerable, especially if they are neither represented by counsel nor familiar with the law. As a result of the Supreme Court's recent decision in McCarthy v. Wheeler, the courts have no choice but to leave domestic violence victims unprotected if, through no fault of the alleged victim, the court misses a statutory hearing deadline. In McCarthy, the Supreme Court had to balance the safety interests of the victim against the due process rights of the defendant.4 The Court resolved the balance in favor of the defendant, holding that when the district court failed to schedule hearings within RSA 173-B's statutorily prescribed time frames, the victim's domestic violence petition, restraining the defendant from having contact with her, had to be dismissed.5

In this article I intend to first review the history behind current domestic violence laws, including New Hampshire's, and explain the policy behind the law and how it was intended to operate. Next I will discuss the McCarthy majority and dissenting opinions and will conclude that the majority decision: 1) is legally flawed and inconsistent with the policy behind, and purpose of, the domestic violence statute; 2) failed to consider other remedies short of dismissal; and 3) is inconsistent with State v. Kidder, a recent decision in which the Court upheld the rights of a domestic violence victim in the face of a due process-based challenge by her alleged abuser.6 Finally, I will suggest that the legislature, in response to McCarthy, amend RSA 173-B to reflect the Domestic Violence Case Protocols' allowance for an extension when a continuance has been granted, and require dismissal only upon a showing of prejudice by the accused which outweighs the paramount purpose of the statute, protection of the victim.

II. Addressing the Issue of Domestic Violence

In the United States, violence against women has reached epidemic proportions.7 The National Clearinghouse on Domestic Violence reports that in the United States men batter three to four million women a year.8 Congress allocated substantial federal resources and remedies to address the epidemic in its criminal context, through the Violence Against Women Act of 1994 (VAWA).9 VAWA expired in 2005, and on January 5, 2006 President Bush signed VAWA 2005 Reauthorization into law.10 VAWA 2005 enhances essential programs and policies in the criminal justice and legal systems and "reaffirms the commitment to reform systems that affect adult and youth victims of domestic violence, sexual assault and stalking."11

Despite the federalization of domestic violence, today more than 95 percent of domestic violence prosecutions take place in state courts.12 During the past two decades, legislatures, courts and state prosecutors, have worked to develop and "improve the criminal justice system's response to domestic violence," through numerous reforms and initiatives.13

Among these measures are domestic violence training for police officers, prosecutors and judges.14 Police departments, prosecutor's offices, probation departments and local courts have created special domestic violence units.15 Mandatory arrest policies in domestic violence cases have been established.16 Emergency ex parte restraining orders are available, and criminal sanctions for violating restraining orders have been created.17 Further, law enforcement now recognizes domestic violence crimes such as stalking; legislation has mandated stiffer sentences in some domestic violence cases; and there are prosecution "no drop" policies.18

A. NH's Response: RSA 173-B

In every case involving domestic violence there are two overarching interests: "protecting the victim from further abuse by the accused and empowering the victim to take back control over his or her life."19 In New Hampshire, RSA 173-B:1 provides that protection from domestic violence is afforded to a broad range of persons, including family or household members and current or former sexual or intimate partners of the defendant.20 Since its inception in 1979, on three different occasions the legislature has amended the section defining who is covered by RSA 173-B, and each amendment has broadened the statute's reach.21

RSA 173-B serves the state's public policy interest in preventing and deterring domestic violence by providing immediate and effective judicial relief to the victims of domestic violence.22 The provisions of 173-B were crafted to afford victims immediate and easy access to the courts, including a provision allowing victims to forgo a filing fee and appear pro se.23 Temporary relief is available through the issuance of orders to protect the victim without notice to the accused, and such orders may be issued by telephone or fax.24 At the court's discretion, the temporary orders may: 1) restrain the defendant from abusing the victim, 2) restrain the defendant from entering the premises and curtilage of the victim's residence, and, 3) restrict or regulate visitation.25

Thus, the statute purports to guarantee the victim judicially enforced law enforcement protection until the hearing date. Violation of the temporary order by the accused results in his automatic arrest.26 The temporary order, served on the defendant also provides notice of a hearing,27 and states that after the hearing the court may issue a final order.28 According to RSA 173-B4, I, when temporary orders are made ex parte, the party against whom the order is issued may request a hearing in writing, and that hearing shall be held no less than three and no later than five days after the request is received by the clerk.29 When a domestic violence petition is filed, RSA 173-B:3, VII states the court "shall hold a hearing within 30 days of the filing of a petition under this section or within 10 days of service of process upon the defendant, whichever occurs later."30 In the aftermath of McCarthy, however, the victim can no longer count on this protection when the court fails to schedule hearings within these deadlines.

III. McCarthy v. Wheeler

On August 12, 2004, the plaintiff, Wendy L. McCarthy and the defendant, Robert E. Wheeler, were on...

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