February 8, 2012

Judge Sentences Husband to Take His Wife on a Date

A Florida judge has sentenced a Plantation husband to take his wife on a date for a domestic violence incident that began as a marital spat when he forgot to wish her a happy birthday. As reported in the SunSentinel, Broward County Judge John Hurley ordered the man to stop for flowers on his way home, then pick up his wife and take her on a date to dinner at Red Lobster followed by a night of bowling. He also ordered the couple to commence marriage counseling within a week.

The judge defended his sentence by saying that he determined the incident was relatively minor, there were no prior arrests, and the man's wife was not injured nor afraid of him. The judge said that he would not have made such an order if the incident were more serious, and he believed this sentence was a "better resolution than other alternatives."

Domestic violence is obviously a serious problem, not only here in California but across the country. And, the courts clearly need to address it in a meaningful manner by protecting victims of violence, along with imposing some form of punishment and treatment (e.g. counseling) on the perpetrators in an effort to prevent a reoccurrence of the violence. In doing so, judges are afforded a wide range of discretion. This judge used his discretion to evaluate the situation and made orders he believed were appropriate under the circumstances. It certainly will be interesting to watch and see whether his orders are effective for this particular couple.

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August 25, 2008

California Custody Battle Ends in 15-Years-To-Life Murder Conviction

Linux computer programmer Hans Reiser was sentenced on August 29, 2008 to 15-years-to-life in prison after confessing to the murder of his estranged wife, Nina, during a heated argument over custody of the couple's young children. The two had been embroiled in a contentious divorce case in Oakland, California, until Nina's mysterious disappearance in early September 2006.

According to the San Francisco Chronicle, Reiser turned down the prosecution's pre-trial offer of three years in prison in exchange for his guilty plea to voluntary manslaughter, opting instead for a full trial. That strategy backfired, and after the jury returned a guilty verdict to first-degree murder, Reiser plea-bargained the conviction down to second-degree murder in exchange for his leading police to the makeshift grave where he buried Nina's body and for waiving any rights to an appeal of the conviction.

Today, more and more husbands and fathers complain that they are the victims of fabricated accusations of domestic violence by angry and vindictive spouses or partners who take advantage of California's rather liberal standards for obtaining protective orders. The DVPA, or Domestic Violence Prevention Act [California Family Code §6200 et seq.] is intended to prevent the recurrence of acts of domestic violence and to provide some separation, in terms of both distance and time, 702559_broken_relationship_1.jpg between the parties involved sufficient to enable them to resolve the cause(s) of the violence. Men frequently complain that many of the women who apply for restraining orders or emergency custody orders under the DVPA are not seeking protection so much as they are seeking either revenge or some kind of an advantage during the legal proceedings. They argue that the applications for relief are filled with creative fiction as opposed to facts. I myself have had experience with cases like this involving malicious and groundless allegations. And not just by women against men, but also by men against women.

Unfortunately, however, the Reiser case illustrates that domestic violence is and remains a serious problem in California (as well as in other states), despite the allegations of ongoing misuse of the system. Nina Reiser wasn't just harassed or injured; she lost her life, the couple's children lost their mother, and her family lost a daughter.

As legal practitioners, we grapple with how to ferret out those cases where protective orders are warranted versus those that are shams. All else being equal, when two parties in the courtroom appear perfectly calm, reasonable and credible, we sometimes give our judges the nearly impossible task of trying to balance fairness and justice with protecting one of the parties – and maybe even children – from harm.

Yet one thing is clear: until we as a society learn how to deal with and prevent domestic violence more effectively than we do now, we will continue to struggle with this problem. Innocent parties will continue to be accused of horrible actions, vengeful parties will continue to make those accusations, victims will continue to be injured, and people like Nina Reiser will inexcusably and unacceptably continue to die.

For more information about domestic violence prevention and other California family law issues, please contact attorney Gary D. Sparks.

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