Children and Domestic Violence

This is the first in a series of posts about recent changes to the domestic violence laws in Maryland.  Each post is intended to present most complete picture possible of the law.  To make the reader think carefully and think better than he or she might have done before.

October 1, 2015 a law goes into effect that allegedly gives judges the right to impose enhanced penalties on families where it finds that domestic violence occurred.  Md. Code Ann., Fam. Law Art. 4-506(d)).  The problem is, there are no definitions whatsoever to tell the judges what the law means, a not uncommon problem with lawmaking.

There is little dispute about the fact that being in the same general vicinity as a couple in the middle of a violent argument is dangerous to children.  The government has a website dedicated to the facts and figures.

So when I heard that the legislature had enacted a law to address the problem, I was pretty excited. But my excitement was premature.  After spending two hours scouring the website of the Maryland legislature and my LEXIS subscription, I couldn't find single thing that contained the following words: "circumstances that constitute witnessing."  These are the magic words contained and defined in the statutes of other states that address the issue in their laws (Alaska, Arizona, Arkansas, California, Connecticut, Delaware, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Louisiana, Mississippi, Montana, Nevada, North Carolina, Ohio, Oklahoma, Oregon, Puerto Rico, Utah, and Washington). Some even have statutes that make committing domestic violence in the presence of a child a separate criminal penalty (Delaware, Georgia, North Carolina, Oklahoma and Utah).

They say things like, "A felony offense of domestic violence that was committed in the physical presence or hearing of a child under the age of 16 who was, at the time of the offense, living within the residence. . ."  That's the criminal code in Alaska (Alaska Stat. sec. 12.55.155).

And, "The court may find a child to be in need of aid if it finds . . . that the child has been subjected to conduct or conditions . . . that have resulted in mental injury . . . or placed the child at substantial risk of mental injury," due to exposure to violence in the home (Alaska Stat. sec. 47.10.011).  This is the civil side of Alaska's criminal code, and the action and effect is clearly and unambiguously defined in both.

But not here.  Despite all the press about the new law, all it really does is . . . well, it is unclear exactly what it does.  Before you get all excited and think this is a benefit to abusers, consider this:  when a law is poorly defined, the person making the decision about how it applies has free rein to define it any way he or she wants to define it.  Leaving the important decision of "enhanced penalties," to whom?  The person with the best lawyer?  The person up for election for the first time? The person with the angry court monitor sitting in the back of the courtroom . . . the one who has a history of going to the press with court decisions with which he or she doesn't agree?

The harm imposed on children by exposure to family violence is a crime.  We need to enact laws that tell us exactly what it is and what should happen to help children who are the victims.