ANNAPOLIS — Advocates for domestic violence victims and the Maryland Judiciary are assailing legislation that would require judges to inform alleged perpetrators of the potential criminal and civil consequences of consenting to final protective orders.
The advocates told lawmakers last week that the information judges would have to provide would discourage consent, forcing victims to testify in court more often and delaying the imposition of protective orders.
Dorothy J. Lennig, legal clinic director at House of Ruth Maryland, said the information required under the bill would address only the downside to consent, such as the fact that a protective order can be used as evidence in a criminal prosecution. The bill does not require a judge to say anything about the benefits, including that consent is not an admission of abuse, Lennig told the House Judiciary Committee.
The legislation is “biasedly written” against consent, Lennig added.
The state Judiciary, in a letter to the House committee, said the bill would put judges in the inappropriate position of giving legal advice to a litigant regarding the consequences of a protective order. Such advice should be given by a defense lawyer, the Judiciary stated.
“Requiring judges to provide advice of rights in a civil proceeding where those rights relate largely to criminal proceedings is misleading and blurs the role of judge and criminal defense attorney,” the Judiciary wrote.
But Del. Michael D. Smigiel Sr., the bill’s sponsor, said his measure would merely extend to those facing a potential protective order the right to be told by a judge the consequences of their consent. A similar right is already extended to criminal defendants before they can plead guilty to a crime, added Smigiel, R-Eastern Shore.
“What this bill offers is what any of us would like to have,” Smigiel said. “Information about the consequences of an action you are taking in court.”
Verbal disclosure required
Smigiel introduced House Bill 48 on the heels of legislation passed last year requiring respondents, or those accused of abuse, to surrender their guns in final protective orders. Protective orders can have a variety of requirements, but often limit contact between the parties involved.
Smigiel’s bill would require civil court judges to verbally inform respondents of the consequences of entering into a consent agreement for a final order rather than choosing to have a hearing on whether abuse occurred. It would also allow respondents to withdraw from a consent agreement any time before a final order is issued.
In consent agreements for protective orders, both parties arrive at and agree to the order’s terms, avoiding a hearing. Consent agreements specify that no finding of abuse has been made, only that the parties have consented to a protective order.
But being under a protective order can violate terms of employment or immigration status. Someone under an order can also be required to leave the home they share with their partner.
While judges in criminal cases must outline these types of facts for defendants charged with crimes, there is no such requirement in civil matters.
Current procedure outlines the terms of a consent order in writing, and judges may cite the terms in open court as a matter of their own procedure. They cannot be appealed and become permanent record that cannot be expunged.
A right or a hurdle?
Laure Ruth, legal project manager at the Women’s Law Center of Maryland, said the bill would open the door to technical appeals after an order has been agreed to, something that is prohibited now.
“There are going to be a lot of cases of buyer’s remorse, or appeals on the grounds that the judge didn’t speak the scripted magic words,” she told the committee.
Ruth said as many as half the protective orders issued in district court are arrived at through consent agreements. Such agreements work to the benefit of victims since they are not required to testify or be cross-examined about personal issues like sexual assault.
“The intent [of this bill] is to discourage consent agreements,” she said. “And fewer consents means fewer protective orders being issued.”
Stephan Moylan, an assistant public defender in Garrett County testifying in support of the bill, said that in his district, respondents often come to court without lawyers and are not given the information they need to understand the terms they are consenting to — including surrendering their hunting rifles and other guns.
“The important consequence for someone in Garrett County is that folks can’t fill their freezers with deer meat,” he told the committee. “There are a lot of people walking out of that courthouse not knowing they can’t put on their camouflage and hang out at their father’s tree stand.”
Lt. Gov. Anthony Brown will not support the bill, said Mike Raia, his spokesman.
Brown’s cousin Cathy Brown was shot and killed in Montgomery Village in 2008 by her estranged boyfriend. Brown testified in support of legislation signed into law in May requiring the surrender of guns by respondents to a final protective order.
Raia said Brown would continue to support bills in support of victims of domestic violence. “We share the views of the Family Violence Council that this is not a bill that does that,” said Raia. “It creates added hurdles and bureaucracy to victims and their children at a time when they need support.”
Both Smigiel and victim advocates expressed hope that a compromise could be arrived at, possibly through making printed information available to respondents and requiring judges to ask respondents if they understand the impact of a consent order.
“This is not geared toward discouraging people from entering into consent,” Smigiel said. “It’s about not encouraging people to enter into uninformed consent.”
Daily Record staff writer Steve Lash contributed to this article.