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Editorial: Standing out in the wrong way

Of the 50 states and the District of Columbia, Maryland has raised the highest bar to obtaining a final protective order against domestic violence. Last year alone, the heightened standard caused judges to deny about 3,500 such orders, according to statistics provided by the governor’s legislative office.

Now, the General Assembly has a chance to bring the Old Line State into line with all the other states.

Under Maryland’s uniquely onerous standard, a person who wants to obtain a final protective order must provide “clear and convincing evidence” that abuse occurred — no easy task in what is often a he-said, she-said battle. Under legislation cross-filed this year in the state Senate and House of Delegates, the standard would shift to proof by a “preponderance of evidence,” sometimes called a more-likely-than-not standard. This is the same yardstick judges and juries use in civil lawsuits.

The Senate Judicial Proceedings Committee took compelling testimony this week in favor of its bill, S. 333, from representatives of the governor’s office, the mayor of Baltimore, the House of Ruth, the Maryland Coalition Against Sexual Assault and the Maryland State Bar Association’s Family and Juvenile Law Section Council. Speaking against the legislation: not a soul.

However, the bill’s future is anything but assured.

In the last 10 years, four similar proposals have failed to clear the General Assembly. One of them, the 2006 bill, even passed the Senate before dying without a vote in the House Judiciary Committee. The 2005, 2007 and 2010 bills met with various fates in the Senate but always drew an unfavorable report from the House Judiciary Committee, whose chairman, Del. Joseph F. Vallario Jr., also practices criminal defense law.

After this week’s hearing in his Senate committee, Judicial Proceedings Chairman Brian Frosh told The Daily Record’s Steve Lash that some people fear a lesser standard would trigger baseless motions by angry spouses.

While that is a risk, it seems unlikely to be an insurmountable one.

First, no one has argued that the state has been inundated with frivolous claims for interim or temporary orders, which are the required first steps in the process. Because those orders only last a short time, they require a far less stringent showing of “reasonable grounds to believe” abuse has occurred.

Also, the key procedural step for moving from temporary protection to a final order will still be a court hearing, and the judge still must be convinced that abuse occurred. The only change is in the standard of proof required.

Finally, lowering the height of the final step in the process has not proved unworkable anywhere else in the U.S. In other states, people seeking final protective orders have a lower hurdle to climb and, by definition, have better access to the courts’ protection.

When it comes preventing domestic violence, Maryland should be leading the way. For now, though, catching up to the rest of the nation would be a good first step.