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  • Volume 8 | Summer 2007

case updates

The following are summaries of reported decisions involving domestic violence that we hope will be useful to practitioners. If you know of recent reported decisions that you would like to be included in future eNewsletters please send them to Rebecca Henry at Rebecca.Henry@americanbar.org.

Jessica Gonzales v. United States, Inter-American Commission on Human Rights, 10/4/07. Source: Caroline Bettinger-Lopez and the Denver Post

Holding: Jessica Lenahan Gonzales’ three children were killed when the Castle Rock, CO police failed to enforce a restraining order against her former husband. The US Supreme Court held that she had no constitutional right to police enforcement of her restraining order. Lenahan then filed her petition with the Inter-American Commission on Human rights (IACHR), charging that police inaction and the Supreme Court decision violated her human rights. IACHR declared Jessica Lenahan's (formerly Gonzales) case admissible.

Summary: The IACHR was created in 1959 and is expressly authorized to investigate allegations of human rights violations by members of the Organization of American States (OAS), which includes the United States. On Oct. 4, the IACHR ruled Lenahan’s complaint "admissible," which is akin to finding jurisdiction, after rejecting arguments by the U.S. Department of State, including that Lenahan had not exhausted available remedies, and, significantly, that the American Declaration on the Rights and Duties of Man imposes no affirmative duty on states to actually prevent the crimes committed by Lenahan's former husband.

The admissibility decision marks the first time the commission has recognized that the American Declaration on the Rights and Duties of Man imposes affirmative obligations by countries in the Americas to protect individuals from private acts of violence. Having survived the "admissibility" phase, Lenahan's case moves into the merits phase, in which there will be additional briefing and possibly another hearing to determine whether the rights to life, non-discrimination, family life/unity, due process, petition the government, and the rights of domestic violence victims and their children to special protections were violated.

For more information on the Gonzales case, and to view the IACHR's admissibility decision, click here (Spanish version forthcoming). To view Ms. Gonzales' testimony before the IACHR in March 2007, click here.

U.S. v. Fields, –– F.3d ––, 2007 WL 2736221, C.A.11 (Ga.), 2007.

Holding: Fields was convicted in US District Court of willful failure to pay child support, in violation of the Child Support Recovery Act ((“CSRA”) 18 U.S.C.A. § 228(a)(1)). The Eleventh Circuit, in a matter of first impression, held that the “willfulness” element of the CSRA required the government to prove that Fields knew that his duty to pay support was to a child who resided in another state, and therefore, that his violation of the CSRA was not willful. Conviction overturned.

Summary: James Perry Fields and Claire Holland married in 1979, had a son in 1984, and divorced in 1987. The Georgia divorce decree ordered Fields to pay Holland $600.00 per month in child support, and required each parent to keep the other fully informed of the child's health and whereabouts while having possession of him, during custody or visitation.

In 1988, Holland moved to Atlanta, taking the child. Fields alleged that she failed to keep him informed of their whereabouts, and in 1994, the Superior Court of Glynn County entered a contempt order against Holland for her failure to meet her obligations under the divorce decree. Fields quit paying his child support obligation around this time. Sometime after 1994, Holland took the boy and left Georgia. During this time, the only way Fields was able to contact Holland was to send mail to her Atlanta address. The mail was forwarded to her then-current address.

In 2004, the government charged Fields with violating the CSRA, the elements of which are (1) a willful (2) failure to pay (3) a past due support obligation (4) to a child who resides in another state. Upon conviction by the magistrate judge, Fields appealed to the district court, arguing that, because the CSRA punishes only the “willful” failure to pay support to an out-of-state child, he could not be convicted of violating the statute without proof he knew his son resided in another state.

The government argued that no mental state is required with respect to the latter element because it is “merely jurisdictional,” requiring an interstate nexus only to permit Congress to criminalize the failure to pay child support. The district court adopted the government’s position.

On appeal, the issue was whether the CSRA’s jurisdictional element is jurisdictional only, or whether the statute's requirement for willfulness applies to the other elements of the statute. After concluding that the statute, on its face, could not answer the question, the appeals court looked to legislative history. It determined that Congress not only included a “strict scienter” requirement in the statute by the insertion of the “willfully” element, but expressly stated its intention that conviction under the statute require the same sort of specific intent to commit the crime that is required for conviction under a tax statute. The court concluded:

The question, then, is whether the CSRA imposes a legal duty to pay a child support obligation-as the government contends-or whether it imposes a legal duty to pay a child support obligation to a child who resides in another state? So put, the answer is obvious. The state court orders the child support obligation. No federal court can do so. Congress may criminalize the failure to perform that state-ordered obligation when, and only when, the child resides in another state. In enacting the CSRA, Congress created a new legal duty-the duty to pay when the child resides out of state-and criminalizes the failure to do so. Since Congress has indicated that, like the tax laws, it intended the CSRA to punish only the violation of a known legal duty, we conclude that, in order to prove a willful violation of the statute, the government must prove that the defendant knew his child resided in another state and he refused to pay.

State v. Carswell, 114 Ohio St.3d 210, 2007-Ohio-3723

Holding: Ohio's domestic violence criminal statute does not violate Ohio's 2004 "Marriage Amendment" to the state Constitution.

Summary: Ohio's Marriage Amendment, adopted by Ohio voters in 2004, states that: "Only a union between one man and one woman may be a marriage valid in or recognized by this state and its political subdivisions. This state and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage."

Michael Carswell was charged with one count of domestic violence against his live-in girlfriend under the Ohio criminal code. Carswell argued that his indictment should be dismissed because the domestic violence criminal statute violated the Marriage Amendment, by creating a marriage-like status between an alleged abuser and victim. The trial court agreed with Carswell and found the domestic violence criminal statute to be unconstitutional. The appellate court disagreed and found that the criminal statute did not violate the Marriage Amendment of the constitution.

In upholding the appellate court's decision, the Ohio Supreme Count found that the domestic violence criminal statute merely identifies a class of persons who are protected by the statute and does not create or recognize a legal relationship that approximates marriage. The court's decision means that the protections offered by the criminal statute to unmarried household members will remain in place.

U.S. v. Hyde, –– F.3d––, 2007 WL 2253522 (C.A.1 (Mass.) August 7, 2007)

Holding: The First Circuit affirmed that the United States may enforce a restitution order under the Mandatory Victims Restitution Act ((“MVRA”)18 U.S.C. § 3613) by garnishing the proceeds from the sale of Hyde's residence, notwithstanding his attempt to exempt it from the reach of creditors in a Chapter 7 federal bankruptcy proceeding.

Summary: After defrauding his mother’s pension fund over a period of 20 years, Hyde lost a civil suit against him by the fund, and pled guilty to related criminal charges for mail fraud. The civil suit resulted in a money judgment for the amount defrauded (over $317,000), and the criminal sanction included a restitution order for the same amount. The fund placed a lien against Hyde’s residence.

Meanwhile, Hyde filed for Chapter 7 bankruptcy protection, and petitioned for a homestead exemption to protect his residence. The fund objected. While the matter was pending, Hyde sold his house for over $500,000 without notifying the federal government or the fund.

Upon learning of the sale, both the fund and the United States took action. The fund sought to enjoin the transfer of any proceeds to Hyde and requesting a “trustee process attachment” on the funds. The court granted both the injunction and the attachment. The United States sought a writ of garnishment in an attempt to obtain the sale proceeds in partial satisfaction of Hyde's restitution obligation. The writ was issued. Both the Bankruptcy and District courts then ruled against Hyde.

On appeal of the District Court’s ruling, Hyde argued that he retained the right to a homestead exemption even after converting his home to cash, and further contended that the exemption trumped the government's authority to garnish the sale proceeds of his home to satisfy his obligation under the MVRA.

Upon reviewing the statutes in play, the First Circuit concluded that in effect, the government possessed a tax lien against Hyde’s property, triggering one of the explicit exceptions to the Bankruptcy Code's protection afforded to a homestead exemption. Therefore, the U.S. was permitted to garnish the proceeds of the home sale to satisfy its restitution order.