Robert Franklin, Esq.
October 31, 2013
This claim of domestic violence, the response by police and its ultimate outcome in court, while pretty mundane, tell us a lot about how the domestic violence system operates (Boston Globe, 10/28/13).
On August 31, Boston Celtic’s forward Jared Sullinger was accused of committing violence against his girlfriend, Deann Smith. Here’s how Smith described the incident, if there was one, to police:
In the police report filed in court when the 6-foot-9-inch, 260-pound Sullinger was arrested in September, police said Smith told them that she confronted Sullinger, whom she suspected of cheating on her. The two argued verbally, and the argument intensified when Smith started packing up her belongings, according to the report.
“During this heated argument in the bedroom, Jared pushed her down onto the bed and got on top of her. Deann states she tried several times to get up, but he kept pinning her down and would not let her up,’’ Waltham police wrote in the report.
Eventually, Sullinger left the residence in Waltham, Massachusetts and headed back to Ohio where he grew up and went to college. Nine hours later, Smith called Waltham police who heard the above statement as well as her clearly expressed desire that Sullinger not be arrested or charged.
In a three-page affidavit, the attorney for Smith, Melinda Thompson, wrote that the couple argued on Aug. 31 in their Waltham apartment, and that Sullinger left for home in Ohio. Nine hours after the argument, according to the affidavit, Smith called Waltham police on their business line and reported the incident.
“Ms. Smith spoke with police and told them that she did not want to press charges against Mr. Sullinger,’’ the attorney said, describing the first contact between Smith and law enforcement. “She told them that she did not want to have him arrested. She also told police she did not want or need protection from Mr. Sullinger.’’
It wasn’t the last time Smith would ask police and prosecutors not to arrest, charge or prosecute Sullinger. Indeed, in her affidavit to the court, she said she did so “repeatedly.” They ignored her.
The latest news is that all charges against Sullinger have been dismissed by Judge Gregory Flynn at the request of the prosecutors.
A judge dismissed domestic violence charges against Boston Celtics forward Jared Sullinger on Monday after his estranged girlfriend refused to testify against him.
Deann Smith, 23, whose accusations led to Sullinger’s arrest by Waltham police, had repeatedly asked for the criminal charges to be dismissed since the Aug. 31 incident between the couple in the home they shared in Waltham.
After the ruling by Waltham District Judge Gregory Flynn, Sullinger declined to discuss the case. Asked how he was doing, Sullinger said, “Ready to play.”
In paperwork filed by Sullinger’s attorney, Charles Rankin, the defense asked for the charges to be dropped, contending there was no evidence to support the allegations.
Rankin wrote that Smith, through her own attorney, has notified Middlesex District Attorney Marian T. Ryan’s office that she would not help prosecutors in a trial against Sullinger, 21.
As I said, it’s a pretty mundane case. No blood, no guts, no lurid accounts of sex or violence, just a woman who said her boyfriend lay on top of her on their bed for an undisclosed period of time, preventing her from getting up. And since it is so lacking in drama, I’d call it a good teaching tool.
For now, I’ll assume every word Smith said was true although, as I’ll show later, I’m pretty certain it wasn’t.
First, notice that what Smith claimed Sullinger did was entirely non-injurious to her.He didn’t hurt her. So Lesson # 1 is that what we call domestic violence need have nothing to do with violence or with injury.Feminists like to call all domestic violence (at least that done by a man to a woman) “battering.”But the dictionary definition of the verb “to batter” is “to strike repeatedly with heavy blows. ”That’s not what the vast majority of what we call domestic violence is. What Smith says Sullinger did is closer to the mark. Four years ago, the government of Scotland produced a survey of over 12,000 Scots that showed that 5% of men and 5% of women said they’d been victimized by an intimate partner in the previous year.Of those, 80% said they suffered either no injury whatsoever or only a “minor cut or bruise” in the incident.And so it was with Smith.
Lesson # 2 is that, once the police are called, what the complainant wants doesn’t matter a tinker’s ‘damn.’ From the outset, Smith told police that she didn’t want Sullinger arrested or charged, that he wasn’t even present and that she was in no danger from him. What she didn’t know when she picked up the phone is that, as soon as she did so, the entire thing was out of her hands. The police would do what they wanted, irrespective of her wishes or of the entire lack of danger Sullinger posed to her.
Lesson #3 is that police and prosecutors will throw the entire weight of the criminal justice system at a case that utterly lacks importance. That is, they will exercise not the slightest discretion in deciding whether or not to pursue the matter. They’ll prosecute to the limit of the law a case in which no one was hurt, no one was scared and no one wanted a criminal case lodged. In that, the behavior of police and prosecutors in DV cases is utterly unlike what it is in all other criminal cases. In all other cases, police and prosecutors understand that they have limited resources and must decide which ones to actively pursue and which ones not to. Don’t believe me? The next time someone breaks into your house and steals your television, call the police.Then compare what they do with what they did in the Sullinger case.
Lesson # 4 is that the case would have gone on much longer and Sullinger would be in trouble to this day and much longer, but for a simple twist of fate. Smith doubtless didn’t know it when deciding whether to call the police, but the nine hours that elapsed between the incident and the time she picked up the telephone, is the only thing that saved Sullinger from a DV conviction, a fine and other punishment and a restraining order against him. That’s because, after nine hours, the law doesn’t consider what Smith said an “excited utterance. ” Were it so considered, it would be an exception to the rule against admission of hearsay statements and could therefore be received into evidence without Smith’s even being present in court.Statements made at or near the time of a domestic violence incident are considered excited utterances. That allows police and prosecutors to bring DV defendants to trial despite the wishes of the complaining witness.
Lesson # 5 is that the police and prosecutors didn’t ask Jared Sullinger for his side of the story. To this day, we don’t know what it is and the police were completely uninterested in it anyway. Under normal circumstances, police might ask an accused person if he had an alibi or if he had some reasonable explanation for an incident other than his own culpability. Not in a DV case. When a woman accuses a man of DV, that’s the end of the inquiry. Usually, he’s arrested and charged, and a temporary order is issued against him prohibiting contact with the complainant and his kids if there are any. There’s no effort made to ascertain whether there was an incident, whether it was serious, whether he was the perpetrator or the victim, etc.
Lesson #6, and perhaps the most important one, ties the others together. Lesson # 6 is that the overwhelming majority of DV incidents are never reported to the police. Canadian statistics show that about 78% of incidents are never reported to the police. My guess is it’s a similar percentage in this country.And Deann Smith and Jared Sullinger’s experiences leave little doubt as to why.Think about it; you have a spat with your wife or husband. Maybe it involved some minor pushing or shoving or maybe just harsh words. Do you want the other person arrested?Held in jail with drunks and gang-bangers?Charged?Required to hire a lawyer? Kept away from the home and family by a restraining order?Maybe convicted and sent to jail for a time? Maybe required to register with a DV registry? Perhaps made subject to a restraining order for a longer time? Possibly lose his/her job?For most people, the decision is an easy one – keep the police out of it; they and the prosecutors will only screw up your life.I’d love to hear what Deann Smith would answer if someone asked her “Would you do the same thing again?”
Was there even an incident between Smith and Sullinger?I’m guessing there wasn’t.
Smith “will not appear and . . . if she were forced to appear, she would invoke her Fifth Amendment privilege against self-incrimination,” wrote Rankin, even though she was never accused of a crime.
Hmm. About what incrimination was Smith so concerned that she announced her intention to invoke her Fifth Amendment privilege? Well, it looks very much like she lied to the police about what happened. After all, what else could it be? Unless there are facts no one but Smith and her lawyer know, it appears Smith made the whole thing up. If asked under oath what happened, she’d be required to tell the truth that she wasn’t required to tell when relating her tale to the police. Lying to the police is likely a criminal offense in Massachusetts, albeit a low-level misdemeanor.
So it’s beginning to look like the case of Jared Sullinger that’s been splashed across the newspapers and television news for weeks now may well have been the case that wasn’t. My guess is that Smith was angry that Sullinger may have had an affair with another woman and she decided to get back at him. Having figured out too late the consequences of that course of action, she tried to backtrack, only to find out that it was no longer up to her.
How much time and money were spent on the case that probably wasn’t? It’s anyone’s guess, but whatever the cost of pursuing this non-incident, the question “Was it worth it?” demands an answer.We live in a time of fiscal belt-tightening at the state and local levels, of child protective agencies seeing their budgets cut to the bone and children dying as a result. Meanwhile we pay police and prosecutors to hound men like Sullinger who, if they’ve done anything wrong at all, haven’t hurt a soul.
Domestic violence policy has for too long been in thrall to the fevered imaginings of DV activists who’ve made no secret of their anti-male animus. It’s long past time to reconfigure DV laws and policies to coincide, not with the political ideology of those who seek to separate men from their wives and children, but with our broad and deep scientific knowledge of what DV is, who does it, why, and how to reduce its incidence.
The Jared Sullinger/Deann Smith case is a good one to look at for all the things we do that we shouldn’t when someone picks up the phone to report a DV incident.