Schneiderman Campaign Accuses Donovan of Misinterpreting Domestic Violence Bill

"Sadly, despite the fact that he is asking for a promotion to be the state's top lawyer, Dan Donovan does not understand the basics of the state's penal code, or even his own bill. Had Mr. Donovan done a little research, he'd know that the misdemeanor domestic violence offenses in his bill are not subject to mandatory arrests and could let abusers walk free."

In response to the Schneiderman Campaign's challenge to Republican Dan Donovan to explain why he authored a soft-on-crime bill that fails to require the mandatory arrest of domestic violence abusers, Donovan late yesterday incorrectly claimed that it does. Unfortunately, Donovan's understanding of the law is wrong (full explanation below). 

"Sadly, despite the fact that he is asking for a promotion to be the state's top lawyer, Dan Donovan does not understand the basics of the state's penal code, or even his own bill. Had Mr. Donovan done a little research, he'd know that the misdemeanor domestic violence offenses in his bill are not subject to mandatory arrests and could let abusers walk free. On the other hand, Eric Schneiderman’s work to combat domestic violence, including a new law that finally makes strangulation a crime with mandatory arrests, has earned the praise of Republican and Democratic District Attorneys from across the state, as well as the New York State Coalition Against Domestic Violence and the National Organization for Women. The next Attorney General needs to understand the law and protect the people of this state from violence, and unfortunately, Dan Donovan has failed on both accounts," said Schneiderman spokesman James Freedland.
 
BACKGROUND
 
Despite repeated claims in campaign press releases, the bill authored by Dan Donovan (S. 7326/Padavan) does NOT require mandatory arrests for domestic violence abusers. Because the legislation written by Donovan failed to amend the “mandatory arrest” section of the Criminal Procedure Law, these crimes would NOT constitute mandatory arrest offenses, meaning that abusers who engage in violence in the home could simply walk free - a fatal flaw that cost the bill support from victim advocates and women's organizations.
 
Dan Donovan is correct that his bill elevates to misdemeanor status two offenses that are currently violations. However, not all misdemeanors are subject to the "mandatory arrest" provisions of CPL 140.10(4)(c). That section states with unmistakable clarity that ONLY those misdemeanors defined as "family offenses" in CPL 530.11(1) and Family Court Act section 812 are subject to mandatory arrest. Whether due to sloppy drafting or simple ignorance of the domestic violence laws of this State, the bill drafted by Mr. Donovan and introduced by Senator Padavan (s.7326) fails to add the two misdemeanors created by the bill to the CPL 530.11(1) and Family Court Act section 812 list of "family offenses." As a result of this error, the misdemeanor offenses created by the bill are NOT "family offenses" as defined by CPL 530.11(1) and categorically are NOT subject to mandatory arrest.
 
If Mr. Donovan needed guidance on how to create a misdemeanor crime that IS subject to mandatory arrest, he need look no further than the new strangulation statute drafted by Eric Schneiderman and recently signed into law by the Governor. That statute not only creates the new class A misdemeanor of "Criminal Obstruction of Breathing or Blood Circulation" (and two new violent felony strangulation crimes), it also adds that new class A misdemeanor to the list of "family offenses" in the CPL and Family Court Act, thus subjecting it to "mandatory arrest" under the clear provisions of CPL 140.10(4)(c). 
 
Another domestic violence bill Mr. Donovan could have looked at for help is one co-sponsored by Eric Schneiderman which became law last year. That bill (S.5031-A) added four misdemeanor sex crimes (Sexual Misconduct, Forcible Touching, Sexual Abuse in the Third Degree and Sexual Abuse in the Second Degree) to the list of "family offenses" in CPL 530.11 and Family Court Act 812. The effect of these amendments (as Mr. Donovan should, but apparently does not, know) was to make all four of these misdemeanors "mandatory arrest" crimes when committed against a member of the "same family or household." (See CPL 140.10(4)(c)).

 

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