Navigating the Juvenile Justice System, cont’d. Into the Courts.

When I signed the petition against He Who Must Not Be Named on August 31, 2011, the charge was domestic violence — 3rd degree.

Here’s the Alabama definition:

Section 13A-6-132 – Domestic violence – Third degree.

(a) A person commits domestic violence in the third degree if the person commits the crime of assault in the third degree pursuant to Section 13A-6-22; . . .and the victim is a current or former spouse, parent, child, any person with whom the defendant has a child in common, a present or former household member, or a person who has or had a dating or engagement relationship with the defendant.

So basically, domestic violence — third degree is the same as assault–3rd degree except that the defendant had some kind of domestic relationship with the victim, including  “a dating or engagement relationship.”

What then is assault–3rd degree?

Section 13A-6-22 – Assault in the third degree. (1) With intent to cause physical injury to another person, he causes physical injury to any person; or (2) He recklessly causes physical injury to another person; . . .(b) Assault in the third degree is a Class A misdemeanor.

Class A misdemeanors  are the most serious of 3 levels of misdemeanors, with jail time of up to one year possible. Other examples (keep these in mind) are  desecration of venerated objects. and  disrupting a funeral or memorial service.

After the petition was filed but before the arraignment, my daughter’s medical problems escalated. She was diagnosed with migraines linked to post-concussive syndrome. A opthamalogist concluded that she had a bruised optic nerve as a result of blunt force trauma. He could not predict whether her eye would improve or not, but said that if it did, most improvement will take place in the first six months. Her vision is not likely to ever be the same as it was pre-injury, however.

This was a major blow, as you can imagine. I told Cindy Conrad at the Neeves Center about it; I wanted this doctor’s report added to the file. She said she thought the Office of the District Attorney should be informed because if there is  serious physical injury, the charge changes from misdemeanor-3rd to assault 2nd degree. This is the difference relevant to our case:

Section 13A-6-21 - Assault in the second degree. (1) With intent to cause serious physical injury to another person, he or she causes serious physical injury to any person. . . . Assault in the second degree is a Class C felony.

A Class C felony may result in imprisonment for not more than 10 years or less than 1 year and 1 day.

Obviously, the stakes are a lot higher. This means that the State’s burden of proof is tougher.

I submitted medical documentation regarding both the ophthalmological damage and post-concussive syndrome. It wasn’t until my first conversation with the Assistant District Attorney just two full working days before the trial that I learned that the medical records were not admissible. I figured out this was because the defendant has a right to cross-examine the prosecutor’s witness, and pieces of paper can’t be cross-examined. The doctors would have had to have been subpoenaed. They weren’t. No one was.

Without medical testimony, there was no way a charge of 2nd degree assault was going to stick. The charge reverted to 3rd degree Domestic Violence.

Before leaving this, let me draw your attention to these phrases from the definitions of 3rd degree and 2nd degree assault, emphasis added:

“He recklessly causes physical injury to another person” and “he or she causes serious physical injury to any person.”

Psychological damage doesn’t count.

Now, consider these laws and remember that desecration of venerated objects. and  disrupting a funeral or memorial service are also class A misdemeanors.

Section 13A-11-163 - Defamation. Any person who writes, prints or speaks of and concerning any woman, falsely imputing to her a want of chastity. . . punished by fine not exceeding $500.00 and imprisonment in the county jail, or sentenced to hard labor for the county, not exceeding six months, one or both, at the discretion of the jury.

Section 13A-11-13 - Abuse of corpse. (a) A person commits the crime of abuse of a corpse if, except as otherwise authorized by law, he knowingly treats a human corpse in a way that would outrage ordinary family sensibilities. . . . Abuse of a corpse is a Class C felony [same as 2nd assault!].

What kind of physical injury is caused by saying a woman isn’t chaste? None. Would her psychological suffering be comparable to that of a woman beaten viciously by someone who just hours before had been kissing her? Doubt it.

What kind of physical injury is suffered by an abused corpse? Corpses are past suffering, right? So the law against Abuse of Corpse must be intended to spare the living psychological damage.

No physical injury to a person results from desecration of venerated objects or disrupting a funeral, either. Psychological injury might, but you’d have a hard time convincing me it would be as significant and long-lasting as that suffered by victims of assault.

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