This article written by Jennifer Chase when she was a third-year student at Franklin Pierce Law Center; depicts what Felix Frankfurter may have been referring to when he said "Judicial judgment must take deep account of the day before yesterday in order that yesterday may not paralyze today." because this ruling paralyze's domestic violence victims to day.
Bar Journal - Summer 2006 for her references to case law and her sources click on the link below and you will find them at the bottom of her article; this is extremely well reasoned and points out flaws within the NH Judicial System.
McCarthy v. Wheeler: Double Jeopardy for Domestic Violence Victims?
By: Jennifer Chase
I. Introduction
A single mother is threatened with harm or physically hurt one more time by the father of her child. She has endured the abuse for years, but this time because he is no longer living with them, and she finally summons the courage to call the police. She is unfamiliar with the law and finds out that to get immediate protection she needs to obtain a temporary protective order and then file a domestic violence petition.1 At the court house, fills out the necessary paperwork and is granted a temporary protective order.2 Once she has the order she feels safer, because now, maybe, the abuse will finally end.
Next, she finds out she has to go to court and have a hearing.3 She knows this is going to make the father angry. But she has the temporary order, so she knows the father will get into trouble if he violates it and she thinks this will deter him from harming or threatening her. A hearing date is scheduled, but there are unanticipated continuances. Then, and for reasons the victim does not understand, the order is dismissed. She has no protection, and to obtain the protection of a protective order, she has to start the process over again. Since the father is already angry that she has involved the court in the first place, does she dare go down that road again? If the court could not offer her protection the first time around, will pursuing the same course protect her, or further provoke the father?
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