Judge’s decision to deny protective order was “reasonable application” of law, internal review committee says

Monitor staff
Published: 11/30/2021 3:16:23 PM

A circuit court judge’s decision to deny a protective order to a woman who police say was later shot in the head by her ex-boyfriend was a reasonable application of state law and the court hearing was conducted properly, an internal review found.

New Hampshire Supreme Court Chief Justice Gordon MacDonald requested a review of the denial of the domestic violence petition after the woman was critically injured two weeks ago.

The report released Tuesday also included recommendations to improve court practices related to domestic violence protection orders, update the legal definition of abuse, and increase access to legal representation for domestic violence survivors.

Circuit Court Judge Susan Carbon, a former Director of the Office on Violence Against Women at the U.S. Department of Justice, chaired a six-person committee, which used court records, recordings, more than 15 past Supreme Court decisions and an interview with Judge Polly Hall to evaluate whether the court’s denial represented a “reasonable application of current New Hampshire law to the facts of the case.”

The woman was shot outside of work on Nov. 15 in Salem, Mass. The man, 55-year-old Richard Lorman of Wilton, died from an apparent self-inflicted gunshot wound, police said. The woman — originally from Wilton but was staying in Hampton — had obtained a temporary restraining order against Lorman in September alleging that he abused her for years.

A month later, Circuit Judge Polly Hall dismissed the woman’s petition for a permanent order, writing “the court cannot find that the defendant’s conduct constitutes a credible present threat to plaintiff’s safety.”

Hall told the committee her conclusion was based on several factors, including the lack of any act of physical violence committed by Lorman since 2016, her understanding that his threats were related to “blackmail” and reputational or emotional harm, and her finding that the woman had a generalized fear of what the man might do, rather than a fear of a specific physical threat.

Hall also looked at several court cases addressing the issue of credible present threat. She found that while the man’s behavior was “controlling and coercive” and demonstrated his anger at her attempt to end their relationship, it didn’t establish a credible present threat to her safety as defined by the law, the review found.

State law allows judges leeway to “consider evidence of such acts, regardless of their proximity in time to the filing of the petition, which, in combination with recent conduct, reflects an ongoing pattern of behavior which reasonably causes or has caused the petitioner to fear for his or her safety or well-being.”

The committee recommended a number of changes to improve the process for obtaining civil protective orders for victims of domestic violence, including clarifying the forms used to petition the court, and making more information available for victims and advocates about the legal criteria for obtaining a protective order.

The woman did not have an advocate or attorney present at her October hearing, which is common for such petitions. According to the report, between 2010 and 2020 only about 11.6% of those seeking domestic violence orders of protection in circuit courts had legal representation. For plaintiffs seeking stalking orders of protection, only 4.6% had counsel.

The report also identified opportunities to bring state law governing domestic violence protective orders in line with modern views of intimate partner violence. Currently, circuit court judges are required to apply precedent based on “an outdated understanding” of this type of violence and the law doesn’t incorporate “evidence-based practices for identifying violence risk,” the report said.

“No one can dispute that the victim in this case was in extreme danger, and the system failed her when she courageously looked to the courts for help,” said Lyn Schollett, Executive Director of the New Hampshire Coalition Against Domestic and Sexual Violence. “This review affirms that the courts are not using the very plain language of the statute to make common sense decisions in protective order cases. Instead, judges in New Hampshire have essentially re-written the law and added requirements for victims to get relief that go far beyond what the legislature intended — requirements that show a fundamental misunderstanding of domestic violence.”

The New Hampshire Judicial Branch has formed a task force with members of the judicial system and domestic violence advocates to complete a systemic review of domestic violence court cases. The task force, which will be led by New Hampshire Supreme Court Associate Justice Anna Barbara Hantz Marconi and include Schollett, will meet this winter and aims to release a report by the end of February.

Material from the Associated Press was used in this report.

Cassidy Jensen bio photo

Cassidy Jensen has been a reporter at the Monitor, covering the city of Concord and criminal justice, since July 2021. Previously, she was a fellow at the Toni Stabile Center for Investigative Journalism at Columbia University, where she earned a master's degree. Her work has been published in Documented, THE CITY, Washington City Paper and Street Sense Media. When she's not at City Council meetings, you can find her hiking in the White Mountains.

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