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For the week of November 8 through 14, 2000

Supreme Court hears Blaine domestic violence case


"I’m not saying that domestic battery should be condoned, but the playing field needs to be well defined."

Defense attorney Derek Pica


By GREG MOORE
Express Staff Writer

A Blaine County domestic violence case heard last week by the Idaho Supreme Court will help determine whether the state’s felony domestic battery law remains in effect.

Passed in 1998, the law elevates to felony status any battery committed in a domestic situation and causing physical injury. Normally, only "aggravated battery," causing great bodily harm or involving a weapon, can be prosecuted as a felony.

Bellevue resident Steven Gregory Larsen was charged under the statute on Oct. 8, 1998, for allegedly hitting and kicking his wife and then dragging her across the carpet in their home.

However, even some prosecutors admit the law is poorly worded. Fifth District Judge James May upheld a magistrate judge’s ruling during Larsen’s preliminary hearing that declared the law so badly written as to be unconstitutional. That ruling was appealed by county Prosecuting Attorney Doug Werth to the Idaho Supreme Court.

The court, sitting for three days in Twin Falls, heard arguments on the case Thursday.

Boise attorney Derek Pica, representing Larsen, told the court that Idaho law gives prosecutors overly broad discretion in deciding whether to charge domestic battery cases as felonies or misdemeanors, thereby violating a constitutional guarantee of equal protection to all defendants.

"I’m not saying that domestic battery should be condoned," Pica said. "But the playing field needs to be well defined."

Representing the state, former Idaho deputy attorney general Alison Stieglitz acknowledged the felony domestic battery and misdemeanor battery statutes overlap, but argued a constitutional violation occurs only when a prosecutor’s conduct is deliberately selective or malicious.

Pica also told the court the felony domestic battery law, as written when Larsen was charged, could be interpreted to include unintentional acts, and was therefore unclear as to the degree of criminal intent it required. (The Legislature has since amended the law to address that deficiency.)

"Surely, you’re not arguing that Mr. Larsen believed that beating up on his wife was an acceptable form of conduct," Chief Justice Linda Copple Trout replied. "How could there be any confusion whatsoever that this statute will cover that situation?"

Pica responded that Larsen’s actions were clearly criminal, but should be viewed as "classic misdemeanor battery." Earlier in his presentation, he had told the justices of a former client of his who had been arrested after swatting her husband on the ankle with a broom, leaving bristle marks.

"There is no question that if the court buys the state’s argument, this could be prosecuted as a felony in the state of Idaho," he said.

Trout replied that if the Legislature’s wishes to punish such conduct as a felony, it has the right to do so.

The Larsen case is one of several throughout Idaho that have produced appeals based on alleged deficiencies in the felony domestic battery law. Five more are on the Supreme Court’s docket for December. On Thursday, Justice Jesse Walters suggested the court may wait to hear those cases before deciding the Larsen appeal. Whether or not that occurs, the court’s history on handing down decisions indicates that a decision on the Larsen case probably will not appear for several months.

Domestic battery is one of the more common violent crimes committed in Blaine County. Fifth District Court in Hailey does not keep statistics on domestic battery convictions, but the Advocates for Survivors of Domestic Violence, a non-profit organization, reports that from July 1, 1999, to July 1, 2000, the group provided clients with 476 counseling sessions and help obtaining 77 court protection orders. During the three-month period between last July 1 and Sept. 1, the Advocates provided 224 counseling sessions and help with 30 court protection orders.

Between July 1, 1999, and July 1, 2000, 35 adults and 19 children stayed at the Advocates’ shelter in Hailey. Between last July 1 and Sept. 1, nine adults and 12 children stayed at the shelter.

Ellen Nasvik, the group’s victims’ advocate, called the felony domestic battery law an important tool in helping curtail violent behavior. She said that previous to the law’s adoption, even cases involving considerable injury could only be prosecuted as misdemeanors.

"We’d see these people back with some other woman and doing the same things two years later," Nasvik said.

 

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