Last month, District Attorney George Gascon filed misdemeanor charges against Mirkarimi for domestic violence battery of his wife, child endangerment and dissuading a witness, his wife. At the time, I questioned whether San Francisco wants to throw the full weight of the law to prosecute a man accused of bruising his wife's arm.
I appreciate that Gascon is in a difficult position. Bay Area Legal Aid staff attorney Minouche Kandel noted that Mirkarimi is the "chief law enforcement officer of the sheriff's office" and that he carries a gun. (Actually, the sheriff surrendered his gun when he was charged.) Kandel believes that the DA has an obligation to make sure that "a person in a position of authority with a gun is not abusing that power in their home." Besides, if Gascon did not file charges, there would have been an uproar.
On the other hand, Lopez does not want the criminal case to continue and objects to the restraining order that prevents Mirkarimi from talking to her. (Last week, a judge granted Mirkarimi visitation rights with the couple's 2-year-old son.) A former telenovela actress from Venezuela, Lopez told Caracas radio station Noticias24, "This is a case of political persecution."
And: "I am not a little Indian girl gringo victim."
Yet she may be a victim of a system that, in the worthy goal of trying to protect women, infantilizes them.
There's a presumption, argued KGO talk show host, attorney and feminist Christine Craft, that a woman "can't possibly know what's best for her. She's making it up."
The system now treats women, according to Craft, as if they were "6-year-old girls" who "have to be told what it is they think."
Paula Canny, whom Lopez hired as her attorney, said, "Eliana in her own right is a very powerful woman." Lopez is a successful actress and a strong woman. Thus, the stay-away order is both "paternalistic" and "rude."
In addition, Canny argues, the DA "overcharged" a case that never should have been brought to court. On New Year's Day, Canny said, Lopez went to vent to a friend -- never dreaming the friend would call the police. Canny talks about Madison as if Madison were Linda Tripp.
Because Madison is a law school graduate -- although, I should report, she is not a member of the state bar -- Lopez also sought "free legal advice about what would happen if there was a custody dispute," said Canny. Canny plans to ask the court not to admit the Madison video as evidence, because Lopez thought it was protected under attorney-client privilege.
Kandel supports the decision to prosecute and the restraining order that keeps Mirkarimi away from Lopez. Authorities don't always know if a woman is being coerced at home, she said. Kandel has known women who have received phone calls from their batterers from inside jail, as well as fathers who have threatened to win custody of children to intimidate women.
Surely, I venture, if Mirkarimi and Lopez are apart through the start of the trial on Feb. 24, the court should not consider Lopez to be under coercion.
Not necessarily, said Kandel, who already had explained, "A crime is technically against the state."
"The battered (women) syndrome will last as long as the prosecutor wants it to last," Canny opined. "It's voodoo science, to some extent."
It's one thing when a woman complains to police and then changes her mind. That did not happen here. Ditto if a woman shows up at the hospital with a broken arm, which also did not happen.
If I believed that Mirkarimi did bodily harm to Lopez, I wouldn't write this. But to believe that, I have to assume that Lopez is lying or that she doesn't know what is good for her.
As a lawyer who has spent her career empowering women, Kandel understood my qualms. She observed, "You don't want the criminal justice system to be one more coercive power in their lives."
That's why Kandel wants the case to go to trial.
Riverside County Supervising Deputy District Attorney Gerald Fineman assured me that prosecutors do charge men for bruising a woman's arm: "That is a battery under the law, whether it's one bruise or 10 bruises." Also, it is not unusual to charge a defendant with battery without the victim's complaining to police.
When the accused isn't a big name, few people sweat the civil-liberty niceties. "You see it all the time. I won't say nobody cares," Fineman added, but "nobody makes a big story of it, either."