What if Ray Rice had been arrested in Manhattan? Analyzed by a Defense Attorney and former Domestic Violence Prosecutor.

There has been a media firestorm about NFL running back Ray Rice’s assault of his wife Janay Rice. While exiting an elevator in Atlantic City, NJ, Ray Rice – a powerfully built football player – punched his wife in the face and appeared to knock her unconscious. He then dragged her along the floor of the casino; the entire gruesome episode was captured on videotape and Ray Rice was arrested.

Generally, the reaction from the public and other players has been appropriately scornful of this detestable conduct. After initially suspending him for just a few games (a decision for which the league commissioner, Roger Goodell, received considerable and deserved criticism), the NFL suspended him from playing for a year. His team waived him despite his multi-million dollar contract and importance to their on-field success. Ray Rice’s Nike sponsorship has been canceled and his high jersey even removed from the display case of his high school. If there’s any silver lining to this terrible tragedy, it is that it has forced people to have frank conversations about the problem of domestic violence.

Some people have been wondering aloud, also, about the disposition of the criminal case that arose from this act. Ray Rice was indicted for aggravated assault but ultimately allowed to enter into a pre-trial intervention (or diversion) program, whereby he will avoid jail or even a criminal conviction so long as he attends and successfully completes an anger management program. Also, seemingly, there is no order of protection preventing him from interacting with his wife.

The author of this post was previously interviewed about this disposition for USA Today, and offered the opinion that this disposition was “inappropriate”. The Atlantic County prosecutor that made this plea bargain and New Jersey defense attorneys that practice in Atlantic County have responded by saying that Ray Rice received a typical plea bargain and did not receive preferential treatment despite his status and money. The author has no reason to doubt that this is true, but the fact remains, that this disposition was shockingly lenient. Indeed, one need only consider how this case would have played out in nearby Manhattan as a comparison.

Ray Rice would have been charged with a class A misdemeanor punishable by up to one year in jail called Assault in the Third Degree, in violation of Penal Law § 120.00. He also would have been forced to abide by a full order of protection preventing him from returning to his victim’s home (even if it is also his home) or having any contact with her whatsoever, in person or on the telephone, etc. during the pendency of the case. Oftentimes, prosecutions are impossible when victims refuse to cooperate (a factor cited by the New Jersey prosecutor), but here, the victim’s cooperation was not necessary for the prosecutor to get a conviction at trial or proceed with the case because a videotape made everything plain and clear.

Some people have also been critical of or very surprised by some of the supportive public statements made by Ray Rice’s victim, his wife Janay, but those statements are hardly surprising to anyone familiar with domestic violence. To say that the psychology of a battered spouse is often complicated would be an understatement. One can read the outpouring of Twitter statements under the #whyistayed hastag to understand some of the conflicting emotions that abuse victims often feel. Here, Janay made it clear that she did not want her husband to suffer serious legal or financial consequences for his actions, and that she wanted her relationship with him to continue. The prosecutor cited Janay’s desires for leniency as a justification for the plea bargain, while also describing the plea bargain as typical for first-time offenders in domestic violence cases.

However, there is another approach, and it is favored by the Manhattan District Attorney’s Office: ignore the desires of domestic violence victims. Time and time again domestic violence victims in Manhattan beg prosecutors to remove orders of protection so that they can be with their abusers, and Manhattan prosecutors and judges routinely – almost reflexively – refuse to budge. It is not uncommon to see a domestic abuse victim sitting in the courtroom at a criminal court arraignment in Manhattan begging the judge to allow her husband/boyfriend to come home, only to see the judge look up at her and then coldly issue a full stay-away no-contact order of protection. These orders of protection have teeth too: Manhattan police officers perform routine home visits in pending domestic violence cases to catch defendants back at their apartments with their victims, and will make arrests for Criminal Contempt on the spot.

The assumption behind this approach is that domestic violence victims don’t make good decisions for themselves when it comes to their abusers. In NJ, apparently, the prosecutor will hear out the victim and take his/her opinion into consideration when making a plea bargain offer. (Anecdotally, the Queens County D.A. in New York oftentimes takes a similar approach). Basically, that just isn’t the case in Manhattan, and I cannot possibly explain why one jurisdiction does it differently than the other.

Although New York County has a “pre-trial intervention” program like the New Jersey equivalent called an “ACD” (adjournment in contemplation of dismissal), only rarely does a domestic abuser get offered such a disposition on a very serious assault case like this one (which is not to say that some assault cases are not serious, just that the violence in this case was particularly shocking in its brutality). Moreover, it would be very unlikely to happen in a case with a videotape like this one because the number one weakness in most domestic violence prosecutions – that it cannot be proven without a cooperative victim – was not present here. Yes, Manhattan does refer defendants in domestic violence cases to various domestic-abuse-counseling and anger-management programs, but that is usually done in conjunction with a plea to a violation AND, importantly, also in conjunction with a full-order of protection in favor of the victim. But in this case, with a videotape showing such a brutal assault, Ray Rice would likely be looking at a criminal conviction and the possibility of jail or probation, plainly put. That would be the more expected disposition with evidence this strong and facts this outrageous. I’ve worked on hundreds of domestic violence cases in this jurisdiction on both sides of the aisle and can state that confidently.

Consider for a moment this paradox: if Ray Rice had hit an ordinary man or a woman with whom he was not in a romantic relationship in that way, he would probably be in serious jeopardy of going to jail for it in almost any jurisdiction. Right now, this office is representing a young man charged with punching another man one time in the face, and the Manhattan District Attorney’s Office is recommending to the judge that he receive a sentence of one year in jail. I imagine that the New Jersey prosecutor that gave Ray Rice this plea bargain routinely expects people to plead guilty to criminal charges after being indicted for aggravated assault, especially when there’s conclusive videotaped proof the person’s guilt. So why is it that a football player with bulging biceps can punch a woman in the face and leave the courthouse for good without ever having spent a day in jail or any sort of criminal record? One wouldn’t likely get that result if one punches a man in an elevator with a video surveillance camera.

I think the NJ prosecutor needs to answer that question more adequately than he already has.

(Note: there are thousands of assault cases in Manhattan every year and they have widely different results. Indeed, this office has gotten extraordinary results on a number of occasions. But the fact remains that an “ACD” with anger management and no order of protection in a case this serious with a videotape would not be a “typical” outcome in NY, it would be a highly unusual or uncommon result – an outlier, really.)

The author of this post, Matthew Galluzzo, is a criminal defense attorney and former Manhattan domestic violence prosecutor. In addition to defending criminal defendants, he also represents victims of domestic violence and sexual abuse in civil litigation.