Domestic violence cases are notoriously difficult to prosecute.

But every once in a while, prosecutors get handed the tools for a conviction on a silver platter: An impartial eyewitness who just happens to be a police officer.

Such was the case in a domestic violence trial that made the local papers here in Maryland last week. A cop pulling into an Exxon station saw a man hit his girlfriend in the face three times, called in back-up and had the man arrested.

But according to Anne Arundel County Circuit Judge Paul Harris, who is "probably as against domestic violence as anybody, when the case is proven," one can’t simply assume that a woman who is being hit didn’t consent to the attack. "Sadomasochists sometimes like to get beat up," the judge reminded the courtroom–then acquitted the man.

The judge appeared to be in a snit because the girlfriend, the alleged victim in the attack, had disappeared, even though she had been ordered to testify. Ignoring decades of research proving that domestic violence victims are often too afraid and intimidated to testify against perpetrators, the judge discounted the female cop’s eyewitness account.

The Baltimore Sun reported on the judge’s comments: "The state is stepping into the shoes of the victim when she obviously doesn’t care," Harris told the prosecutor, according to a recording of the October 3 hearing. "It’s that big brother mentality of the state….But I have to decide the case based on what I have and I think a crucial element is missing." Judge Harris, defending his position, asserted that to prove this was truly a second-degree assault, it had to be clear that "the defendant’s actions were not consented to by the victim." He wondered, "How do you determine that without the victim?"

Hmmm.

"What would we do in a murder case?" Byron L. Warnken, a professor at the University of Baltimore School of Law, fretted to a Baltimore Sun reporter.

The Capital of Annapolis and Baltimore Sun reporters thoroughly chronicled this miscarriage of justice, but silence greeted this dangerous precedent from the rest of the nation.

If a woman falls in a parking lot and no one is around to hear, does she make a sound?