Refugee accused of domestic violence uses ‘cultural incompetency’ defense

A man accused of six domestic-violence crimes evaded prosecution after his lawyer argued that the Congolese immigrant didn’t have the the cultural competency to follow American law.

According to the New Hampshire Union Leader, that decisions is one example among many that were highlighted as questionable by Attorney General Gordon MacDonald.

Last month, MacDonald reviewed domestic-violence prosecutions in Manchester, and his critique of the cases led veteran City Solicitor Tom Clark’s office open to fierce scrutiny, and Clark himself to retire.

The Congolese immigrant, Augustin Bahati, 33, was accused of striking, pushing, grabbing, kicking and pulling out the hair of a pregnant woman.

Manchester domestic-violence prosecutor Andrea Muller dropped the six misdemeanor charges against Bahati. Notes made by District Court Judge William Lyons indicate that all parties agreed Bahati was “not competent”, “not restorable” and surprisingly, “not dangerous.”

“Consequently, the court must dismiss the charges,” Lyons wrote.

Although New Hampshire law uses experts to determines competency failures due to mental illness or mental disability, Associate Attorney General Jane Young says there’s no provision for “cultural incompetence.” Young said the case was dismissed because, “Attorney Muller did not challenge the finding of the forensic examiner.”

Bahati’s escape from justice was also commented on by Mayor Ted Gatsas, who acknowledged, “Every victim of domestic violence deserves justice. We need to make sure we defend them.”

The Union Leader reported that all refugees are enrolled in “cultural orientation classes” when they first arrive in the U.S.  Bahati had participated in such a class, which teaches refugees about the legal system and domestic abuse laws.

Gatsas, who is currently filling in for the recently retired Clark, has met with city prosecutor staff. He says they will comply with the tasks MacDonald’s critique listed as items to be completed, such as written protocols for case management, employee supervision, record keeping and training.  Organization checklists and forms are also to be created.

Muller has been singled out by MacDonald. She will be closely supervised and attend training sessions, according to reports. Her continued employment may be in question and her future decided later this month.

Meanwhile, prosecutors continue reviewing all domestic-related cases where the charges were not pursued if the accused sought “counseling, therapy or similar actions.” Young cannot discuss cases that are currently being reviewed, but speaking in generalities about competency evaluations, she said that in order to determine incompetency, a forensic examiner must establish that:

  • A defendant suffers from a mental disease or defect, and lacks the ability to rationally understand the case.
  • The defendant cannot be restored to competency in 12 months.
  • The defendant is not a danger to himself or others.

All criteria must be met for the case to be dismissed.

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