NEW BEDFORD — A 54-year-old New Bedford man accused of assaulting and strangling his girlfriend last year had his charges dismissed on a simple defense: He’s a military veteran.
Allan T. Santos’ attorney got him cleared of the charges by invoking the state’s Valor Act, which steers veterans into treatment programs and away from jail.
With the approval of Bristol County Judge John P. Stapleton, and with a period of counseling through the Department of Veterans Affairs, the charges will be erased from his criminal record, as if he had never been accused.
But Denise Bastos will never forget what she says happened on Santos’ sailboat in September 2016 after she confronted him with suspicions of infidelity: a shift in his demeanor so alarming that she started reminding him, “It’s me. It’s D.D.”
She remembers him throwing her across the boat, where her head hit a teak panel. She remembers — before the purple dots seeped into her view and tunnel vision closed in — how red his face looked as his hands closed around her neck, pressing down.
“It’s like you’re looking at the devil,” she said.
In an interview, Santos vehemently denied all the charges and blamed his former girlfriend for fabricating them to try to ruin his life. But the court never made a ruling on the facts of the case. Instead, the judge made the call based on Santos’ military background — four years in the Navy in Hawaii in the 1980s.
Bastos’ lawyer bristles at the idea that Massachusetts law allows a man to evade charges of assault based on his service to his country — and also that nothing in the law seems to prohibit the same man from citing the Valor Act again and again.
“This is an automatic get-out-of-jail free card,” protested attorney Christopher Trundy. “Go to two or three sessions of counseling at the VA, and you’re good to go for the next one.”
The Valor Act, signed in 2012 by then-governor Deval Patrick, supports veterans in a variety of ways — from providing small-business financial assistance, to easing school transfers for their children, to extending professional licenses to service members on active duty. It gives district court and Boston Municipal Court judges the discretion to drop criminal charges and instead send veterans into diversion programs, where they can undergo counseling or rehabilitation.
While the law was aimed at helping veterans who suffer from post-traumatic stress disorder or substance abuse, it was not limited to them, or to service members who saw combat. Any veteran with no prior criminal convictions or outstanding warrants is eligible.
The Valor Act can’t be applied to crimes that would be prosecuted in higher courts, and there’s an exception for crimes against elderly people. But in district courts, there are few restrictions. In a case heard by the Supreme Judicial Court last spring, the justices unanimously agreed that the Valor Act could be applied to drunken driving cases.
State and court officials do not track Valor Act cases and could not say how frequently the act is applied to cases of domestic abuse or other violent crimes.
Santos’ case was typical but for one aspect: The Valor Act is supposed to be applied before charges are brought at arraignment. The judges at his initial court appearances did not deem him eligible for the Valor Act. A third judge reversed that course and applied the act to his case retroactively.
A prosecutor from Bristol District Attorney Thomas Quinn’s office had argued against the application of the Valor Act, and Quinn maintains it should not have been applied in this case.
“The Valor Act is appropriate in some cases and should not be invoked in others, especially when it’s a crime of violence or the defendant has a previous criminal record,” Quinn said through a spokesman. “In this case, the Valor Act should not have been retroactively applied by the court, based on all the facts and circumstances.”
Bastos, 55, a piano teacher and performer who lives in New Bedford, said she had known Santos for most of her life; he and her brother were friends in high school, and she spent time with his wife and daughter before they divorced. Their relationship turned romantic in 2014, but Bastos said she began seeing troubling signs the following year, when he became agitated over his financial problems.
Their on-again-off-again romance and increasingly volatile arguments culminated in the fight on his sailboat in September 2016.
Santos, she said, choked her and punched her twice, and wielded a wood panel as if he was going to strike her in the head with it. “So this is it — you’re going to kill me?” she said she asked him. “Is this what you want your daughter to know? You’re a killer?”
She said that he then dropped the piece of paneling and locked her in the boat for about a half hour before taking them back to shore. There, he went to the police station and filed a report accusing her of attacking him, a police report shows.
In an interview with the Globe, Santos maintained that Bastos was the aggressor and that he never hit or choked her.
He said he locked her in the boat only to ward off her attacks. He showed police a scratch he had suffered, and noted that she didn’t go to the police until after he had filed charges. A restraining order and charges he brought against her were ultimately dropped.
The court file includes photos showing bruises on Bastos’ jaw and neck, but he contends that she faked those.
“This was all a tactic to destroy my life, because she was angry,” Santos said.
Santos was arraigned on charges of assault and battery, assault with a dangerous weapon, and strangulation in January 2017.
But his fortune turned at a pretrial hearing in August, when a new defense attorney argued before a third judge that the Valor Act was applicable.
Santos’ lawyer, Steven M. Bausman, emphasized the toll a conviction would take on his career. A senior video engineer on an ocean exploration vessel who often travels in international waters, he needs security clearance to work. And during the hearing, the lawyer likened his scientific contributions with the Ocean Exploration Trust to service to his country.
“I would say that he’s still serving our government today,” Bausman said.
Assistant District Attorney Christopher Abreu opposed the application of the Valor Act, and said Santos had prior criminal charges that the judge should consider: He was charged with assault and battery and breaking and entering with intent to commit a felony in 1992. Though that case was continued without a finding, “he does have a history of the allegations that are before you today,” Abreu told the judge.
Nonetheless, the judge allowed the Valor Act to be applied, citing the parties’ “two competing interests.”
“The reason why this statute passed is to give some discretion to district court judges to acknowledge or take into consideration someone’s service to the country, and to wonder if there’s been some success since the incident and if the counseling that he has undergone continues, will it make a difference, and is that the better way to proceed?” Stapleton said. “So the bottom line is, I’m going to find it is.”
The judge initially ordered Santos to continue therapy he had already begun through the Department of Veterans Affairs for six months. But it is no longer mandated by the court, and he has been going to psychotherapy voluntarily, Santos said.
Toni K. Troop, director of communications for Jane Doe Inc., a statewide coalition that fights domestic violence and sexual assault, said that when someone is sent to a therapy program in lieu of a criminal penalty, the program should be focused on domestic violence, rather than nonspecific psychotherapy like Santos had.
She also noted that, in domestic violence cases, strangulation is typically considered a high-risk factor for further abuse. It can lead prosecutors to seek a dangerousness hearing, where evidence can be assessed to determine whether the suspect presents an imminent danger and should be detained pretrial.
“When the Valor Act is invoked, it needs to comport with what we also know about dangerousness when it comes to domestic violence,” Troop said. “It should not be an automatic diversion from accountability for the accused.”
The district attorney did not seek a dangerousness hearing in this case or an indictment on the choking charge, a potential felony that would have moved the case to Superior Court and out of the judge’s discretion to consider the Valor Act.
A spokesman for the DA’s office, Gregg M. Miliote, said the prosecutor did not seek a hearing, in part because Santos had appeared in court on his own volition.
“The immediacy of the potential danger that we would have to prove to the court had passed in this case by the time it finally came up for arraignment,” he said. “It would have been very rare for a judge to have allowed our dangerousness motion in this case.”
However, he said, that did not indicate that the office didn’t take the case seriously.
“The prosecutor strongly believed this was a case that could result in jail time, and we vehemently argued against the use of the Valor Act,” he said.
In addition to giving Santos the benefit of the Valor Act, the judge also granted a motion by Santos’ lawyer to vacate the case, clearing his criminal record of any reference to the episode.
To Trundy, Bastos’ lawyer, that opens up the potential that the same suspect could be repeatedly arrested and let off on similar charges. He believes the case represents an unintended consequence of a well-intentioned law.
“I don’t think this is what anybody anticipated this program would be used for,” he said.