Lynn Hecht Schafran*, "There's No Accounting for Judges," 58 Alb. L. Rev. 1063 (1995)
* Director, National Judicial Education Program To Promote Equality for Women
and Men in the Courts, a project of the National Organization of
Women's Legal Defense and Education Fund (NOW LDEF) in cooperation with the
National Association of Women Judges. B.A., Smith College,
1962; M.A., Columbia University, 1965; J.D., Columbia University School of Law,
1974.
We have become increasingly content - even complacent - to serve as technicians
and tinkerers in the law rather than aspiring to the role of
transformers, system shakers who risk alienation but seek real substantive change.
n1
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n1. Craig Haney, Psychology and Legal Change: The Impact of a Decade, 17 Law
& Hum. Behav. 371, 384 (1993).
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Introduction
Despite over two decades of reform, fundamental failures persist in the justice
system's response to domestic violence. n2 Society now widely
accepts elimination of intrafamily abuse as a crucial goal, and it has been
illegal in most states since the late nineteenth century. n3 But the
problem remains one of epidemic proportions. As documented in Part I of this
Article, battering by husbands, ex-husbands, or lovers is the single
largest cause of injury to women n4 in the United States, n5 and accounts for
approximately thirty percent of all murders of women. n6 Physical
aggression occurs in at least one out of four marriages, and comparable rates
exist among couples who are living together, engaged, or dating.
n7 Domestic violence is also a major contributing factor to other social ills
such as child abuse and neglect, female alcoholism, drug abuse,
mental illness, attempted suicide, and homelessness. n8
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n2. No single term can adequately capture an individual's experience of domestic
violence; I use the terms "victim," "battered woman," and
"survivor" interchangeably.
n3. See Elizabeth Pleck, Wife Beating in Nineteenth-Century America, 4 Victimology: An Int'l J. 60, 60-63 (1979).
n4. The vast majority of domestic violence cases involve male perpetrators
and female targets. Although cases exist in which the gender roles
are reversed, or involve same-sex intimate abuse, I will refer to perpetrators
primarily as male and targets primarily as female.
n5. See Susan A. MacManus & Nikki R. Van Hightower, Limits of State Constitutional
Guarantees: Lessons from Efforts to Implement Domestic
Violence Policies, 49 Pub. Admin. Rev. 269, 269 (1989).
n6. See Bureau of Justice Statistics, Violence by Intimates v (1998).
n7. See Jan E. Stets & Murray A. Straus, The Marriage License as a Hitting
License: A Comparison of Assaults in Dating, Cohabiting and Married
Couples, in Physical Violence in American Families: Risk Factors and Adaptations
to Violence in 8,145 Families 227, 234; Irene H. Frieze & Angela
Browne, Violence in Marriage, in 11 Family Violence: Crime and Justice - A Review
of Research 163, 179 (Lloyd Ohlin & Michael Tonry eds.,
1989); David B. Sugarman & Gerald T. Hotaling, Dating Violence: Prevalence,
Context, and Risk Markers, in Violence in Dating Relationships 3,
6-7 (Maureen A Pirog-Good & Jan E. Stets eds., 1989).
n8. See Rita Thaemert, National Center for State Legislatures, Til Violence
Do Us Part 26 (Mar. 1993) [hereinafter Til Violence Do Us Part]; Jane
H. Pfouts, Violent Families: Coping Responses of Abused Wives, 57 Child Welfare
101, 105 (1978).
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Yet centuries of strong opposition to - or deep ambivalence about - state
intervention in family violence cases has long undermined any
meaningful government response. As detailed in Part II, not long ago the law
explicitly endorsed domestic violence, upholding a husband's right
to physically "chastise" his wife. It is only during the last thirty
years that public awareness of intimate abuse, the perception that it is
unacceptable, and the political will to effect reform have increased, resulting
in substantial improvements on the legislative front. During this
period, every state has enacted civil laws designed to protect victims of family
violence, and Congress has appropriated considerable funding of
further efforts to combat the problem. But the state's response to domestic
violence remains inadequate. Why?
In contrast to the remarkable progress made by legislators, those responsible
for applying and enforcing the law - prosecutors, judges, and the
court system - have lagged far behind. It has long been common practice for
police to refuse to arrest, for prosecutors to decline to press
charges, and for judges to be reluctant to issue civil protection orders or
impose meaningful sentences on batterers. Overall, the system's
response to domestic violence has been unresponsive and oriented toward non-enforcement.
A law is only as good as the system that delivers on its promises, and the
failure of the courts and related institutions to keep up with
legislative progress has had a serious detrimental impact on efforts to combat
domestic violence. This gap, between the responsive legislative
branch and the unresponsive judicial and executive branches, suggests where
the next generation of reform must focus - on a fundamental
restructuring of the traditional justice system's approach to this age-old social
problem.
As discussed in Part III, the criminal justice system still requires substantial
improvement, despite the recent enactment of some reforms.
Certainly, costly lawsuits and mandatory arrest laws have reduced instances
where the police refuse to respond or take effective action in
domestic violence situations. n9 And prosecutorial refusal to press criminal
charges in most intrafamily cases has diminished, in a smattering of
jurisdictions, with the formation of specialized domestic violence units and
the adoption of "no-drop" prosecution policies. n10 These changes
have increased general deterrence of domestic violence crimes and greatly improved
the prospects for victim safety. But they also raise new
concerns. A survivor may now be forced to assist in the criminal prosecution
of an abusive partner, regardless of her physical danger from
retaliation assault, her cultural and religious misgivings about breaking up
the family, her economic vulnerability to the loss of spousal support,
and her individual need for agency and control. These difficult issues underscore
the need for further improvements, such as the expansion of
specially-tailored prosecution strategies and an increased role for lay victim
advocates. An increase in victim advocacy services reduces some
survivors' dependency on the criminal justice system and helps them find the
strength to escape the cycle of abuse on their own. And for those
who need government intervention, a lay advocate can amplify a victim's voice
so that a prosecutor can better shape his case to meet the
victim's needs.
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n9. See Joan Zorza, The Criminal Law of Misdemeanor Domestic Violence, 1970-1990,
83 J. Crim. L. & Criminology 46, 53-65 (1992); Del Martin,
Battered Wives 92 (1981); Murray A. Straus, Behind Closed Doors: Violence in
the American Family 232 (1980).
n10. See Cheryl Hanna, No Right to Choose: Mandated Victim Participation in
Domestic Violence Prosecutions, 109 Harv. L. Rev. 1849, 1852-53,
1861-62 (1996).
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The piecemeal nature of the traditional court system, explored in Part IV,
presents further obstacles for battered women seeking justice.
Incidents of domestic violence typically trigger multiple civil and criminal
cases, each with distinct and complicated intake processes that occur
in different parts of the courthouse or even in different court buildings located
miles apart. This fragmented process hopelessly confuses most
victims, and few manage to file for all the forms of complementary relief they
need. Those who succeed are then faced with a different judge on
each case, each of whom proceeds in an informational vacuum, with no awareness
of related cases. A typical family can find itself coping with
multiple, conflicting orders that simultaneously govern its existence.
One promising solution to these problems has recently been embraced by a handful
of jurisdictions: the creation of integrated, specialized
domestic violence courts. Dedicated exclusively to cases involving allegations
of intimate abuse and to the integration of civil and criminal
dockets, such a court can provide the kind of comprehensive, coordinated response
to family violence that is the key to effective intervention.
n11 A unified intake center can assist with the filing of all civil and criminal
claims, and one specialized judge can be assigned to deal with all
issues confronting a single family or intimate partnership. The success of the
District of Columbia's new Domestic Violence Court illustrates the
potential benefits of an integrated intake and court calendaring system.
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n11. Specialized courts created to address a particular subject area are slowly
becoming a staple of many jurisdictions around the country. The
concept of the "drug court" is a now-familiar alternative approach
to handling criminal prosecutions of less serious drug offenders. See generally
Jeffrey Tauber, President's Perspective, National Association of Drug Court
Professionals News 1, 1, Winter, 1997. Several states have
implemented or are seriously considering implementing a unified "family
court." See National Center for Juvenile Justice, National Council of
Juvenile and Family Court Judges, Snapshot: Family Courts in the United States
(Nov. 1996); The Illinois Supreme Court Special Commission on
the Administration of Justice, Final Report Part II 38-39 (Dec. 1993) (on file
with author).
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But an increase in information-sharing can create its own problems. For example,
it increases the likelihood that battered women who come
forward to seek a civil protection order will expose themselves to government
charges of "failing to protect" their children from the batterer's
abuse. This Article explores ways to minimize this disincentive to obtaining
assistance, and to maximize the remedial resources available to both
women and children who have suffered physical and emotional harm.
Finally, Part V suggests ways to root out the long-standing hostility exhibited
by court personnel and judges toward domestic violence
complainants. Most judges and clerks have little understanding of domestic violence
as a complex web of social and psychological difficulties;
instead, they operate from a lifetime of exposure to the myths that have long
warped the public's attitude toward the problem. The result is a
widely prevalent anti-victim bias. Judges and clerks tend to be easily frustrated
with battered women. They perceive victims as "refusing" to
leave violent relationships, and misinterpret victim behavior as intentional
when in fact it may be symptomatic of the psychological trauma
induced by extended abuse. Judicial education, in conjunction with extensive
experience with domestic violence cases, can help correct this
problem. But any judicial training program must be designed with care to preserve
neutrality, and the defense bar concern that judicial
education may create an anti-perpetrator bias must be taken seriously by the
victim advocacy community. A direct relationship exists between
perceptions of "procedural justice" and perpetrator compliance with
court orders, and issuance of a civil protection order will mean little to a
victim if the batterer views the order as illegitimate and therefore feels free
to ignore it.
Despite their relatively poor track records, prosecutors, judges, and the
courts can play a constructive role in combating family abuse. As the
last and sometimes the only resort of victims seeking protection, n12 it is
essential that these sectors of the justice system improve their
responses.
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n12. See National Council of Juvenile & Family Court Judges, Family Violence:
Improving Court Practice 3 (1990) [hereinafter Improving Court
Practice].
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I. Why Prioritize Domestic Violence in System Reform Efforts?
Three years ago, I sat in the D.C. Superior Court courtroom designated for domestic
violence cases. As my client and I waited for her case to
be heard, we listened to another woman tell her story to the judge. n13 She
described how her husband had punched her repeatedly in the left
eye, and showed the judge a photograph of her face, her eye bruised and swollen.
Her husband then took the stand and denied everything; he
claimed she had walked into a door. At the conclusion of the hearing, the judge
turned to the woman and said:
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n13. This story, and others like it throughout this article, is based on my
personal experience in working with hundreds of clients litigating
domestic violence cases. The names of all persons have been changed to protect
their privacy and, in some instances, attorney-client privilege.
Minor details of some stories have also been altered to make the cases less
easy to identify and further protect victim privacy.
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Ma'am, I credit your testimony, and am convinced that your husband assaulted
you in violation of the law. As a result, I am authorized to award
you a civil protection order, which could order him to stay away from you and
stop hurting you. But I'm not going to do that today. Because
you have children together, you're going to have to find some way to cooperate
with each other to raise them. So I want you to go home and
try to work things out in private. And I suggest that you go see a movie I saw
recently, called "Mrs. Doubtfire," where Robin Williams and his
wife decide to separate, but still manage to find a creative way to work together
when it came to their children.
(In this slapstick comedy, Robin Williams' wife asks him to move out; he gets
extra time with the children by dressing up as a woman and
hoodwinking his wife into giving him a job as their nanny).
This story is not atypical of the contemporary response of many judges, prosecutors,
and police to victims of domestic violence. But doesn't the
judge in the "Mrs. Doubtfire" case have a point? After all, a punch
in the eye is a low-level, misdemeanor offense, especially when compared to
the kind of violence common on our city streets. So many aspects of the justice
system cry out for repair; complaints abound about family and
juvenile courts, failures to adopt community policing policies, and the need
to adopt a crime victims' "bill of rights." Why prioritize domestic
violence for special reform efforts?
One reason is that domestic violence is rarely a one-time event, and without
effective intervention, it typically increases in frequency and
severity over time. n14 A woman who comes to court today with a black eye is
likely to return a few months later with a permanent bald spot
caused by her husband pulling a handful of hair out of her head, or with a few
of her teeth knocked out with a hammer. n15 A batterer who
enters the criminal justice system later in the abusive dynamic is more likely
to commit a felony than a misdemeanor, or to reach the point
where he commits one of the murder-suicides that are relatively common in these
cases. n16
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n14. See, e.g., Angela Browne, When Battered Women Kill 68 (1987); Lenore E. Walker, The Battered Woman 43-44 (1979).
n15. I have represented numerous domestic violence survivors who have been subjected to these types of injuries.
n16. Murder-suicides are not uncommon in domestic violence cases. See Jacquelyn
C. Campbell, Methodological Issues in Risk Assessment
Research for Family Violence, paper presented at Program Evaluation and Family
Violence: An International Conference (July 27, 1998) (stating
that 30% of U.S. intimate partner homicides are homicide-suicides); Department
of Justice Canada, Domestic Homicides Involving the Use of
Firearms 29 (Mar. 1992) (stating that 47% of all domestic homicides involving
a firearm resulted in suicide or attempted suicide of the accused
and that the same is true for 71% of all firearm-related murders in which husbands
killed their wives); Dora Black et al., Father Kills Mother:
Post-Traumatic Stress Disorder in the Children, 57 Psychotherapy & Psychosomatics
152 (1992); Donna Wills, Domestic Violence: The Case for
Aggressive Prosecution, 7 UCLA Women's L.J. 173, 181 (1997).
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A pattern of escalating violence takes a profound toll on women, both physically
and psychologically. Women are more likely to be beaten, n17
raped, n18 or killed n19 by a current or former male partner than by anyone
else. Between twenty-two and thirty-five percent of women who
visit hospital emergency rooms are there due to injuries sustained as a result
of domestic violence. n20 More women seek medical attention for
harm inflicted by a spouse than for injuries caused by auto accidents, rapes,
and muggings combined. n21
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n17. See Angela Browne, Violence Against Women: Relevance for Medical Practitioners, 267 JAMA 3184, 3185 (1992).
n18. See Diana E. H. Russell, Rape in Marriage 64 (1982).
n19. See Angela Browne & Kirk R. Williams, Exploring the Effect of Resource
Availability and the Likelihood of Female-Perpetrated Homicides, 23
Law & Soc'y Rev. 75, 78 (1989).
n20. See Teri Randall, Domestic Violence Intervention Calls for More Than Treating Injuries, 264 JAMA 939, 939 (1990).
n21. Til Violence Do Us Part, supra note 8, at 26.
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Another reason to prioritize domestic violence is the harm inflicted on children
through adult battering relationships. This battering starts early:
national surveys report that seventeen percent of obstetrics patients are battered.
n22 Pregnant victims have an inflated risk of miscarriage
and are four times more likely to deliver low birthweight babies. n23 The damage
continues after birth. Nearly half of all homeless women and
children have been forced to flee violence in their homes. n24 And children
who witness violence between adults are at risk of physical harm
when they are caught in the crossfire, either accidentally or (particularly
with adolescent boys) while trying to intervene to protect their
mothers. n25 Approximately sixty-three percent of young men between the ages
of eleven and twenty who are imprisoned for homicide have
killed their mothers' batterers. n26 These boys also have higher rates of suicide,
violent assault, sexual assault, and alcohol and drug use. n27
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n22. See Judith McFarlane, Barbara Parker, Karen Soeken, & Linda Bullock,
Assessing for Abuse During Pregnancy: Severity and Frequency of
Injuries and Associated Entry Into Prenatal Care, 267 JAMA 3176, 3177 (1992)
(in study of 691 black, Hispanic, and white women in public
prenatal clinics in Houston and Baltimore, 17% reported physical and/or sexual
abuse during pregnancy).
n23. See Judith McFarlane, Battering During Pregnancy: Tip of an Iceberg Revealed, 15 Women & Health 69, 71, 73 (Fall 1989).
n24. See Women and Violence: Hearings Before the Senate Comm. on the Judiciary
on Legislation to Reduce the Growing Problem of Violence
Crime Against Women, 101st Cong., 2d Sess., pt. 2, at 142 (1991) (statement
of Susan Kelly-Dreiss, discussing several Pennsylvania studies);
Til Violence Do Us Part, supra note 8, at 26.
n25. See, e.g., Peter G. Jaffe et al., Children of Battered Women 26 (1990);
Maria Roy, Children in the Crossfire: Violence in the Home - How
Does It Affect Our Children? 92 (1988) (stating that 62% of sons over age 15
living in families where adult-on-adult abuse occurred were injured
in attempts to rescue mothers from beating by male partners). "The younger
the children, the more likely injuries would be serious, such as
broken shoulders, ribs, concussions." Id. at 92. These children also suffer
psychological injury. See Jaffe et al., supra, at 26-30.
n26. See Women and Violence: Hearings Before the Senate Comm. on the Judiciary
on Legislation to Reduce the Growing Problem of Violence
Crime Against Women, 101st Cong. 131 (1991) (statement of Susan Kelly-Dreiss).
n27. See id. (statement of Sarah M. Buel, Assistant District Attorney, Mass.,
and Supervisor, Harvard Law School Battered Women's Advocacy
Project).
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The impact does not stop with the batterer's children. Growing up, we learn
life-long patterns dictating how we will respond when our gut-level
buttons are pushed: with words or with violence. Children who are raised watching
one parent abuse the other tend to take the latter course;
boys who witness violence against their mothers are ten times more likely to
batter female partners when they reach adulthood. n28 Girls exhibit
a similar pattern of becoming victims of domestic violence. n29 This home-schooling
process also forges a link between domestic and stranger
violence. A recent national study, for example, showed that juvenile delinquents
are four times more likely to have come from violent homes.
n30
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n28. See id. at 89 (testimony of Charlotte Fedders); see also Naomi R. Cahn,
Civil Images of Battered Women: The Impact of Domestic Violence
on Child Custody Decisions, 44 Vand. L. Rev. 1041, 1055-56 (1991); Gerald T.
Hotaling & David B. Sugarman, An Analysis of Risk Markers in
Husband to Wife Violence: The Current State of Knowledge, 1 Violence & Victims
101, 106 (1986); Straus, supra note 9.
n29. See, e.g., Hotaling & Sugarman, supra note 28, at 106.
n30. See Bureau of Juvenile Justice, Violence by and Against America's Children,
Digest XVII(12), at 6 (on file with author); see also Donna M.
Welch, Mandatory Arrest of Domestic Abusers: Panacea or Perpetuation of the
Problem of Abuse? 43 DePaul L. Rev. 1133, 1136-37 & n.31
(1994) (noting that husbands who grow up in violent homes commit three times
as many serious domestic assaults as those who do not).
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Early and effective intervention in domestic abuse cases could substantially
reduce violence in the home, in the streets, and in future
generations. But how far has our society progressed toward this goal?
II. The Legislature's Response to Domestic Violence: An Overview
Despite the devastating effects of domestic violence, the state has done precious
little to alleviate the problem until recently. Indeed, the
European and American legal systems have a long history of complicity in - and
even approval of - intimate abuse, particularly when perpetrated
by men against their wives and children. In medieval Europe, wives were legally
considered their husbands' chattel and a disobedient woman
risked public chastisement. She might be sentenced to the ducking stool, whipped,
or forced to wear an iron muzzle with a padlock and a spike
pinning down her tongue. n31 Husbands were "excused for the injuries they
inflicted on their wives.... Provided he neither kills nor maims her, it
is legal for a man to beat his wife when she wrongs him." n32
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n31. See R. Emerson Dobash & Russell Dobash, Violence Against Wives: A Case Against the Patriarchy 59 (1979).
n32. Id. at 60 (quoting Not in God's Image: Women in History 356 (Julia O'Faolain
& Laura Martinez eds., 1974)).
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By the advent of the seventeenth and eighteenth centuries, lawmakers began
to make feeble efforts to reform these laws. For example, French
communities restricted a husband's legal right to physically discipline his
wife to "blows, thumps, kicks or punches on the back if they leave no
lasting traces." n33 This limitation was qualified, however, by the adage:
"The man who is not master of his wife is not worthy of being a man."
n34 The nineteenth century witnessed additional Lilliputian steps toward progress.
In Britain, one reformer in the House of Commons rose during
debate to insist that "the country should treat its married women no worse
than it treats its domestic animals." n35
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n33. Id. at 56 (quoting Nicole Castan, Divers Aspects de la Constrainte Maritale,
D'apres les Documents Judiciares du XXIII Siecle, Kath Ryall
trans., (1976) at 6) (emphasis added).
n34. Id. Most cultures have developed similar proverbs. In Russia: "A
wife isn't a jug ... she won't crack if you hit her ten times"; in Africa:
"Those whom we marry are those whom we fight"; and in England: "A
spaniel, a woman, and a walnut tree, the more they're beaten, the better
they be." Carol Bauer & Lawrence Ritt, "A Husband Is a Beating
Animal:" Frances Power Cobbe Confronts the Wife-Abuse Problem in Victorian
England, 6 Int'l. J. Women's Stud. 99, 102 (1983). A pre-revolutionary Chinese
proverbs goes, "A wife married is like a pony bought; I'll ride her
and whip her as I like." Lori Heise, International Dimensions of Violence
Against Women, 12 Response 3, 3.
n35. Dobash & Dobash, supra note 31, at 68. Henry Fitzroy requested that
Parliament provide women with the same protection "as they already
extended to poodle dogs and donkeys, for cruelty to which a person subjected
himself, under the Cruelty to Animals Act, to three months
imprisonment, with or without hard labor." Id. at 282 n.145 (quoting 124
Parl. Deb. (3d Sec.) 1414 (1853)). During the same period, John Stuart
Mill protested that even the "vilest malefactor" had "some wretched
woman tied to him, against whom he [could] commit any atrocity except
killing her, and, if tolerably cautious, [could] do that without much danger
of the legal penalty." John Stuart Mill, The Subjection of Women 35
(1869) (reprinted 1970).
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From the early colonial period onward, American courts followed British common
law by affirming the husband's right of domestic chastisement.
In the words of the Mississippi Supreme Court, this rule allowed a husband to
"use salutary restraints in every case of a wife's misbehavior,
without being subjected to vexatious prosecutions resulting in the mutual discredit
and shame of all parties concerned." n36
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n36. Bradley v. State, 1 Miss. 156, 157 (1824); see also State v. Black, 60
N.C. (Win.) 162,163 (1864) (permitting husband "to use towards his
wife such a degree of force as is necessary to control an unruly temper and
make her behave herself; and unless some permanent injury be
inflicted to gratify his own bad passions, the law will not invade the domestic
forum, or go behind the curtain."); cf. Robbins v. State, 20 Ala.
36, 39 (1852) (holding that wife's provocation can mitigate husband's fine for
assault:
if the husband was at the time ... provoked to this unmanly act by the bad behaviour
and misconduct of his wife, he should not be visited with
the same punishment as if he had without provocation wantonly and brutally injured
one whom it was his duty to nourish and protect.).
The first law against wife-beating during this period was enacted in Tennessee
in 1850, although it is not known whether this statute was
enforced. See Elizabeth Pleck, Criminal Approaches to Family Violence, 1640-1980,
11 Fam. Violence 19, 29, 32 (Michael Onry & Norval Morris
eds., 1989). In some instances, sporadic periods of social awareness concerning
domestic violence led to legislative prohibitions in the early
1600s, but no such laws were passed from 1672 to 1850. See id. at 29.
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It was not until the late nineteenth century that states finally began to
move away from actually condoning a husband's use of physical force
to discipline his wife. n37 But many still clung to the position that in the
absence of "serious" violence, the government should not interfere
in
the private, family realm. As late as 1874, the North Carolina Supreme Court
stated: "If no permanent injury has been inflicted, nor malice,
cruelty nor dangerous violence shown by the husband, it is better to draw the
curtain, shut out the public gaze, and leave the parties to forget
and forgive." n38 This view predominated in most states well into the twentieth
century.
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n37. See, e.g., Fulgham v. State, 46 Ala. 143, 146-47 (1871) (stating that
privilege to chastise one's wife, "ancient though it be, to beat her
with a stick, to pull her hair, choke her, spit in her face or kick her about
the floor, or to inflict upon her like indignities, is not now
acknowledged by our law."); Commonwealth v. McAfee, 108 Mass. 458, 461
(1871) (declaring that "Beating or striking a wife violently ... is not
one of the rights conferred on a husband by the marriage.").
n38. State v. Oliver, 70 N.C. 60, 61-62 (1874); see also State v. Buckley,
2 Del. (2 Harr.) 552, 552 (1838) ("We know of no law that will
authorize a husband to strike his pregnant wife a blow with his fist, such as
has been inflicted on this woman.... Any undue or excessive battery
by a husband of his wife either in degree, or with improper means, [is] indictable.")
(emphasis added); State v. Hussey, 44 N.C. (Busb.) 123
(1852) (wife's testimony against her husband incompetent in all cases of assault
and battery, expect where permanent injury or great bodily
harm is either threatened or inflicted); Richards v. Richards, 1 Grant 389,
392-93 (1856) (denying divorce petition on ground that "it is a sickly
sensibility which holds that a man may not lay hands on his wife, even rudely,
if necessary, to prevent the commission of some unlawful or
criminal purpose," a man may be "betrayed" "into the commission
of an act, or a harsh expression, for which, in a moment after, he might be
repentant and sorrowful.").
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- -
But by the late 1960s and early 1970s, the domestic violence movement came
into full swing and prompted substantial improvements in
statutory law. Over the past generation, the United States has moved from an
era when no term for intimate abuse existed in the national
lexicon to one of substantial public awareness of the problem, a growing perception
that it is unacceptable, and increasing political will to
intervene. Every state has enacted a civil protection order statute, and the
vast majority of these authorize the essential relief necessary for
battered women to leave an abusive relationship. n39 For example, every state
provides for emergency ex parte relief, n40 so that a victim has
court-ordered protection during the potentially volatile period between the
time of filing a lawsuit and trial. This is the period when the abusive
partner typically is served with court papers spelling out the victim's intent
to leave him - a moment that can set off a particularly severe
"separation assault." n41
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- -
n39. For an in-depth analysis of state civil protection order statutes, see
Catherine F. Klein & Leslye E. Orloff, Providing Legal Protection for
Battered Women: An Analysis of State Statutes and Case Law, 21 Hofstra L. Rev.
801 (1993); see also Developments in the Law: Legal
Responses to Domestic Violence, 106 Harv. L. Rev. 1498, 1515-18, 1535-43 (1993).
n40. See Klein & Orloff, supra note 39, at 1031-43 (indicating that all
jurisdictions authorize some form of emergency ex parte relief upon filing a
complaint for civil protection).
n41. See Martha R. Mahoney, Legal Images of Battered Women: Redefining the
Issue of Separation, 90 Mich. L. Rev. 1, 65-71 (1991); see also
Joan Zorza, Recognizing and Protecting the Privacy and Confidentiality Needs
of Battered Women, 29 Fam. L.Q. 273, 274 & 274 n.12-13 (1995)
(stating that domestic violence escalates when victim leaves or abuser believes
she is going to leave).
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Modern laws governing civil protection orders also authorize fairly comprehensive
post-trial relief. In addition to the basic provisions - to not
assault and to stay away - these orders may award temporary child custody, safe
visitation arrangements for the non-custodial parent, and
child support. n42 Rapid resolution of these latter issues is critical. One
of the primary reasons that victims return to their abusive partners is
the pressure created by the loss of economic support; n43 for a woman with children,
a child support award may be the key to freedom.
Similarly, because the potential for renewed violence is greatest during visitation,
carefully structured pick up and drop off provisions, designed
to eliminate victim-perpetrator contact, also can have a significant prophylactic
effect. n44
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n42. The vast majority of jurisdictions authorize the court to award temporary
custody. See Klein & Orloff, supra note 39, at 954 n.968 (citing
statutes from 42 states, the District of Columbia, and Puerto Rico); see also
N.Y. Family Court Act 842(i) (McKinney 1998); Va. Code Ann.
16.1-279.1(A)(7) (1998). The same is true for visitation. See Klein & Orloff,
supra note 39, at 982 n.1141 (citing statutes from 37 states and
the District of Columbia); see also Alaska Stat. 18.66.100(C)(9) (Michie 1998);
Va. Code Ann. 16.1-279.1(A)(7) (1998). Thirty-eight states and
the District of Columbia expressly authorize the award of child support in a
civil protection order case. See Klein & Orloff, supra note 39, at 998
n.1254 (citing statutes from 36 states and the District of Columbia); see also
N.Y. Fam. Court Act 842 (McKinney 1998); Vt. Stat. Ann. tit. 15
1103(c)(6) (1997).
n43. See Anne L. Ganley, Domestic Violence: The What, Why and Who, as Relevant
to Civil Court Cases, in Domestic Violence in Civil Court
Cases: A National Model for Judicial Education 19, 44 (Jacqueline Agtuca et
al. eds., 1992); Cris M. Sullivan, et al., After the Crisis: A Needs
Assessment of Women Leaving a Domestic Violence Shelter, 7 Violence & Victims
267, 267 (1992); Martha F. Davis & Susan J. Kraham,
Protecting Women's Welfare in the Face of Violence, 22 Fordham Urb. L.J. 1141,
1155 (1995).
n44. See Peter Finn & Sarah Colson, U.S. Dep't of Justice, Civil Protection
Orders: Legislation, Current Court Practice and Enforcement 43-44
(1990). State gender bias task force reports have revealed that poorly structured
visitation provisions are the source of a substantial portion of
contempt motions brought to enforce civil protection orders. See, e.g., District
of Columbia Courts, Final Report of the Task Force on Racial and
Ethnic Bias and Task Force on Gender Bias in the Courts, App. H at 21 (1992)
[hereinafter D.C. Gender Bias Task Force Report] (indicating that
such provisions accounted for 31% of contempt motions in civil protection order
cases involving custody).
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Finally, thirty-four states have adopted criminal contempt laws to help enforce
protection orders, n45 and forty-five jurisdictions have made
violating a protection order a statutory crime. n46 Effective enforcement is
essential to ensure meaningful compliance; otherwise, civil
protection orders become a piece of paper that a batterer can (and often does)
ignore with impunity. As one study of the civil protection order
process concluded, "enforcement is the Achilles' heel of the ... process,
because an order without enforcement at best offers scant protection
and at worst increases the victim's danger by creating a false sense of security."
n47
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n45. The following jurisdictions enforce civil protection orders through criminal
contempt sanctions: Ala. Code 30-5A-6 (1998); Alaska Stat.
9.50.010(5) (Michie 1997); Ariz. Rev. Stat. Ann. 13-3602(J) (West 1998); Colo.
Rev. Stat. 18-6-803.5(7) (1998); Del. Code Ann. tit. 11, 1271
(1997); D.C. Code Ann. 16-1005 (1997); Fla. Stat. Ann. 741.30(8)(a) (West 1998);
Ga. Code Ann. 19-13-6 (1997); Haw. Rev. Stat.
710-1077(1)(g) (1997); 750 Ill. Comp. Stat. 60/223-2(b) (West 1998); Iowa Code
236.8 (1998); Kan. Stat. Ann. 60-3110 (1996); Ky. Rev.
Stat. Ann. 403.760(1) (Banks-Baldwin 1998); La. Rev. Stat. Ann. 46:2137 (West
1998); Md. Code Ann., Family Law 4-508 (1997); Mich. Comp.
Laws 600.2950(23) (1998); Minn. Stat. 518B.01(14)(f)-(g) (1997); Miss. Code
Ann. 93-21-21 (1998); N.H. Rev. Stat. Ann. 173-B:8(II) (1997);
N.J. Stat. Ann. 2C:29-9 (West 1998); N.M. Stat. Ann. 40-13-5(B) (Michie 1996);
N.Y. Penal Law 215.51(b) (McKinney 1998); N.C. Gen. Stat.
50B-4(b) (1997); N.D. Cent. Code 14-07.1-06 (1997); Ohio Rev. Code Ann. 2705.02(A)
(Anderson 1998); Or. Rev. Stat. 107.720(4) (1997); Pa.
Stat. Ann. tit. 23, 6114 (West 1998); R.I. Gen. Laws 15-15-3(c)-(d) (1997);
S.C. Code Ann. 20-4-60(b) (Law Co-op. 1997); Tenn. Code Ann.
36-3-610 (1997); Vt. Stat. Ann. tit. 15, 1108(e) (1997); Wash. Rev. Code 26.50.110(5)
(1997) (penalty for third conviction); Connecticut v.
Murray, 623 A.2d 60 (1993).
n46. See Klein & Orloff, supra note 39, at 1096 n.1835 (citing statutes
in 40 states and Puerto Rico); see also D.C. Code Ann. 16-1005(g)
(1997); Iowa Code 236.8 (1998); S.D. Codified Laws 25-10-13 (Michie 1997).
n47. Finn & Colson, supra note 44, at 49.
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The federal government has acted as well. In 1994, Congress enacted the Violence
Against Women Act (VAWA), n48 and "daughter of VAWA"
has just been introduced in Congress. n49 Among other things, these laws condition
state receipt of sizable federal funding on the creation of
systems that: (1) ensure that protection orders are given full faith and credit
by all sister states; n50 (2) provide government assistance with
service of process in protection order cases; n51 and (3) criminalize violations
of protection orders. n52
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n48. Violence Against Women Act, Pub. L. No. 103-322, 108 Stat. 1902 (1994) (codified as amended in U.S.C. sections 8, 16, 18, 28, 42).
n49. See H.R. 3514, 105th Cong. (1998); S. 2110, 105th Cong. (1998). See Sean
Scully, Scandals May Ease Renewal of Women's Act, Wash.
Times, Mar. 20, 1998, at A9; Carl Weiser, Biden Introduces Bill to Extend Protection
for Battered Women, Gannett News Service, May 21, 1998,
available in 1998 WL 5627720.
n50. See Violence Against Women Act, 18 U.S.C. 2265 (1996).
n51. See Violence Against Women Act, 42 U.S.C. 3796hh(c)(4)(1998). Domestic
violence victims cite failure to accomplish service of process as
one of the primary reasons for their failure to follow through on a civil protection
order case. See Urban Institute, Court Processing and the
Effects of Restraining Orders for Domestic Violence Victims 30-32 (1993).
n52. See Violence Against Women Act, 42 U.S.C. 3796hh(c)(1). In order to be
eligible for certain VAWA grants, state and local governments
must certify that their laws or official policies "encourage or mandate
arrest of domestic violence offenders who violate the terms of a valid and
outstanding protection order." Id.
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Although the specifics of protection order legislation vary from state to
state and gaps in coverage for battered women certainly remain,
legislation is no longer an obstacle, but a source of hope. Enormous legal strides
have been made in a relatively short period of time.
In contrast to this remarkable legislative progress, those responsible for
applying and enforcing the law - the executive and judicial branches of
government - have lagged far behind. Only during the last five to ten years
have police begun to put effort into achieving timely responses and
reasonable arrest rates; in most jurisdictions this occurred only after a legislative
mandate. It is even more recently that a small (but growing)
number of District Attorneys' offices around the country have begun to experiment
with specially tailored strategies to prosecute domestic
violence. And the judiciary has shown even less progress; only a handful of
jurisdictions have any substantial reform efforts underway. A law is
only as good as the system designed to deliver on its promises, and the failure
of the courts and related institutions to keep up with legislative
progress has had a serious detrimental impact on efforts to combat domestic
violence.
What would an improved system for dealing with domestic violence cases look
like? Reform must occur in each of three components of the
justice system. First, police and prosecutors must continue to improve their
historically inadequate practices and to develop specially tailored
responses to domestic violence crimes - while paying special attention to questions
of individual victim needs and desires. Second, the court
system itself must adopt new practices that promote coordination and information-sharing
in multiple cases involving the same family. Finally,
the judiciary must purge its deep-rooted hostility toward domestic violence
victims and adopt an approach that promotes procedural justice for
all parties.
III. Improving the Criminal Justice System's Long Record of Failure in Response
to Domestic Abuse
Since the early 1970s, battered women's advocates have called upon police and
prosecutors to treat domestic violence "like any other crime."
This plea was voiced in response to a long-standing failure by these officials
to recognize a criminal dimension to family abuse. A growing
number of jurisdictions have heeded this call, and arrest and prosecution rates
are beginning to increase. But these improvements themselves
have highlighted additional difficulties that must be remedied.
A. Historical Overview of the Criminal Justice Response
Until recently, police officers frequently ignored domestic violence calls or
delayed their response by several hours. n53 When they did respond,
they were trained to mediate rather than to arrest. In the words of one police
training bulletin:
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n53. See Straus, supra note 9, at 232; Martin, supra note 9, at 92.
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The police role in a [domestic] dispute situation [is] more often that of a
mediator and peacemaker than enforcer of the law.... Normally,
officers should adhere to the policy that arrests shall be avoided.... but when
one of the parties demands arrest, you should attempt to explain
the ramifications of such action (e.g., loss of wages, bail procedures, court
appearances) and encourage the parties to reason with each other.
n54
The experience of the District of Columbia is typical. A study conducted in
1990 showed that police were arresting accused batterers in only
five percent of all domestic violence cases. n55 They failed to arrest in more
than eighty-five percent of cases in which the victim had
sustained serious injuries that were visible when the police arrived on the
scene. n56 Police were more likely to arrest the perpetrator in
situations where he insulted an officer or damaged a vehicle. n57
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n54. See Oakland, California, Police Department, Training Bulletin on Techniques
of Dispute Intervention (1975) quoted in Martin, supra note 9,
at 93-94.
n55. See Sandra Jean Sands et al., Police Response to Domestic Violence 9
n. 15 (June 1990) (presented at Institute for Women's Policy
Research Second Annual Women's Policy Conference) (unpublished manuscript, on
file with author).
n56. See id. at 5.
n57. See id. at 5-7.
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Activists have used studies like this one to convince state legislatures to
enact mandatory arrest laws. n58 These statutes terminate police
discretion in domestic violence cases; if probable cause exists, the officer
must arrest. Looking again at Washington, D.C., soon after the local
mandatory arrest law went into effect, police were arresting perpetrators in
forty-one percent of domestic violence calls. n59 This jump, from
five to forty-one percent, reflects a sea change for victims of family abuse.
Those who seek access to justice are far more likely to succeed
with the advent of mandatory arrest. n60
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n58. For example, the District of Columbia enacted its mandatory arrest law in 1991. See D.C. Code Ann. 16-1031 (1991).
n59. See National Center for State Courts, Civil Protection Orders: The Benefits
and Limitations for Victims of Domestic Violence 80 (Susan L.
Keilitz et al. eds., 1997) [hereinafter NCSC Civil Protection Order Study] (study
of women who received civil protection orders in Wilmington,
Delaware, Denver, Colorado, and the District of Columbia). This study focused
exclusively on police response vis-a-vis male perpetrators.
However, this study does not reflect the problematic increase in dual arrests
- police arrest of both victim and batterer - that activists have
noted across the country. See, e.g., Welch, supra note 30, at 1159. A recent
General Order issued by the D.C. Metropolitan Police Department
attempts to eradicate this practice by directing officers to distinguish between
the primary aggressor, who must be arrested, and a person who
may have inflicted injury on another, but who did so in self-defense. See D.C.
Metro. Police Dep't., General Order 304.11, Intrafamily Offenses
10-12 (Jan. 12, 1998). No data yet exist, however, from which to determine whether
the General Order has resulted in a decrease in dual
arrests.
n60. The issue of victims who do not want their abusers arrested or prosecuted
is discussed infra text accompanying notes 73-83.
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But mandatory arrest alone is not sufficient to ensure that the criminal aspects
of domestic violence cases are taken seriously. Even when
presented with more domestic violence arrests, prosecutors rarely pressed charges
and, when they did, they rarely followed through with the
case. In Washington, D.C., for example, the 1995 charging rate was approximately
fifteen percent of arrest cases, and very few of these ever
proceeded to plea or trial. n61 Why such low numbers? The prosecutor, like district
attorneys across the country, had adopted a special
intimate abuse policy: Charges would be dropped at the victim's request, at
any time, no questions asked. The rationale was the belief that
convictions could not be obtained without victim cooperation and testimony.
Although some prosecutors recognized that batterers might be
pressuring victims into making the request to drop charges, they claimed that
they could not distinguish between a battered woman who was
communicating her true feelings and one who had a literal or figurative gun
to her head. n62 So they adopted a uniform approach and dropped
charges in every case.
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n61. See, e.g., Sam Skolnik, Confronting Domestic Violence: D.C.'s Once Shoddy
Record Much Improved, Legal Times, Aug. 18, 1997, at 14
(citing 10-30% charging rate).
n62. In the District of Columbia, for example, one prosecutor spent every
day for six months interviewing victims of intimate abuse who sought
to drop charges. Interview with Robert Spagnoletti, Chief, U.S. Attorney's Office
Domestic Violence Unit, in Washington, D.C. (Sept. 3, 1997).
He found that he was unable to distinguish between those who were responding
to a direct threat and those who were not. Id. When he
refused to honor victims' requests to drop a case, many of them called him later
to explain that they had been threatened into making the
request against their will and to thank him for pursuing the prosecution. Id.
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This "automatic drop" policy ceded to perpetrators an enormous degree
of control over the criminal justice process. All a batterer had to do was
coerce his victim - through violence or threats of violence - into asking the
prosecutor to drop the charges; once she did so, the risk of
incarceration instantly vanished.
During the 1980s and 90s, victim advocates lobbied aggressively to change
these policies, and they have finally begun make inroads in a
growing number of jurisdictions. For example, still citing the difficulty in
distinguishing between those who "really" want to drop charges and
those who do not, many prosecutors have adopted "no-drop" policies
- once charges are brought, a case proceeds regardless of the victim's
wishes, as long as sufficient evidence exists to prove criminal conduct. n63
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- -
n63. In a recent survey, 66% of prosecutor's offices in major urban centers
reported that they had adopted no-drop policies. Donald J.
Rebovich, Prosecution Response to Domestic Violence: Results of a Survey of
Large Jurisdictions, in Do Arrests and Restraining Orders Work?
176, 182-183 (Eve S. Buzawa & Carl G. Buzawa eds., 1996).
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Early data indicate that these no-drop policies yield substantial positive
results, including the reduction of homicides. In San Diego, for example,
officials found that under the old policy, when abusers learned that a case
would be dismissed if the victim refused to cooperate, levels of
violence increased. n64 In 1985, the city implemented a no-drop policy. Domestic
homicides fell from thirty in 1985, to twenty in 1990, to seven
in 1994. n65 No-drop policies also appear to lower recidivism and strengthen
the message that intimate abuse will not be tolerated. n66
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n64. See Casey G. Gwinn & Anne O'Dell, Stopping the Violence: The Role
of the Police Officer and the Prosecutor, 20 W. St. U. L. Rev. 297, 310
(1993).
n65. See Mark Hansen, New Strategy in Battering Cases, A.B.A. J. 14 (Aug. 1995).
n66. See Hanna, supra note 10, at 1864-65.
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After years of community pressure in the District of Columbia, the U.S. Attorney's
Office finally adopted an aggressive approach to prosecution,
including a no-drop policy. n67 Prosecutors assigned to the newly-created Domestic
Violence Unit view intimate violence as a crime against the
state and seek to vindicate the government's interests regardless of the individual
victim's wishes. Perpetrators no longer are able to manipulate
the system by coercing the victim into dropping the charges; control has been
shifted from the perpetrator to the government.
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n67. The Office also adopted a vertical prosecution policy, where a single
prosecutor is assigned to a case from beginning to end. Most other
misdemeanors are prosecuted "horizontally," with a different prosecutor
handling each stage of the litigation. Vertical prosecution encourages
the development of a continuing relationship between attorney and complaining
witness that can contribute to better victim follow-through.
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As in San Diego, Washington, D.C.'s no drop-policy has effected a radical
shift in domestic violence prosecutions. In 1989, the office prosecuted
fewer than forty misdemeanor cases out of 19,000 family abuse calls to 911.
n68 From 1996-97, during the first year of the new regime, the
Domestic Violence Unit filed approximately 6,000 misdemeanor cases. n69 The
statistics for the following year are closer to 8,000. n70 An even
more telling statistic is that the Unit now presses charges in approximately
sixty-seven percent of arrest cases - precisely the same rate as in
stranger violence arrests. n71 Similarly, the conviction rate in domestic violence
cases now closely approximates that in other misdemeanor
non-jury trials in the District of Columbia - sixty-nine percent. n72
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n68. In 1989, the D.C. Metropolitan Police Department completed written reports
in 42 of 19,000 domestic violence calls. See Sands et al.,
supra note 55, at 300. No prosecutions occur in the absence of such a report.
Interview with Robert Spagnoletti, Chief, U.S. Attorney's Office
Domestic Violence Unit in Washington, D.C. (Apr. 8, 1999).
n69. See Interview with Robert Spagnoletti, supra note 62. This statistic
is derived from the fact that the Domestic Violence Unit prosecuted
approximately 6,400 cases over the 13-month period from Apr. 1, 1996 to Apr.
30, 1997; the number given is the 12-month average.
n70. See id.
n71. See, e.g., Skolnik, supra note 61, at 14.
n72. See Letter from Duane B. Delaney, Clerk of the Court, to Andrew P. McGuire,
Esq. 2 (June 23, 1997) (on file with author); Interview with
Robert Spagnoletti, supra note 62. Prior to institution of the new domestic
violence court, prosecutors estimate that the conviction rate in
domestic violence trials was 20%, less than a third of the current rate. See
Skolnik, supra note 61, at 14.
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Mandatory arrest laws and no-drop prosecution policies have moved domestic
violence criminal prosecutions to a position of rough parity with
crimes perpetrated by non-intimates, and have greatly expanded the tools available
to battered women seeking to escape abuse. The concept
of treating family abuse "like any other crime" is finally within
reach. But is this kind of equality really what is best for battered women?
B. Concerns Raised by Recent Criminal Justice Reforms and Modest Proposals
for Improvement
Battered women are far better off today, with police and prosecutors who pay
attention to crimes between intimates, than they were ten years
ago when such crimes were routinely ignored. But as police and prosecutors escalate
their response to domestic violence cases, survivors
increasingly confront a criminal justice system that can perpetuate the kinds
of power and control dynamics that exist in the battering
relationship itself. In many cases, prosecutors take complete control over the
case, functioning as the sole decision-maker and ignoring the
victim's voice. If a victim changes her mind mid-way through the litigation
and seeks to drop charges so that the father of her children can
continue to work and provide financial support, a prosecutor may refuse to do
so, on the ground that this would not serve the interests of the
state in punishing violations of the social contract. n73 Such re-victimization
can thwart the survivor's efforts to regain control over her life and
move past the abusive experience.
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n73. A prosecutor dealing with a reluctant victim in a domestic violence case
faces a difficult dilemma. Does a dismissal of an individual case
based on the victim's wishes occur at the expense of the public good of punishing
criminal conduct and deterring future violence? Does a failure
to honor a victim's wishes result in a re-victimization by subjecting her to
further coercion at the hands of the state? For an excellent
discussion of these issues within a feminist theory framework, see Hanna, supra
note 10, at 1888-98.
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Thus, where the bulk of control was ceded to the perpetrator under the old
automatic drop system, it is now ceded to the prosecutor. Although
battered women have a far greater influence over the criminal justice process
today than ever before, the system's responsiveness to their
individual needs remains limited.
Increased intervention by the criminal justice system has been particularly
problematic for many subgroups of victims, in particular immigrant
populations n74 and racial minorities. n75 For example, recent reforms in U.S.
immigration laws create strong disincentives for immigrant women
to press criminal charges against their batterers. The new laws dictate that
an immigrant convicted of a domestic violence offense, stalking, or
a protection order violation becomes deportable, even if he has previously obtained
lawful permanent resident status. n76 Many women are
reluctant to expose their partners to the risk of deportation. In addition,
they may be ostracized from their communities for doing so, particularly
if the perpetrator might be subjected to political persecution if forced to
return to his home country. Deportation of a batterer also may
adversely affect the victim's own petition for legal residency. n77
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n74. See generally Tien-Li Loke, Trapped in Domestic Violence: The Impact
of U.S. Immigration Laws on Battered Immigrant Women, 6 B.U. Pub.
Int. L.J. 589 (1997).
n75. See, e.g., Institute on Violence, Inc., Violence in the Lives of African
American Women: A Focus Group Study (Beth E. Richie ed., 1996) at
18-19 [hereinafter Violence in the Lives of African American Women].
n76. See Illegal Immigration Reform and Immigrant Responsibility Act, Pub. L. No. 104-208 350 (1996) (amending 8 U.S.C. 1251(a)(2)).
n77. See Tien-Li Loke, supra note 74, at 616. Although the Violence Against
Women Act has reduced the scope of this problem, it has not been
entirely eliminated. See id.
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Similarly, African-American women often choose to remain silent about abuse.
Kimberle Crenshaw, whose writing explores the "intersectionality"
of experiences of racism and sexism on battered women of color, argues:
Women of color are often reluctant to call the police, a hesitancy likely due
to a general unwillingness among people of color to subject their
private lives to the scrutiny and control of a police force that is frequently
hostile. There is also a more generalized community ethic against
public intervention, the product of a desire to create a private world free
from the diverse assaults on the public lives of racially subordinated
people. The home is not simply a man's castle in the patriarchal sense, but
may also function as a safe haven from the indignities of life in a
racist society. n78
In an extensive focus-group study in New York, African-American participants
expressed the view that reporting batterers to the police was a
breach of loyalty. n79 Reporting could further contribute to the social stereotyping
of black men as particularly violent. n80 In one woman's
words: "The ideas behind ... how Black boys are feared by White people,
and how police beat Black men ... it's a bad time to be Black and it's
an even worse time to talk about the problems we face in our community."
n81
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n78. Kimberle Crenshaw, Mapping the Margins: Intersectionality, Identity Politics,
and Violence Against Women of Color, 43 Stan. L. Rev. 1241,
1257 (1991).
n79. See Violence in the Lives of African American Women, supra note 75 at
18-19. See also Beth Richie, Battered Black Women: A Challenge
for the Black Community, The Black Scholar, Mar.-Apr. 1985, at 40, 43-44.
n80. See Violence in the Lives of African American Women, supra note 75, at 18-19.
n81. Id. at 19.
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Another set of concerns arises when the problem is viewed from a traditional
feminist perspective, focusing on the particular experience of
individual women. A no-drop policy may, in some cases, trigger a physical attack.
Although dropping charges in response to a batterer's threat
allows him to retain control, forcible prosecution can result in a deadly retaliation
assault.
One approach which may partially alleviate this risk is to give survivors
the option of not participating in the prosecution, in the hope that the
perpetrator will be less likely to blame her for what occurs. To do this, the
prosecuting attorney must rely on evidence other than victim
testimony, such as recorded 911 calls containing excited utterances, photographs
and hospital records that document injuries, and testimony
from police officers who responded to the crime scene. This strategy can be
quite successful. In Washington, D.C., for example, the U.S.
Attorney's Office introduces such evidence in every domestic violence case in
which it is available, and relies on it exclusively half of the time,
in those cases where the victim declines to testify for the state. n82 The conviction
rate in both types of cases is identical. n83
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n82. The prosecutor's office does not always respect the victim's desire to
refrain from testifying; in a small number of cases, the victim is
subpoenaed and forced to testify against her will. For an interesting discussion
of this practice and its implications for feminist theory, see
Hanna, supra note 10, at 1865-66, 1888-94.
n83. Interview with Robert Spagnoletti, supra note 62. One might expect a
higher success rate in cases where a victim actually tells the judge
her story. But there is a persistent and pervasive societal view, documented
by Carol Gilligan and others, that women's stories generally lack
credibility. The result is a deep undermining of the persuasive impact of a
victim's testimony. See Carol Gilligan, Getting Civilized, 63 Fordham L.
Rev. 17 (1994); Kim L. Scheppele, Just The Facts, Ma'am: Sexualized Violence,
Evidentiary Habits, and the Revision of Truth, 37 N.Y.L. Sch. L.
Rev. 123, 126-27 (1992).
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Of course, in some cases, this approach only deflects a batterer's anger;
it is a far from perfect strategy for protection from retaliatory abuse.
It also exacerbates another feminist concern with the no-drop approach: the
overriding of the individual victim's autonomy. After all, despite the
long-time activist demands that domestic violence crimes be treated the same
as those committed by strangers, these cases can be different
from the victim's perspective. Although a person assaulted during a holdup on
the street may have an interest in the precise punishment meted
out to the perpetrator, it cannot compare to that of many victims of intimate
abuse, whose partners may be sent to jail, families broken up, and
sole sources of child support lost. Of course, not every domestic violence victim
is financially dependent on the perpetrator or interested in
keeping the family together; and some victims of non-intimate assault have a
connection to the accused. These cases exist on a spectrum;
perhaps the degree of input into the decision of whether to prosecute and how
to punish accorded to a victim should be different - and greater
- in those cases where she has a connection - financial, familial, or emotional,
to the perpetrator.
So the question remains: How can prosecutors find a satisfactory way to enhance
deterrence of intimate abuse and, simultaneously, adequately
protect the safety and autonomy of individual victims? A growing body of research
indicates that civil society has an important role to play
here. n84
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n84. See, e.g., National Research Council, Understanding Violence Against
Women (N.A. Crowell & A.W. Burgess eds., 1996); Denise J. Gamache
et al., Coordinated Police, Judicial and Social Service Response to Woman Battering:
A Multi-Baseline Evaluation Across Three Communities, in
Coping With Family Violence: Research and Policy Perspectives 193-209 (G.T.
Hotaling, et al. eds., 1988), Cris M. Sullivan, Societal Collusion and
Culpability in Intimate Male Violence: The Impact of Community Response Toward
Women With Abusive Partners, in Violence Between Intimate
Partners: Patterns, Causes, and Effects (Albert P. Cardarelli ed., 1997) 154-64.
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A recent study in East Lansing, Michigan, n85 for example, compared two groups
of battered women leaving a domestic violence shelter. One
was a control group; in the other, each woman was assigned a college student
volunteer who served as her advocate for six hours a week,
over ten weeks. n86 The advocates had no prior experience working in the domestic
violence field, but received ten weeks of training before
embarking on the project. n87 Each student worked with a woman to help her assess
her personal needs and goals, and then assisted her in
obtaining limited or difficult-to-access community resources. n88 These resources
included housing, employment, legal assistance,
transportation, child care, health care, counseling for the children, and social
support. n89
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n85. See Cris M. Sullivan et al., Promising Findings of a Community-Based
Advocacy Project for Women with Abusive Partners: Two-Year
Followup, J. Consulting and Clinical Psychology (forthcoming 1999) (on file
with author).
n86. See id. at 7-8.
n87. See id. at 27.
n88. See id.
n89. See id. at 10.
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Both groups of women were interviewed every six months for two years. n90
Women in the advocacy group reported less physical violence - in
fact, over twice as many women in the advocacy group experienced no violence
whatsoever during the two-year period. n91 They also
experienced less depression and a higher quality of life. And those in the advocacy
group who wished to end their abusive relationships were
more effective in doing so. n92 Of particular importance is the fact that women
with advocates perceived themselves as significantly more
effective in obtaining community resources and assistance, as well as interpersonal
social support. n93
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n90. See id. at 7.
n91. See id. at 26-27.
n92. See id. at 19.
n93. See id. at 21. All of these differences were found to be statistically
significant. See id.
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Similar results came from a study of the role of social support from family,
friends, neighbors, and coworkers in determining victim follow through
in domestic violence criminal prosecutions. n94 Where "follow through"
was defined as cooperating in the prosecution of a batterer (after the
initial decision to press charges) by providing necessary information to prosecutors
and expressing a willingness to testify, n95 survivors able to
access more interpersonal support were approximately twice as likely to voluntarily
cooperate with the prosecution. n96
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n94. See generally, Lisa A. Goodman et al., Obstacles Women Face in Prosecuting
Their Batterers: The Role of Social Support, Violence &
Victims (forthcoming 1998) (on file with author).
n95. See id. at 1.
n96. See id. at 20.
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These results are quite exciting. They indicate that in many cases, an increase
in victim support from family, friends, and trained personnel can
be enough to empower victims to exit the cycle of violence. Advocacy services
apparently reduce some victims' dependency on the criminal
justice system by helping them find the strength to escape on their own. And
for those who need prosecutorial intervention, the presence of an
advocate or supporter enables them to better assert themselves in gaining the
help they need. By amplifying victims' voices, advocates can
help the government better respond to individual concerns. Advocates also help
the government to better discern those cases in which the
survivor seeks to drop charges because of a considered decision that the course
of action is best for herself, her family, and the larger
community to which she belongs. Certainly, domestic violence is a crime against
the state and generally should be treated as such; but victim
advocates could be a key to transforming one-size-fits-all prosecution policies
into responses that are also tailored to the concerns of individual
women.
Another way that law advocates can enhance victim participation in and impact
on the process is through the development of victim impact
statements. These statements, which can be written or oral, are submitted to
the court at sentencing. They tell the story of the effect of the
perpetrator's actions on the victim's life and detail her wishes regarding appropriate
punishment. When developed with care, these compelling
stories can have substantial impact on the ultimate punishment imposed on the
batterer. n97
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n97. Interview with Charlotte Clarke, Coordinator, District of Columbia United
States Attorney's Office Domestic Violence Advocacy Program,
Victim Witness Assistance Unit, Washington, D.C. (Sept. 21, 1998).
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Currently, the majority of domestic violence service providers nationwide
report that victim demand for advocates far exceeds their availability.
n98 And only a few jurisdictions permit victim advocate offices inside the courthouse,
so that women must seek them elsewhere - a hurdle that
many trauma victims are unable to surmount. Recent prosecutorial responsiveness
to domestic violence cases must be accompanied by an
equivalent increase in the provision of easily accessible victim advocacy services.
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n98. See Kit Kinports & Karla Fischer, Orders of Protection in Domestic
Violence Cases: An Empirical Assessment of the Impact of the Reform
Statutes, 2 Tex. J. Women & L. 163, 173 (1993).
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IV.Integrated Domestic Violence Courts: Remedying Failures in Information-Sharing
and Coordination
The piecemeal nature of the traditional court system presents further obstacles
for battered women seeking justice. Domestic violence incidents
typically trigger multiple civil and criminal cases, each with distinct and
complicated intake processes that occur in different parts of a
courthouse, or even in different court buildings located miles apart. This fragmented
process hopelessly confuses most victims, and few manage
to file for all the forms of complementary relief they need. Those who succeed
are then faced with a different judge on each case, each of
whom proceeds in an informational vacuum, with no awareness of related cases.
A typical family can find itself coping with multiple, conflicting
orders that simultaneously govern its existence.
The convoluted story of Karen and Robert Graves' interactions with the Jefferson
County, Kentucky justice system over the course of a year
graphically depicts ways in which the traditional court system's failures in
information sharing and coordination contribute to the tragedy of
domestic abuse. From February 1995 to March 1996, Karen and Richard attended
sixteen hearings in the local criminal and family courts. n99
The criminal cases were heard by ten different judges, each unaware of the others'
cases and rulings. Each of the six warrants issued for
Richard's arrest during that period were set aside - often by another judge.
n100 Two different police departments responded to twenty-two
calls for help from Karen's and Richard's residences that year; no responding
officer was aware of any previous calls when he arrived at the
scene. n101
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n99. See Jefferson County, Office for Women Mortality Review Committee, Case
of Karen Graves: Report to Country Judge/Executive David L.
Armstrong and Domestic Violence Prevention Coordination Council 11 (1996) [hereinafter
Case of Karen Graves].
n100. See id.
n101. See id. at 12. A multi-city study of spousal homicide found that in
85% of the cases, the police had intervened on at least one occasion
in the preceding two years; in 54% of the cases, they had intervened on five
or more occasions. See Lawrence W. Sherman & Richard A. Berk,
The Specific Deterrent Effects of Arrest for Domestic Assault, 49 Am. Soc. Rev.
261, 263 (1984) (citing 1976 Police Foundation study of
domestic violence in Detroit and Kansas City).
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Both Karen and Richard filed Domestic Violence Petitions against each other,
seeking protection from physical abuse. Karen's Petition alleged
that Richard had pulled the phone cord out of the wall when she attempted to
call 911 and that he had recently threatened to kill her if she left
him. She described Richard's past abuse, which included hitting Karen in the
back with their son's car seat so hard that she had trouble walking;
"stomping" on her ear; and striking her when she refused to have sex.
Karen also filed for divorce, custody, and child support. n102 These family
law cases were heard by three different judicial officers and involved eight
separate hearings. n103
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n102. See Case of Karen Graves, supra note 99, at Summary of System Contacts, 2-4.
n103. See id. at Summary of System Contacts, 4-18.
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Richard Graves was enrolled in three separate court-ordered counseling programs
during this year, two for alcohol and drug abuse. A
sixteen-session anger management program reported his "successful"
completion. n104 Advocates from the Center for Women and Families,
Adult Protective Services, Child Protective Services, and the County Attorney's
Office all worked on aspects of the couple's lives, but there is
no evidence of any communication among the agencies. n105
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n104. See id. at Summary of System Contacts, 16.
n105. See Case of Karen Graves, supra note 99, at 12.
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The violence in the Graves' relationship escalated rapidly during this period.
In May 1995, Richard fired a nine-millimeter handgun into the ground
near Karen's new boyfriend, who was accompanying her as she came to the marital
home to pick up her personal belongings. n106 Over the
next several weeks, Richard made repeated death threats. n107 In September 1995,
Karen submitted a letter to the court in which she pleaded:
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n106. See id.
n107. See id. at Summary of System Contacts, 10-17.
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I beg this court and all other courts involved to please put this case to rest....
I beg the courts to make Richard follow your orders, and when
he doesn't, give consequences for his actions. I beg the courts to read the
entire file from beginning to end before making a decision. I beg the
courts to protect me, and my children. n108
Six months later, in March 1996, Richard took a shotgun to Karen's home, murdered
her, and then committed suicide. n109
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n108. Id. at 11 (quoting letter from Karen Graves, dated Sept. 19, 1995).
n109. See id. at Summary of System Contacts, 18.
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A. How the Traditional Court System Has Failed Domestic Violence Victims
The conventional court system's response to domestic violence cases can be woefully
ineffective. The problem is attributable, at least in part,
to fundamental failures of information-sharing and coordination within and among
each of the agencies involved, from the point of intake to the
time of trial.
1. Failure to Coordinate the Intake Process
The fragmentation of the traditional court intake process prevents many battered
women from discovering the multiple and complementary
options available to them. This information barrier deprives victims of the
comprehensive protection they need and the relief to which they are
legally entitled.
Although these failures in coordination may have a detrimental impact on all
kinds of cases, they are particularly harmful in the family abuse
arena, where a single incident of domestic violence frequently spawns numerous,
diverse cases. Most other human interactions that wind up in
court are resolved in a single litigation, so the procedure is relatively straightforward.
For example, a contest over a decedent's will leads to a
probate case; a physician's dubious decision to operate leads to a medical malpractice
suit; an assault by a stranger is likely to lead to a
criminal case and perhaps, if the perpetrator is a deep pocket, to a civil tort
suit.
But a victim who wishes to safely end the relationship has no simple way to
proceed. Besides wanting to prosecute criminally, she probably
needs a civil protection order. If she is married to the abuser, she must file
for divorce; married or not, if they have children in common she
needs a determination of custody, child support, and possibly protection for
her children from the perpetrator's abuse. It is impossible to resolve
all of the issues involved in one law suit; in each case the judge is authorized
to award quite different forms of relief.
A criminal prosecution culminating in a conviction sends a powerful message
- to the individual batterer and to the larger community - that the
civil justice system cannot replicate. n110 And in cases where the violence
is severe and the perpetrator persistent, incarceration may be the
best-or only-way to ensure the victim's safety. n111
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n110. See Hanna, supra note 10, at 1889-90. Criminal enforcement encourages
the "educational function of law - to teach members of society
that certain behavior is morally wrong or socially intolerable." Natalie
Loder Clark, Crime Begins at Home: Let's Stop Punishing Victims and
Perpetuating Violence, 28 Wm. & Mary L.Rev. 263, 277 (1987).
Although civil protection orders have their own deterrent effect, they appear
to be less effective than criminal sanctions. A recent
multi-jurisdiction civil protection order study showed that 8.4% of victims
experienced at least one incident of physical abuse within the first six
months of the order's duration, and 12.6% experienced at least one incident
of psychological abuse. See NCSC Civil Protection Order Study,
supra note 59, at 49.
n111. Of course, criminal prosecution can result in more than incarceration.
A batterer may be placed on probation and required to complete
counseling or substance abuse treatment or to reimburse the victim for property
damage or medical bills.
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But victims who pursue criminal prosecution n112 typically must rely on the
civil justice system as well. Rapid resolution of a volatile situation is
crucial in these cases. While civil protection order suits typically are scheduled
for trial within ten to thirty days after the complaint is filed,
n113 criminal prosecutions typically proceed far more slowly. n114 In addition,
a civil protection order can include a spectrum of relief far
broader than that available in a criminal prosecution. The protection order
may direct the abuser to stay away from the victim, stop threatening
her and vacate the parties' residence. n115 It may award the victim temporary
use and possession of jointly owned property n116 and can
resemble a short-term divorce decree in cases where the parties have children
together. n117 The breadth of the civil protection order remedy
makes it both a necessary alternative and an important supplement to criminal
prosecution.
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n112. Many victims do not wish to pursue the arrest and prosecution of a batterer,
due to fear of retaliation, desire to save the relationship, or
concern that conviction will cut off child support. See Peter Finn, Statutory
Authority in the Use and Enforcement of Civil Protection Orders
Against Domestic Abuse, 23 Fam. L.Q. 43, 44 (1989). In addition, battered women
in the immigrant community may have concerns about
exposing the perpetrator to deportation; women from minority communities may
have concerns about betrayal and ostracization. See supra text
accompanying notes 74-81.
n113. See Barbara J. Hart, National Council of Juvenile and Family Court Judges,
State Codes on Domestic Violence: Analysis, Commentary and
Recommendations 8 (1992).
n114. In the District of Columbia, for example, criminal prosecutions for
domestic violence misdemeanors typically are scheduled more than six
months after arraignment. See Interview with Robert Spagnoletti, supra note
62. Although a temporary order directing the defendant to stay
away from the complaining witness may be entered during the pendency of a criminal
case, the scope of such an order is limited and its
enforceability lies within the sole discretion of the prosecutor.
n115. Almost all jurisdictions authorize the court to award these forms of
relief in a civil protection order case. See Klein & Orloff, supra note
39,
at 914-28.
n116. At least 17 jurisdictions authorize the court to award this form of relief in a civil protection order case. See id. at 937.
n117. See supra text accompanying notes 43-44 (discussing the importance of
these forms of relief for a battered woman's safety). It is worth
noting that these forms of relief are available in theory; the infrequency with
which judges actually include custody and child support awards in
civil protection orders is a serious problem. See infra text accompanying note
228.
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Although a civil protection order can resolve a survivor's family-law problems
swiftly, it only provides temporary relief. The order will expire six to
twelve months later, n118 leaving the couple back at square one. Both parents
will once again have equal rights to the children - a particular
problem in domestic violence cases due to the high incidence of parental kidnapping
used to abuse a victim psychologically. n119 The biweekly
child support checks suddenly cease, imposing on most victims serious financial
difficulties that may force them back into the arms of their
abusers. n120 Many victims will spend several months with neither protection
for their children nor financial assistance. This gap in legal
protection could be eliminated if a battered woman filed for permanent relief
(through divorce, paternity and support, or custody actions) early
in the life of her civil protection order. But because so few domestic violence
petitioners are represented by counsel, n121 only a tiny
percentage understand the need to do so.
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n118. A 1990 survey reports that 28 states set the maximum duration between
six and 12 months, three states permit more than one year,
seven states set no upper limit, and eight states limit the duration to less
than 180 days. See Finn & Colson, supra note 44, at 16-17. Due to
increasing evidence of the frequent recurrence of abuse following the expiration
of year-long orders, the legislative trend is to increase their
duration. In its influential Model Code on Domestic and Family Violence, the
National Council of Juvenile and Family Court Judges proposed that
civil protection orders should remain in effect until further order of the court.
See National Council of Juvenile and Family Court Judges, Model
Code on Domestic and Family Violence 306(5) (1994).
n119. See Klein & Orloff, supra note 39, at 972 (explaining that over
one-half of child abductions occur in the context of domestic violence and
77% of abductors abduct a child out of a desire to hurt the other parent).
n120. See supra text accompanying note 43. This problem becomes increasingly
acute as economic resources available to low-income battered
women continue to diminish. Over the past decade in the United States, the rich
have been getting richer and the poor, poorer. Income for
families in the bottom 40% of the economy declined in real dollars, income for
the top 20% rose by 28.9%, and income for the top one percent
rose by 74%. See James Garbarino, The Meaning of Poverty in the World of Children,
35 Am. Behav. Scientist 220, 223 (1992). Poverty also has
become more sustained: in the 1970s, 37 of 100 people moved out of poverty;
in the 1980s, it was 23 of 100. See id. at 225. Divorce reform
also has resulted in a disproportionate impoverishment of women. See, e.g.,
Lenore J. Weitzman, The Divorce Revolution: The Unexpected Social
and Economic Consequences for Women and Children in America 323 (1985).
n121. The District of Columbia is fairly typical in this regard. Approximately
65% of petitioners and 70% of respondents are unrepresented in civil
protection order cases. See D.C. Gender Bias Task Force Report, supra note 44,
at 143.
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It is difficult to overestimate the obstacles battered women face pursuing
complementary relief through multiple cases. To initiate each case
the victim must master an unfamiliar set of court procedures and wait in line
for hours. Each case must be filed in a separate clerk's office and,
in many jurisdictions, a different courthouse in another part of town. If she
is employed, or has difficulty obtaining child care, she often cannot
spare the hours and sometimes days it takes to get into several court systems,
let alone pursue multiple cases through to trial. For a person in
crisis, who may be recovering from a beating the night before, these obstacles
can prove insurmountable. n122 An added complication is that a
criminal case is brought by a prosecutor, whom the victim may perceive as "her"
lawyer, but who actually represents the government's
sometimes divergent interests; n123 civil cases may involve a different attorney
for each litigation or, more typically, no legal assistance at all.
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n122. In the District of Columbia, prior to 1995, victims who wished to file
civil protection order cases were required to go to two offices, the
D.C. Citizen's Complaint Center and the D.C. Superior Court. Although the buildings
were only three blocks apart, many victims never made it to
the second stop. Interview with Meshall Thomas, Project Manager, Emergency Domestic
Relations Project, in Washington, D.C. (July 15, 1998)
(detailing the experiences of Ms. Thomas during her 19 years of working with
victims at the Complaint Center and the courthouse).
n123. The prosecutor represents the government, whose interests in pursuing
or dropping charges or in seeking a particular sentence, often
differ from those of the individual victim. See supra text accompanying note
73.
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This artificially fragmented system reinforces a larger tendency to direct
most battered women toward a single avenue in the multi-track court
system, leaving few able to gain access to the manifold resources they need.
For example, when the police respond to a domestic violence call
and find probable cause to believe a crime has occurred, they direct the victim
toward the criminal justice intake process, typically informing her
that she must report to the prosecutor if she wishes to press charges. n124
But, in twenty-two to forty percent of cases, police failed to let
victims know about the additional possibility of a civil protection order remedy,
n125 and even more frequently failed to inform them about the
basic procedures for obtaining such an order. n126 And because most prosecutors
know little about the civil protection order process, they are
unlikely to assist the victim in deciphering the civil system. n127
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n124. This example presents a best-case scenario of police response. In many
cases that meet the probable cause standard, the police do not
even assist the victim to initiate the criminal justice process. For example,
in a study based on data collected in 1994-95, prior to the existence
of D.C.'s domestic violence court, petitioners who filed Civil Protection Order
(CPO) cases in the District of Columbia reported that although the
police responded to their calls 93.8% of the time, they took notes in only 64.8%
of cases, interviewed witnesses in 37.5% of cases, and
arrested respondents in 41.2% of cases. See NCSC Civil Protection Order Study,
supra note 59, at 62 tbl.VII.1. Only 43.8% of victims reported
that they believed the police were helpful. See id. at 80. An earlier study,
conducted in 1987-88, found that police responded to calls in 92% of
cases, but arrested the abuser in only five percent of cases. See Sands et al.,
supra note 55, at 3, 6. This study also found that there was no
correlation between the infliction of serious injury on the victim and likelihood
of arrest; instead, the two factors most likely to lead to an arrest
were whether the batterer was verbally abusive to the police officer and whether
he had damaged a vehicle. See id. at 4, 6-7.
n125. See NCSC Civil Protection Order Study, supra note 59, at 79-80 (Delaware: 40%; Denver: 39%; District of Columbia: 22%).
n126. See NCSC Civil Protection Order Study, supra note 59, at 79-80 (Delaware: 43%; Denver: 46%; District of Columbia: 29%).
n127. See Meeting Minutes, D.C. Domestic Violence Coordinating Council Civil
Process Subcommittee (indicating that the widespread nature of
this problem was noted by panel of long-time local practitioners in domestic
violence law) (on file with author).
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Likewise, when a shelter worker, advocate, or friend refers a victim to the
appropriate clerk's office to file a civil protection order case, it is
highly unlikely that she will receive any information about the possibility
of pressing criminal charges. National surveys reveal that court clerks
offer victims very limited assistance, n128 and that a substantial number actually
discourage petitioners from filing for protective orders, n129
much less inform them of additional remedies to pursue. n130
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n128. See infra text accompanying notes 197-201.
n129. See infra text accompanying note 198.
n130. Many clerks refuse to provide victims with any assistance on the ground
that court employees should not dispense "legal advice," and in
some jurisdictions legislation actually bars them from doing so. See Finn &
Colson, supra note 44, at 26-27. Other reasons for court personnel's
apparent hostility toward victims are explored infra, text accompanying notes
188-197.
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A few victims manage to navigate both the criminal and civil systems. But
the lack of coordination and information-sharing at intake confuses
many battered women about the fundamental differences between the two kinds
of cases. As one researcher put it, "If I had two words to
describe what I see as the general experience of victims in the [justice] system,
[they are] "mass confusion.'" n131 And the factor that "does
the most damage in terms of follow through is that [victims] don't differentiate
at all, or if they do, they differentiate incorrectly, between the
civil and criminal systems." n132
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n131. Videotape: Domestic Violence Training (U.S. Attorney's Office 1996)
(remarks of Lauren Bennett, Ph.D. candidate) (on file with author)
[hereinafer Domestic Violence Training].
n132. Id.
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The results can be devastating. In a recent study conducted in the District
of Columbia, n133 for example, a woman was asked why she had
failed to appear as a witness in the criminal prosecution of her batterer, which
seriously jeopardized the likelihood of his conviction. She
explained that during her civil protection order trial, she had pleaded with
the judge to imprison the perpetrator. The judge responded that he
had no power to do so. So when she received notification of the criminal trial
date, she threw it away. Why, she thought, would the criminal
case be any different? n134
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n133. See Lauren Bennett, Systemic Obstacles to the Criminal Prosecution of
a Battering Partner: A Victim Perspective, J. Interpersonal
Violence (forthcoming 1999) (on file with author). The study was conducted prior
to the institution of Washington's integrated domestic
violence court.
n134. See Domestic Violence Training, supra note 131. See also Bennett, supra
note 133 at 8.
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2. Failure to Coordinate Orders Entered in Multiple Cases Involving a Single
Family
Another major source of the traditional court system's failure is a deeply ingrained
judicial tradition - the creation of an information vacuum
around the finder of fact. A judge presiding over a case considers only the
information formally submitted into evidence by the parties appearing
before him - nothing more. Two predictable consequences flow from this tight
restriction. First, a judge who is unaware of other related cases
cannot possibly assess the most appropriate course of action. Second, different
judges hearing parallel cases arising from the same incident
frequently enter conflicting orders. The story that follows illustrates these
problems.
Robin n135 filed a civil protection order case after her long-time boyfriend,
Jim, high on PCP, tied her to a chair and beat her in the head and
face with a thick electrical cord. After trial, Judge Jones held that Jim had
committed an intrafamily offense and ordered him to stay away from
Robin, her home, and her workplace. He awarded custody of the parties' two young
children to Robin and gave Jim limited visitation rights, to
commence only after Jim completed a drug treatment program and parenting classes.
To eliminate potential sources of contact and conflict
between the parties once visitation began, Judge Jones carefully specified the
dates and times that visits would occur and designated Larry,
who was Robin's uncle and got along fairly well with Jim, to transfer the children
between parents. The civil protection order containing these
provisions was to remain in effect for twelve months.
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n135. See supra note 13.
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Soon afterward, the prosecutor decided to press charges against Jim for aggravated
assault. So ten days after the civil protection order trial, in
a different courtroom on a different floor, Judge Smith presided over Jim's
arraignment. The case file in front of Judge Smith contained no
cross-referenced data informing her that the defendant and complaining witness
were involved in a civil case arising out of the same incident, or
that a civil protection order was already in effect. And no one appearing before
Judge Smith volunteered this information. Robin was not asked
to appear in court at this early stage of the criminal process; even if she
had been present, she was not a party to the criminal case and
therefore probably would not have been given an opportunity to speak. n136 Because
the court had no integrated intake process, the
prosecutor had no information about any related civil case. And even if Jim
told his defense attorney about the protection order, the lawyer
might well have concluded that it would be against his client's interests to
inform the judge of other lawsuits pending against him.
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n136. The parties to a criminal prosecution are the defendant and the state. The victim's role is limited to that of a "complaining witness."
In the absence of an advocate, a victim also is likely to be too intimidated
by the court process and the immediate presence of her abuser to
speak. See Kinports & Fischer, supra note 98, at 216-18. And most victims
would not understand the need to raise the issue, because they
would assume that the judge already is informed about all pending cases.
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Left in the dark, Judge Smith ordered Jim released pending trial. She issued
a typical criminal stay away order, directing Jim to stay away from
Robin and her home, "except for reasonable rights of visitation with the
children." The order was to remain in effect until trial, set in six months.
The family was then left to sort out two entirely inconsistent court orders.
With which should they comply? Both orders were issued by trial
court judges; neither had legal precedence over the other. If Jim now comes
to Robin's apartment claiming he wants to exercise his "reasonable"
visitation rights, he is in violation of the civil protection order. But what
will the police do when Robin calls? Can they arrest Jim when he shows
them Judge Smith's order, which gives him the right to be on the premises to
see his children? And if Robin seeks to enforce her protection order
by asking the court to hold Jim in contempt, she is unlikely to succeed. Jim
has a strong argument that his violation was not knowing and
"willful," n137 because he thought he was complying with the terms
of the criminal stay-away directive. Entry of the criminal stay-away order
thus deeply undermined the effectiveness of Robin's civil protection order.
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n137. In most jurisdictions, the elements of criminal contempt include "willful"
violation of a court order. See, e.g., In re Thompson, 454 A.2d
1324, 1327 (D.C. 1982).
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These failures of coordination and information sharing at intake and at trial
preclude domestic violence victims from obtaining comprehensive
justice. How can these problems be remedied?
B. Integrated Domestic Violence Courts: A Modest Proposal for Reform
The creation of specialized, integrated domestic violence courts affects increased
case coordination from the point of intake through trial.
Several jurisdictions have taken initial steps in this direction, either by
consolidating all civil protection order cases into a single docket, n138 or
by creating a dedicated calendar for domestic violence criminal prosecutions.
n139 But until intake and case processing of civil and criminal
cases are integrated into a single, coordinated system, the problems inherent
in today's justice system cannot be resolved effectively. Only
three jurisdictions - the District of Columbia, Florida, and Hawaii n140 - have
created such unified courts.
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n138. See Mithra Merryman, Specialized Domestic Violence Courts: A New Means
to Address an Age Old Problem 32 n.5 (1994) (unpublished
manuscript, on file with author).
n139. Examples of specialized criminal misdemeanor domestic violence dockets
can be found in Chicago, Illinois; Winnipeg, Ontario; and Quincy,
Massachusetts. See Jilian Mincer, Victims of Abuse Seek Help in Experimental
Court, N.Y. Times, Aug. 11, 1985, at A28; Elena Salzman, The
Quincy District Court Domestic Violence Prevention Program: A Model Legal Framework
for Domestic Violence Intervention, 74 B.U.L.Rev. 329,
335 (1994); E. Jane Ursel, The Family Violence Court of Winnipeg, Manitoba L.
J. 100, 100-102 (1994).
n140. The Dade County court was the first Florida court to integrate the civil
and criminal domestic violence justice systems. See Cindy S.
Lederman, Dade County Domestic Violence Court: A Plan for the Future, Ct Rev.,
Spring 1993, at 22-23. The state's original Dade County model
has been followed in Broward, Hillsborough, Jacksonville, and St. Petersburgh
counties. See Merryman, supra note 138, at 3 n.4. In 1965, Hawaii
established its unified family court, which includes all domestic violence cases.
See Barbara A. Babb, Where We Stand: An Analysis of America's
Family Law Adjudicatory Systems and the Mandate to Establish Unified Family
Courts, 32 Fam. L.Q. 31, 38 (1998).
Of these three, the District goes furthest. First, the Dade County domestic
violence court lacks jurisdiction to consider child custody, visitation,
or support issues - even in civil protection order cases - a major drawback
in providing comprehensive, effective relief to victims. Interview with
Linda Dakis, Administrative Judge, Miami Domestic Violence Department, in Miami,
Fla. (Nov. 1996). Second, the Dade County court does not
incorporate any family law cases that can provide longer-term relief than that
available in a civil protection order. See id. Hawaii's family court's
have comprehensive jurisdiction, Babb, supra, at 42, but resource limitations
prevent them from hearing criminal cases in some parts of the
state. See Laudan Y. Aron & Krista K. Olson, Urban Institute, Efforts by
Child Welfare Agencies to Address Domestic Violence: The Experiences
of Five Communities 33 (1997).
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Integrated domestic violence courts typically aim to achieve at least three
fundamental goals. First, they try to provide victims with a
"one-stop shopping" intake center that provides comprehensive assistance
with the full range of intimate violence litigation and related social
services. Second, they try to coordinate civil protection order, family law,
and criminal dockets so that the court can handle cases, to the
greatest extent possible, on a "one family, one judge" basis. n141
Finally, they ensure that the court itself is located in a place that provides
victims with security and protection from physical assault.
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n141. Other important features of integrated domestic violence courts that
are beyond the scope of this Article are the provisions of meaningful
intervention, counseling, and monitoring of abusers and the maximization of
the provision of needed resources to the entire family.
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1. A "One-Stop Shopping" Intake Center
An effective domestic violence intake center must serve as the point of entry
for all domestic violence complainants in civil and criminal cases.
It should be designed to provide comprehensive services through a coordinated
effort of staff members from organizations and agencies with
complementary areas of expertise and responsibility. A description of the District
of Columbia's Domestic Violence Intake Center illustrates some
of the possibilities, n142 although some aspects of this relatively new work-in-progress
still work better in theory than in practice.
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n142. The Domestic Violence Intake Center is jointly administered by the author,
as Director of the Georgetown University Emergency Domestic
Relations Project, and the Chief of the Office of Corporation Counsel's Domestic
Violence Unit. See District of Columbia Superior Court, District of
Columbia Domestic Violence Plan 63 (1995) (on file with author) [hereinafter
D.C. Domestic Violence Plan]. Where no other citation is provided,
the discussion below is based on the author's personal knowledge as Co-Director
of the Intake Center.
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The Domestic Violence Intake Center, located in D.C.'s central courthouse,
assists petitioners in "intrafamily" cases, which local law defines
as
those where the parties are related by blood, legal custody, marriage, cohabitation,
a child in common, or a romantic relationship. n143 Victims
are referred to the Intake Center by police officers, shelters, hotlines, and
advocacy organizations. n144
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n143. D.C. Intrafamily Offenses Act, D.C. Code Ann. 16-1001(5)(A)-(B) (1998).
n144. Glitches remain in the attempt to centralize the intake process. In
particular, some criminal cases are initiated directly through the
prosecutor's office with no Intake Center involvement. Efforts are being made
to remedy this problem.
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When a victim enters the Intake Center, she first meets with a Civil Intake
Counselor to discuss the protection order process. n145 Some Intake
Counselors are employed by a private, outside advocacy organization; n146 others
by a government agency. n147 The Intake Counselor
conducts an intensive interview with each victim, explaining the protection
order process and describing the potential relief. She assists the
petitioner in filling out requisite pleadings and other court forms, and takes
photographs of any visible injuries. The counselor describes what the
petitioner can expect at the court hearing and helps her prepare for trial and
identify potential witnesses and exhibits. The counselor discusses
the option of obtaining an immediate, ex parte temporary protection order to
cover the two-week period from intake to hearing, and assists the
petitioner in developing a practical plan to keep herself safe. n148 If the
victim is in particular need of legal assistance, n149 either because she
is not sufficiently articulate to present her case to the court, or because
her case involves complex legal issues or especially severe physical
abuse, the counselor will assist her in obtaining representation by a government
attorney, a local legal service provider, a volunteer member of
the private bar, or a law school clinical program. n150
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n145. Four full-time counselors are on staff, all of whom have bachelors degrees
or law degrees as well as substantial experience in the
domestic violence field. One of the civil intake counselors is bilingual in
English and Spanish, which is the language spoken by the largest minority
language population in the District of Columbia.
n146. This organization, the Emergency Domestic Relations Project, is a part
of the Georgetown University Law Center's Domestic Violence
Clinic. The author serves as Director of the Project, which has been providing
legal information and referral services to victims of domestic
violence for 20 years.
n147. The Office of Corporation Counsel, the legal arm of the D.C. Mayor's
Office, is statutorily designated to assist victims of domestic
violence. See D.C. Code Ann. 16-1003(a) (1991). Until 1982, this office was
the sole route to obtaining a protection order - no private right of
action existed. See D.C. Code Ann. 16-1003(a) (1970) (amended 1982). Despite
this fact, the Corporation Counsel failed to designate even a
single full-time attorney to this caseload until 1990, 20 years after the statute
was first enacted.
n148. These services are provided to an average of over 20 petitioners every business day.
n149. The overwhelming number of civil protection order cases filed each year
- close to 4,000 - preclude adequate legal representation of
victims. As is true in virtually every other jurisdiction, only 30% of petitioners
have counsel in Washington, D.C. See D.C. Gender Bias Task
Force Report, supra note 44, at 143.
n150. The Emergency Domestic Relations Project regularly trains private attorneys
who are interested in representing victims of domestic
violence in civil protection order cases, and the D.C. Bar Public Service Activities
Corporation sponsors an annual family law training seminar that
focuses on how to represent domestic violence victims. Law school clinical programs
devoted to student representation of domestic violence
victims exist at American, Catholic, Georgetown, and George Washington universities.
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If the victim and batterer have minor children in common, the Intake Counselor
explains the short-term nature of the relief available through a
civil protection order. If the petitioner is interested in pursuing an additional
action for permanent child support, she next sees a representative
from the D.C. Office of Paternity and Child Support Enforcement, who assists
her in filing a paternity and support petition. The civil protection
order and paternity and support cases are scheduled for trial on the same day,
so that any child support award can be entered in the long-term
paternity and support case. This way, the payment obligation will continue until
the children reach the age of majority, rather than ceasing
upon expiration of the one-year protection order. Although the Intake Center
hopes to provide assistance with other family law cases in the
future, such as divorce and custody suits, insufficient resources have precluded
such activity to date. n151
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n151. The Chief Judge has committed to including all family law cases, other
than child abuse and neglect, in the Domestic Violence Court. See
Administrative Order No. 96-25, Re Domestic Violence Unit of the Court (Oct.
31, 1996) (on file with author); cf. District of Columbia Domestic
Violence Plan, supra note 142, at 38.
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After meeting with a Civil Intake Counselor, the petitioner has an opportunity
to meet with a U.S. Attorney's Office Victim Advocate to discuss
the possibility of pursuing a criminal prosecution. The Victim Advocate explains
the difference between, and complementary nature of, the civil
and criminal justice systems and clarifies that both kinds of cases may be pursued
simultaneously. n152 If the accused perpetrator already has
been arrested, the Victim Advocate collects information necessary to the decision
of whether to press charges, including the victim's wishes,
potential sources of proof, the severity of the offense, and the history of
violence. The Advocate communicates this information to a
prosecutor, who decides whether and how to charge the case.
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n152. This information also is provided in written form, in Charlotte Clarke
& Deborah Epstein, U.S. Dep't of Justice, Know your Rights: A Victim's
Guide to the Domestic Violence Justice System (1997).
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If the batterer has not been arrested and the criminal justice process has
not yet been initiated, the Victim Advocate makes a preliminary
assessment of whether the case might merit prosecution. In such cases, if the
victim is interested in pursuing a criminal action, the Advocate
takes her to the police officer on staff at the Intake Center. The officer conducts
an interview and initiates an investigation. If this leads to the
issuance of an arrest warrant, a criminal prosecution may begin. n153
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n153. This facet of the intake system sounds better in theory than it is in
practice. The Metropolitan Police Department has failed to assign a
sufficiently well-trained and committed officer to the Intake Center; the result
has been the presentation of a paucity of arrest warrant
applications for approval from the prosecutor's office. Interview with Robert
Spagnoletti, Chief, U.S. Attorney's Office Domestic Violence Unit, in
Washington, D.C. (June 1, 1998).
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Representatives from the D.C. Coalition Against Domestic Violence, a grassroots
victim service organization, also are on staff at the Intake
Center. The Coalition advocates are available to provide interested victims
with non-legal assistance, including referrals to emergency shelters,
social service agencies, battered women's support groups, and counseling services.
n154
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n154. Interview with Stephanie Snowden, Director, Victim Advocacy Program,
D.C. Coalition Against Domestic Violence, in Washington, D.C.
(Mar. 18, 1998).
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After a petitioner completes the intake process, she goes next door to the
central domestic violence clerk's office. n155 Specially trained clerks
open the necessary case files and schedule hearing dates. They check the court's
computer systems to discover other cases involving the
same family members and attempt to bring the court files together so that the
judge assigned the new case will have a complete case history.
n156
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n155. This office bears the unwieldy title of Domestic Violence Coordination
Unit. See District of Columbia Domestic Violence Plan, supra note
142, at 55-58.
n156. Again, this component of the process is problematic in practice. Different
sectors of the court utilize separate, and often incompatible,
computer systems, making it inordinately burdensome to identify all relevant
cases.
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The number of petitioners assisted at the Domestic Violence Intake Center
is climbing steadily and currently averages twenty two per day, n157
in a city of 550,000. n158 Initial data indicate that increased coordination
and advocacy services have opened up new options for victims. The
number of civil protection order suits has increased substantially n159 and
the number of criminal prosecutions has skyrocketed. n160
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n157. See Domestic Violence Intake Center Sign-In Sheets (Jan. 1, 1998-June 30, 1998) (copies on file with author).
n158. See U.S. Dept. of Commerce, Bureau of the Census, Statistical Abstract of the United States 28 (1998).
n159. See Memoranda from Paul Roddy, Director, Domestic Violence Unit, to
Eugene Hamilton, Chief Judge, D.C. Superior Court (Jan. 1996-June
1997) (on file with author) (Jan. 1997: 259 new Civil Protection Order (CPO)
cases filed; Feb. 1997: 215; Mar. 1997: 298; Apr. 1997: 295; May
1997: 289; June 1997: 315) [hereinafter Roddy Memoranda.]
n160. See id. (Jan. 1997: 193 new domestic violence criminal misdemeanors
filed; Feb. 1997: 160; Mar. 1997: 232; Apr. 1997: 285; May 1997:
283; June 1997: 288).
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In addition, the Intake Center has facilitated a substantial increase in the
entry of child support awards in domestic violence cases. Previously,
such awards were entered in only 2.6% of civil protection order cases involving
a custody order. n161 Initial data indicate that child support is
now being entered routinely in civil protection order cases in which the parties
have children in common. n162 In addition, petitioners who
obtain child support orders now gain an enforceable obligation that lasts until
the child reaches adulthood, instead of only one year; they also
receive an average monthly payment of over three hundred dollars, n163 far above
the previous fifty dollar average. n164
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n161. See D.C. Gender Bias Task Force Report, supra note 44, at 148.
n162. See Roddy Memoranda, supra note 159.
n163. See Office of Corporation Counsel Cumulative Report, Domestic Violence Paternity and Support Cases (1997).
n164. See Emergency Domestic Relations Project Annual Report (1995).
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2. Coordinated Judicial Calendars
An effective court scheduling system must promote long-term judicial responsibility
for cases and must maximize the information available to
each judge about every case. A description of the Washington, D.C. Domestic
Violence Court system provides a starting place for thinking about
how to best accomplish these goals.
Prior to the formation of D.C.'s new court, judges were assigned to hear civil
protection order cases on a monthly rotation, returning only after a
several year hiatus. This exposure was far too short to gain any real expertise
in the area, and many judges openly stated their disdain for the
assignment. Several judges failed to take responsibility for even this short-term
caseload, routinely continuing cases that appeared complex or
time-consuming until the first business day of the next month, when another
judge would rotate onto the calendar and perform the same ritual.
Today, three judges and one hearing commissioner are assigned to the court
on a full-time basis for a year at a time. The judicial officers and
their clerks now receive training n165 on domestic violence issues before commencing
the assignment. Training sessions and written materials
challenge commonly-held myths about domestic violence victims and perpetrators,
and include discussions about applicable law and procedure,
as well as special issues that may arise, such as cases involving immigrant
and non-English-speaking parties, or special considerations applicable
where parties appear pro se. n166 The assigned judges meet on a bi-weekly basis
with a group of representatives from agencies and
organizations involved with the court, including the prosecutor, public defender,
victim advocates, the clerk's office, pretrial services, probation,
and court administration. The meetings focus on efforts to identify and resolve
existing procedural problems with the court and on strategies for
continuing improvement.
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n165. Although the very existence of judicial training constitutes an improvement
over the past, the training currently permitted by the court is
still quite limited.
n166. See, e.g., Deborah Epstein, District of Columbia Domestic Violence Benchbook:
Civil Protection Order Cases 42-44 (1997).
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Each judge presiding over a domestic violence case typically receives information
about the other pending and resolved suits involving the same
family. n167 By reading through the accumulated case files, he can obtain a
more complete story about the parties' history together. This
allows for a better-considered ruling and prevents the entry of multiple, conflicting
orders.
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n167. As mentioned, supra note 156, this coordination still works far better
in theory than in practice. Improvement should occur when the
court obtains a fully unified data processing system.
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3. Physical Location of the Court
Another important aspect of an improved court system involves the physical location
and layout of a domestic violence court. A long-term
failure to examine this issue has created physical hazards for domestic violence
victims nationwide. n168
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n168. In response to the numerous gender bias task force reports highlighting
this concern, a number of jurisdictions are beginning to make
improvements. See, e.g., New York Judicial Committee on Women in the Courts,
Five Year Report 1 (1991).
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In Washington, D.C., civil protection orders previously were heard in a single
courtroom, located on a dimly-lit, basement level of the courthouse
- the only level that was excluded from hallway patrols by marshals and security
officers. Although all cases were scheduled for 8:30 A.M., the
courtroom did not open until 9:00 and the judge typically did not take the bench
until 10:30 or later. Victims were forced to wait for hours
alongside their batterers in the overcrowded courtroom or in the adjacent hallway.
On numerous occasions lawyers were forced, by default, to
intervene during verbal and physical attacks by batterers. n169 Many jurisdictions
have reported that victims are at risk of abuse in the
courthouse itself due to the lack of separate waiting rooms and security services.
n170
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n169. From 1990 to 1996, I personally intervened in many such situations.
For a description of one batterer's attempts to physically and verbally
attack a petitioner as she waited to testify against him, see Transcript of
Proceedings at 20, Stephens v. Kelly, No. 1490-91 (D.C. Sup. Ct.
Nov. 26, 1991) (on file with author).
n170. See D.C. Gender Bias Task Force Report, supra note 44, at 157; Achieving
Equal Justice for Women and Men in the Courts: The Draft
Report of the Judicial Council Advisory Committee on Gender Bias in the Courts
(California) tab 6, 23-24 (1990) [hereinafter California Gender
Bias Task Force Report]; Massachusetts Gender Bias Task Force Report, Report
of the Gender Bias Study of the Supreme Judicial Court,
Commonwealth of Massachusetts (Ruth I. Abrams & John. M. Grezney eds., 1989),
at 91 [hereinafter Massachusetts Gender Bias Task Force
Report]; Report of the Missouri Task Force on Gender and Justice, 58 Mo. L.
Rev. 485, 516 (1993) [hereinafter Missouri Gender Bias Task Force
Report]; Report of the New York Task Force on Women in the Courts, 15 Fordham
Urb. L.J. 1, 37 (1986-87) [hereinafter N.Y. Gender Bias Task
Force Report].
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Today, Washington's Domestic Violence Court is housed on the first floor of
the court building, in four adjacent courtrooms that are close to
both the main entrance, staffed by a high concentration of U.S. Marshals and
court security officers, and the child care center. Although
scheduling cases and lack of separate waiting rooms for victims and perpetrators
remain problematic, the improvements in lighting and security
have reduced the incidents of hallway assault.
C. Concerns Raised by An Integrated Intake and Calendaring Process
There are several drawbacks to moving domestic violence cases into a specialized
court. Insufficient physical space and personnel can result in
a lack of privacy for victim interviews and lengthy intake waiting periods.
n171 Incompatible data processing systems can obstruct case
coordination. n172 Judicial training may be insufficient n173 and overburdened
judges may become subject to burnout. Inadequate resources
can prevent the provision of comprehensive services for batterers, survivors,
and their children.
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n171. Sometimes the D.C. intake process is so lengthy that petitioners leave in frustration before they are provided with essential services.
n172. See supra note 156.
n173. See supra note 165.
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In addition, several policy concerns loom large. Perhaps the foremost of these
is that an integrated domestic violence court may exacerbate a
deeply-ingrained tension between those communities primarily concerned about
domestic violence and those primarily concerned about child
abuse and neglect.
An integrated court system creates an environment in which victims with children
are more likely to have extensive contact with government
attorneys and paralegals. This, in turn, means that government workers are more
likely to hear about abuse that occurred in the presence of
children or where children themselves actually were harmed. In the District
of Columbia, this has led to an increase (albeit a small one) in the
rate of government reports to Child Protective Services.
These reports can result in two scenarios which may undermine the effective
enforcement of domestic violence laws. In one, the victim herself
is charged with child abuse. In the second, the perpetrator is charged with
child abuse and the victim is charged with "failure to protect" the
children. In either case, there is a substantial possibility that the children
will be removed from the home and separated from both parents.
These cases point to a long-standing historical conflict between the domestic
violence community and the children's rights community - a
largely unnecessary one, given how much common ground they actually share.
Child advocates have focused primarily on the rapid removal of children from
the violent home. But this approach underestimates the influence
of adult-on-adult domestic abuse on the family dynamic. If battered women learn
that seeking protection from their abusive partner increases
the risk that their children may be taken away, they will be greatly deterred
from coming forward. As more women become reluctant to pursue
legal assistance, both they and their children, who are dependent on them to
escape, ultimately will remain trapped in violent families.
Moreover, in many "failure to protect" cases, the victim stays with
the perpetrator not because she does not care about the children, but
because she believes that staying is the best way to do so. Statistically, the
moment of leaving is frequently the most dangerous and the most
likely to result in death - of both the victim and her children. n174 Adult
victims are acutely aware of this possibility and, in addition, frequently
report that the batterer threatens that if she leaves, he will take the children
and she will never see them again. To stay and offer the children
what protection she can may at times be a better option than to allow the perpetrator
to abduct and mistreat the children. n175
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n174. See Mahoney, supra note 41, at 65-71.
n175. A woman's fear that an abuser may abduct her children is well-founded:
a strong connection exists between domestic violence and
parental kidnapping. See Klein & Orloff, supra note 39, at 972.
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I recently represented Phyllis Ojokolo, n176 a West African woman who came
to the court's Domestic Violence Intake Center seeking a civil
protection order. Her husband Tom had slapped and punched her repeatedly all
over her body; bitten her arms and back, leaving permanent
scars; raped her repeatedly; kicked her in the head; broken a fishing rod across
her back; thrown her down a staircase; choked her with a
telephone cord; pulled handfuls of hair out of her head; pinned her to the floor
and forced her two youngest children to beat her; and
repeatedly threatened to kill her. He also frequently hit the children in the
face and on their heads, and whipped them with belts, sometimes
until they bled. Tom worked for the court, and Phyllis knew little about the
American system of justice. So she believed him when he repeatedly
told her that if she ever tried to leave him or take him to court, he would
bring court employees to testify on his behalf and would convince the
judge that she was insane and that the children should be taken away from her.
Terrified of what might happen to her children, this threat kept
Phyllis hostage to Tom's abuse for nine years.
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n176. See supra note 13.
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But one night, Tom woke their five year-old daughter at 3:00 A.M. and dragged
her into the bathroom, despite the girl's attempts to resist. A
few hours later, Phyllis managed to get into the bathroom, where she saw blood
on the tile floor. She later found her daughter's underwear in
the washing machine, with remnants of blood stains still visible on the crotch.
The little girl told her mother that she had been raped. n177
Phyllis had never before believed Tom was capable of sexually abusing the children;
she decided - right then and there - that no matter what
the risks were, she had to seek help.
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n177. She said, "Daddy put his pee pee place in me."
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She went to the Domestic Violence Intake Center and told her story to a government
attorney, explaining that she wanted to get Tom out of
the house and to terminate his contact with her and the children. The attorney
immediately filed child abuse charges against Tom, but then
informed Phyllis that failure to protect charges would be filed against her
as well, on the ground that no one who had remained in an abusive
environment for so long could be relied upon to protect the children from Tom
in the future. The lawyer called the charges a "carrot," telling
Phyllis that if she followed through on her civil protection order case, the
failure to protect charges would be dropped.
Phyllis left court that day with an emergency order that terminated Tom's
rights to see the children until the matter could be resolved at trial. A
few weeks later, the court held a four-day hearing and issued a civil protection
order barring Tom from contacting Phyllis or the children for a
year and requiring him to go to counseling. He was denied any visitation rights
and ordered to leave the family home. In the months that
followed, Tom brought Phyllis back to court five times, attempting to regain
contact with the children and obtain control over the family. Phyllis
fought every motion and won each time. She took every form of legal action available
to her to protect her children, and repeatedly proved that
she was capable of doing so. She informed government prosecutors of each successful
outcome, but they refused to drop the failure to protect
charges. Trial in the abuse and neglect case against Phyllis and Tom was repeatedly
delayed, and is now scheduled almost a year after Phyllis
received her protection order. She has been forced to spend this entire period
living with these charges hanging over her head, constantly
terrified that the government will take her children away - just as Tom had
always threatened.
In communities and cities like Washington D.C., n178 stories like this one
spread rapidly. Several clients have subsequently shared similar stories
with me and have asked whether they can seek protection without risking their
relationships with their children. In light of my experience with
Phyllis, it is a difficult question to answer.
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n178. The District of Columbia has a population of 543,000. See supra, note
158.
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As Phyllis' case demonstrates, children right's advocates, in their fight
to protect young children from injury and death, too often fail to consider
the dynamics of spousal abuse. However, domestic violence activists, desperate
to bring the problem of woman abuse into public awareness
and engender concern, have felt compelled to insist that all battered women
are completely innocent victims. They have resisted recognizing
that some victims belong to families where each member relates to one another
through violence and threats of violence. I have repeatedly had
experiences where a battered woman is seated in my office, telling me in detail
about her husband's brutal assaults and her terror when he
threatened to kill her. When her child gets too noisy playing in the waiting
room outside, she pokes her head out of my door and yells, "If you
don't quiet down, I'm going to kill you!" On some occasions I have seen
a client hit her child or twist his arm, in a way that in my view exceeded
acceptable disciplinary action. These moments are chilling.
It is time for domestic violence and children's rights advocates to take a
more honest look at the relationship between woman abuse and child
abuse, and to come up with more sophisticated solutions than automatic removal.
These groups need to share their different areas of expertise
so that everyone can do a better job of reducing violence in the family, in
all its forms. n179
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n179. As an example of the type of information that should be shared and discussed
in reformulating advocacy positions, it is worth noting that
even in the worst cases, in which adult victims are also committing acts of
violence against the children, studies indicate that such abuse
typically decreases sharply when the main perpetrator of adult-on-adult violence
is removed from the household. See Lenore E. Walker, The
Battered Woman Syndrome 60-61 (1984) (eight times as many women report using
physical discipline on their children while with the batterer
than when living alone or in a non-abusive relationship); Jean Giles-Sims, A
Longitudinal Study of Battered Children of Battered Wives, 34 Fam.
Rel. 205, 208, 210 (1985) (noting that child abuse by both mothers and fathers
decreased sharply when mothers stopped living with abusive
men).
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A handful of jurisdictions have brought domestic violence advocates and child
welfare workers together to create long-term strategies to
empower women to protect their children. Specialists in both fields exchange
information, provide cross-training, and develop protocols for case
handling and service provision. n180 In some places, in-house domestic violence
experts are placed at each child protective service office, to
provide ongoing training and consultation. n181 Child advocates provide services
to the non-violent parent that are not contingent on the filing
of failure to protect charges. Domestic violence advocates incorporate services
for abused children into their programs, recognizing that a child
may have needs independent of those of the non-violent parent. n182 Where these
multi-faceted services are provided on a long-term,
continuous basis, there appears to be a reduction of out-of-home placements
for abused children whose mothers have also been abused. n183
Such programs are beginning to build the bridges needed to protect and support
women and their children.
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n180. See Aron & Olson, supra note 140.
n181. See id. at 52-61, 79-80 (describing programs in Massachusetts and Oregon);
Kevin Concannon, "Other Maine:" The Way Life Shouldn't Be,
Bangor Daily News, Oct. 23, 1997 (describing program in Maine).
n182. See Aron & Olson, supra note 140, at 131-33.
n183. See Aron & Olson, supra note 140, at 67-68 (describing coordinated
approach used in parts of Massachusetts, where "the out-of-home
placement rate was less than the statewide rate in the two area offices that
piloted the Domestic Violence Teams.") (citation omitted).
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Another source of hope is this: When survivors learn about the intergenerational
effects of domestic violence, they frequently react with a
sense of epiphany about what has happened in their own lives and what may now
be happening to their children. They often decide to seek
counseling both for themselves and their children, to stop the injury inflicted
by intimate abuse once and for all. n184 Advocacy groups would
do well to identify ways to encourage and extend this impulse because of its
potential to improve the lives of all of those victimized by domestic
abuse.
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n184. This conclusion is based on my 15 years of experience working with victims
of domestic violence.
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The creation of an integrated court raises a fundamental and related policy
concern that the court may become overly systematized. n185
Although integration and coordination can maximize battered women's access to
services, it also can reduce their ability to decline such
services if they wish to do so. For example, a woman who enters a comprehensive
Intake Center seeking only a civil protection order is likely to
also be automatically routed to a prosecution advocate to initiate criminal
charges without being asked whether she wishes to do so. As
discussed in Part III.B, supra, a battered woman may have many reasons to decline
participation in a criminal case, but the coordinated intake
process may push her into that arena without analysis of her personal concerns.
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n185. A third major policy concern, centered on the neutrality of judges,
is discussed in Part IV, infra.
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The more systematized a domestic violence court becomes, the more likely it
is that a shift will occur away from woman-centered advocacy, in
which each battered woman works with an advocate to define the assistance she
needs, n186 and toward service-defined advocacy, where
advocates focus on providing available services regardless of whether they fit
into a particular woman's risk analysis or safety plan. n187 As in
the domestic violence/child abuse and neglect context, it is crucial that expansion
of the options available in intimate abuse cases occurs within
a broader context of responsiveness to the particular needs of individual victims.
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n186. See Jill Davies et al., Safety Planning with Battered Women 3 (1998) (defining the term "woman-defined advocacy").
n187. See id. at 6 (defining the term "service-defined advocacy").
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V.Failures of Neutrality: The Hostility of Judges and Court Personnel
The problems caused by ineffective or overzealous prosecutorial policies and
the information-sharing failures of the conventional courts are not
the only systemic obstacles victims of domestic violence must surmount. In addition,
intimate abuse complainants must face a deeply-ingrained
hostility often exhibited by court clerks and judges.
A. Explanations for Judicial and Clerical Hostility toward Battered Women
Most judges come to the bench with little understanding of the social and psychological
dynamics of domestic violence and, instead, bring with
them a lifetime of exposure to the myths that have long shaped the public's
attitude toward the problem. The most persistent of these myths is
the belief that battered women could leave their relationships if they simply
chose to do so. But this belief ignores the real-life obstacles facing
women who wish to end their relationships. n188 These may include fear of retaliation;
n189 lack of economic resources; n190 concern for
children; emotional attachment to the perpetrator; n191 perceptions of the availability
of social support; n192 and religious and culturally-based
values and norms. n193 In addition, this belief ignores the fact that many women
make numerous unsuccessful attempts to leave before they
actually are able to do so, n194 and are punished with a more severe beating
or even homicide. n195
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n188. This belief further assumes that leaving is the sole acceptable option
for battered women, ignoring individual women's agency in making
decisions about their own lives, as well as the religious and cultural norms
that contribute to such decisions.
n189. See Part III.B, supra.
n190. See supra text accompanying note 43.
n191. See, e.g., Herb Goldberg, The Dynamics of Rage Between the Sexes in
a Bonded Relationship, in Clinical Approaches to Family Violence 59,
60-66 (James C. Hansen & Laurence R. Barnhill eds., 1982).
n192. See supra text accompanying notes 94-96.
n193. See supra text accompanying notes 74-81. For example, cultural norms
may pressure women to remain in and attempt to preserve a
marriage, despite physical abuse; they may pressure her to avoid seeking assistance
from those outside the minority community. See also Nilda
Rimonte, A Question of Culture: Cultural Approval of Violence Against Women
in the Pacific-Asian Community and the Cultural Defense, 43 Stan.
L. Rev 1311, 1319-20 (1991); Richard J. Gelles & Claire P. Cornell, International
Perspectives on Family Violence (1983); David Levinson, Family
Violence in Cross-Cultural Perspective 52-66 (1980).
n194. A study of more than 6,000 women in 50 different shelters showed that,
on average, the women had made five prior help-seeking
attempts before successfully leaving. See Edward W. Gondolf, Battered Women
as Survivors 29 (1988).
n195. See Mahoney, supra note 41, at 65-71; Anna Jones, Next Time She'll Be
Dead: Battering and How to Stop It (1994); see generally E.A.
Stark & A. Flitcraft, Violence Among Intimates: An Epidemiological Review,
in Handbook of Family Violence (V.B. Van Hasselt et al. eds., 1988).
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Lack of knowledge about this basic aspect of domestic violence causes many
judges and clerks to become frustrated with petitioners whom
they perceive as "refusing" to leave the abusive relationship. Operating
under this erroneous perception, they find the victim's behavior
enormously frustrating. n196 Clerks across the country complain bitterly about
domestic violence cases, claiming that they require too much
work and that too often the victims drop their suits anyway. n197 This view
results in clerks regularly refusing to provide assistance to
petitioners and often actively discouraging them from filing for civil protection
orders. n198 Some clerks refuse to tell battered women about the
availability of such orders; others refuse to assist victims in completing the
necessary forms or refuse to make the forms available. n199 Others
will inform a petitioner (incorrectly) that she can only get one protection
order in a lifetime, "so she had better be sure this [is] the time she
really needs it." n200 Some clerks arrogate to themselves the right to
screen cases to determine which will be presented to a judge. n201
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n196. The following discussion of judicial and clerical attitudes is based
in large part on the findings of gender bias task force reports published
during the period from the late 1980s to the mid-1990s. These reports typically
discuss incidents and behavior patterns observed during the
preceding five to 10 years. As a result, it is possible that some improvements
have been implemented since the reports were issued.
n197. See Missouri Gender Bias Task Force Report, supra note 170, at 502-03.
n198. See Kinports & Fischer, supra note 98, at 172-73 (stating that 56%
of respondents reported such behavior in national survey of domestic
violence service providers). See also Minnesota Supreme Court Task Force for
Gender Fairness in the Courts: Final Report, 15 Wm. Mitch. L.
Rev. 871, 877 (1989) [hereinafter Minnesota Gender Bias Task Force Report];
Illinois Task Force on Gender Bias in the Courts: Executive
Summary with Status of Recommendations 11 (1990) [hereinafter Illinois Gender
Bias Task Force Report].
n199. See Gender Bias in the Courts: Report of The Special Joint Committee
on Gender Bias in the Courts 12 (1989) [hereinafter Maryland
Gender Bias Task Force Report]; Illinois Gender Bias Task Force Report, supra
note 198, at 11. Such behavior occurs even in jurisdictions where
clerical assistance is mandated by statute. See Illinois Gender Bias Task Force
Report, supra note 198, at 11.
n200. Report on Gender and Justice, 16 J. Contemp. L. 135, 211 (1990). The
hostility of court clerical workers has become legendary in the
domestic violence advocacy community. As one victim service provider from a
rural southern community put it, "Court personnel will avoid
helping [battered] women in any way they can." Kinports & Fischer,
supra note 98, at 173.
n201. See Minnesota Gender Bias Task Force, supra note 198, at 877.
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Judges similarly mistreat domestic violence victims. When cases are brought
by women who have dropped charges on previous occasions,
judges have made such comments as: ""oh, it's you again,' or "how
long are you going to stay this time,' or "you want to go back and get
beat
up again.'" n202 Others have gone so far as to threaten victims with sanctions
for repeated use of the court system. n203 A particularly
egregious example occurred in North Dakota, where a judge is reported to have
told a domestic violence petitioner, "If you go back [to the
perpetrator] one more time, I'll hit you myself." n204
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n202. Maryland Gender Bias Task Force Report, supra note 199 at 8.
n203. See id.
n204. North Dakota Commission on Gender Fairness in the Courts, A Difference
in Perceptions: The Final Report of the North Dakota Commission
on Gender Fairness in the Courts, 72 N. Dak. L. Rev. 1113, 1208 (1996).
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In addition to their failure to understand the complexities of leaving abusive
relationships, n205 untrained court personnel and judges can and do
misinterpret victim behavior that is symptomatic of the psychological trauma
induced by extended abuse. Survivors of prolonged or severe
domestic violence often exhibit some symptoms or meet the full diagnostic criteria
for post-traumatic stress disorder (PTSD). This diagnosis,
first constructed to explain the long-term psychological impact of traumatic
combat on war veterans, n206 produces three major categories of
symptoms: "hyperarousal" (being in a constant state of alertness for
and expectation of danger); "intrusion" (reliving the violent experience
as if
it were continually recurring in the present, through flashbacks and nightmares);
and "dissociation" (a numbing response that includes repressing
memories of violent incidents). n207
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n205. While much of judicial hostility stems from a failure to understand
domestic violence issues, some of it may occur because the judge
himself is a batterer. In 1995, a New York judge was tried for assaulting his
girlfriend. The girlfriend called 911 twice, saying, "I have a maniac
over here attacking me... I want to keep this quiet because he's a judge."
Daniel Wise, Bronx Judge Is Acquitted After Assault Bench Trial,
N.Y.L.J., Feb. 17, 1995, at 1, 8. Although the girlfriend did not wish to press
charges, the government proceeded and subpoenaed her to
testify. Two police officers testified that when they arrived upon the scene,
they looked into the window of the ground floor apartment and saw
a man punching a half-naked woman in the head and chest. Two assistant District
Attorneys testified that they saw the girlfriend in the
complaint room with a black eye and bruises. She testified that the judge had
not hit her and that her facial swelling was caused by
menopause. She stated that her only injury was a split lip, which was self-inflicted
when she lost her balance and fell into a door. The judge
who conducted the bench trial ruled without opinion and found his colleague
not guilty. See id.
n206. See Judith L. Herman, Trauma and Recovery: The Aftermath of Violence
- From Domestic Abuse to Political Terror 27 (1992). Poet and
historian Robert Graves describes how, as a civilian, he continued to react
as though he were again in the trenches of World War I:
I was still mentally and nervously organized for War. Shells used to come bursting
on my bed at midnight, even though [my wife] shared it with
me; strangers in the daytime would assume the faces of friends who had been
killed. When strong enough to climb the hill behind Harlech and
visit my favorite country, I could not help seeing it as a prospective battlefield.
Id. at 35 (quoting Robert Graves, Goodbye to All That 257 (1929)).
n207. Id. at 35-47. Herman uses the term "constriction" rather than
"dissociation." I chose the latter because it may be somewhat more
familiar
to lay readers.
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These symptoms can profoundly affect the way a battered woman appears in court
and, in turn, how she is perceived by a judge. Dissociation
may cause many survivors to testify about emotionally charged incidents with
an entirely flat affect, or to be unable to remember dates or
details of violent incidents. n208 Hyperarousal can cause a victim to seem highly
paranoid or subject to unexpected outbursts of rage in
response to relatively minor incidents. n209 The psychological phenomenon of
intrusion may cause a witness to have vivid flashbacks on the
witness stand that interfere with her ability to testify. n210 But these explanations
of battered women's behavior are not intuitively obvious,
and because they differ greatly from the behavior and demeanor that a judge
encounters in his normal experience, they often are incorrectly
interpreted as indications of her lack of credibility. As former prosecutor
Cheryl Hanna puts it, in court, "batterers can appear charming,
respectful, and persuasive; by contrast, abused women can appear hysterical,
vindictive, or prone to exaggeration." n211
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n208. See Mary Ann Dutton, Understanding Women's Responses to Domestic Violence:
A Redefinition of Battered Woman Syndrome, Hofstra L.
Rev. 1191, 1221 (1993); see. Herman, supra note 206, at 45.
n209. See Herman, supra note 206, at 120.
n210. Recently, one of my clinic's clients was describing an incident in which
her husband's assault brought on a severe asthma attack, for
which she required hospitalization. As she testified about the incident at trial,
she began to have trouble breathing. Within moments she was
hyperventilating; the trial had to be suspended while an ambulance took her
from the courtroom to the hospital.
n211. Hanna, supra note 10, at 1878. For an explanation of why battered women
may appear this way in court, see supra text accompanying
note 207.
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This can lead judges to identify with the batterer, distance themselves from
the victim, n212 and apply artificially heightened standards of
proof. n213 A judge may refuse to issue civil protection orders when documentary
or other physical evidence is absent; n214 when unbiased
eyewitnesses are not available; n215 when the only witnesses are the parties
and, therefore, a credibility determination is required; n216 or
when the petitioner has failed to follow through with a protection order case
on a prior occasion. n217 These kinds of standards have no basis
in law and are not applied in other family law cases.
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n212. See Hanna, supra note 10, at 1878.
n213. See Kinports & Fischer, supra note 98, at 200-05.
n214. See Kinports & Fischer, supra note 98, at 200-01; Conn. Task Force,
Gender, Justice, and the Court 103-104 (1991) [hereinafter
Connecticut Gender Bias Task Force Report] (reporting that 50% of Connecticut
judges require evidence of physical injury before issuing a
protection order and describing incident in which judge observed petitioner's
injuries, told her he had received worse bruises playing golf, and
denied her petition); Maryland Gender Bias Task Force Report, supra note 199,
at 4 (reporting an instance in which judge told petitioner to "go
back and get beaten up and have bruises" in order to get court protection).
The Minnesota Task Force for Gender Fairness in the Courts
reported an incident in which a judge told a petitioner to provoke a more serious
incident in order to support a protection order. When the
petitioner said, "I guess I need a knife in my back or at least to be bleeding
profusely from the head and shoulders to get [a protection order],"
the judge responded, "That's just about it." Minnesota Gender Bias
Task Force Report, supra note 198, at 875.
n215. See Kinports & Fischer, supra note 98, at 201-02.
n216. See id. at 202.
n217. See id.
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Judges and court personnel, like many laypeople, also frequently underestimate
the seriousness and potential danger inherent in family abuse
cases. A National Institute of Justice survey found that many judges report
the belief that domestic violence consists of "verbal harassment, or
a rare shove" and approach the issue as a ""relationship problem'
amenable to marital counseling." n218 Virtually every study of gender bias
in
the courts corroborates this finding. A widespread attitude exists that cases
involving large financial interests and crimes perpetrated on
non-intimates are the "real" cases, while domestic violence is an
inferior assignment or even a hazing ritual for junior judges. n219 Too many
judges call these cases "unimportant work" n220 and make it known
that they do not want them in their courtrooms. n221 They view criminal
prosecutions of intimate abuse as "family matters" that do not belong
in criminal court. n222
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n218. See Finn & Colson, supra note 44, at 4. See also Kinports &
Fischer, supra note 98, at 207-10 (reporting results of national survey
indicating that judges do not take civil protection order cases seriously and
often treat petitioners in insensitive and disrespectful ways).
n219. See Lynne Hecht Schafran, There's No Accounting for Judges, 58 Alb. L. Rev. 1063, 1077-78 (1995).
n220. Maryland Gender Bias Task Force Report, supra note 199, at 4.
n221. See Gender and Justice in the Courts: A Report to the Supreme Court
of Georgia by the Commission on Gender Bias in the Judicial System,
8 Ga. St. U .L. Rev. 539, 571 (1992) [hereinafter Georgia Gender Bias Task Force
Report].
n222. See, e.g., id. at 571; Equal Justice for Women and Men: Kentucky Task
Force on Gender Fairness in the Courts 29 (1992) [hereinafter
Kentucky Gender Bias Task Force Report]; Maryland Gender Bias Task Force Report,
supra note 199, at 4; New Jersey Supreme Court Task
Force on Women in the Courts: Report of the First Year 20-21 (1984) [hereinafter
New Jersey Gender Bias Task Force Report].
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A few examples illustrate the problem. In 1994, Kenneth Peacock found his
wife in bed with another man. Several hours later, he shot her in the
head with a hunting rifle. n223 When Peacock pleaded guilty to voluntary manslaughter,
the Maryland judge who presided over his case
commented: "The most difficult thing that a judge is called upon to do
... is sentencing noncriminals as criminals." n224 He imposed an
eighteen-month sentence, to be served on a work release program which allowed
Peacock to reenter the community within two weeks of
sentencing. n225 In another case, a Florida judge took testimony that a man
had doused his wife with lighter fluid and set her on fire. The judge
burst into song in open court, crooning, "You light up my wife," to
the tune of "You Light Up My Life." n226 Similarly, a New York judge
began a
hearing with the comment, "Well, well, well, we had a little domestic squabble,
did we? Naughty, naughty. Let's kiss and make up and get out of
my court." n227 These are just a few, particularly egregious examples culled
from the studies and reports cited in this article. Although they
may be somewhat atypical in terms of the extent of the insensitivity exhibited,
they show how deeply ingrained the problem is.
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n223. See Karl Vick, Maryland Judge Taking Heat in Cuckolded Killer Case, Wash. Post, Oct. 30, 1994, at A1, A28.
n224. Schafran, supra, note 219, at 1063 (citing Reporter's Official Transcript
of Proceedings (Sentencing) at 13-14, State v. Peacock (Md. Cir.
Ct. Oct. 17, 1994) (No. 94-CR-0943)). The judge added, "I seriously wonder
how many married men, married five years or four years would have
the strength to walk away, but without inflicting some corporal punishment....
I shudder to think what I would do." Id. at 1064.
n225. See id. at 1063. The judge further ordered Peacock to perform 50 hours
of community service in a domestic violence program. See id. As
Schafran points out:
Sentencing in domestic violence and sexual assault cases often includes highly
misguided requirements that defendants work in battered
women's shelters or rape crisis centers, which are the least appropriate placements
for these types of offenders. Victim empathy does not come
from proximity to victims but from long, intensive, painful treatment in specialized
batterers' and sex offenders' programs.
Id. at 1064.
n226. Supreme Court of the State of Florida, Report of the Florida Supreme
Court Gender Bias Study Commission 121 (1990) (citing Debbie
Boone, You Light Up My Life, on Best of Debbie Boone (Curb Records 1990)).
n227. N.Y. Gender Bias Task Force Report, supra note 170, at 36.
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Judges who do not understand the seriousness of family abuse often issue civil
protection orders that fail to include the comprehensive relief
necessary to stop future violence. Forty-three percent of domestic violence
service providers across the country report that judges are
unwilling to consider awarding remedies clearly authorized by statute, especially
custody, child support, and other forms of financial relief. n228
Similarly, gender bias task force reports indicate that judges impose lighter
sentences on defendants convicted of domestic violence crimes than
those involving violence against strangers. n229
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n228. See Kinports & Fischer, supra note 98, at 205-07; see also D.C.
Gender Bias Task Force Report, supra note 44, at 148 (1992) (reporting
child support awarded in only 2.6% of civil protection order cases involving
a custody order).
n229. See Missouri Gender Bias Task Force Report, supra note 170, at 510;
D.C. Gender Bias Task Force Report, supra note 44, at 126 (noting
that 70% of respondents reported generally shorter sentences in criminal prosecutions
where perpetrator and victim are married; 50% of
respondents report same problem in domestic violence prosecutions involving
unmarried intimates); Vermont Task Force Report on Gender Bias in
the Legal System: Introduction and Executive Summary, 15 Vt. L. Rev. 395, 428
(1990-91); Kentucky Gender Bias Task Force Report, supra
note 222, at 29-31; Illinois Gender Bias Task Force Report, supra note 198,
at 151-154; Massachusetts Gender Bias Task Force Report, supra
note 170, at 93 (64% of public defenders and district attorneys report sentences
in domestic violence cases lower than other serious crime
cases).
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Finally, many judges find it frustrating to deal with pro se litigants. Because
the vast majority of domestic violence petitioners appear without
counsel, this problem is pervasive. Examples of this problem include a California
judge who denied a petition in which a woman had stated that
the batterer hit her "upside the head," claiming that he did not understand
the allegation. n230 A Connecticut judge is reported to yell at pro se
battered women for filing their court papers incorrectly and to actually throw
the papers at them. n231
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n230. California Gender Bias Task Force Report, supra note 170, at tab 6, 20.
n231. See Connecticut Gender Bias Task Force Report, supra note 214, at 104.
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Judicial hostility toward domestic violence petitioners is particularly disturbing
given the positive impact a judge can have. Studies have shown
that judicial warnings or lectures to defendants about the inappropriateness
and seriousness of their violent behavior can improve some
defendants' future conduct. n232 And victims report that receiving official
affirmation from judges that they do not deserve to be abused helps
them gain the strength to separate from their batterers. n233
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n232. See National Institute of Justice, Non-Stranger Violence: The Criminal
Court's Response 96 (1983) [hereinafter NIJ: Non-Stranger
Violence]; U.S. Dep't of Justice, Attorney General's Task Force on Family Violence:
Final Report 36 (1984) [hereinafter AG's Final Report].
n233. See NIJ: Non-Stranger Violence, supra note 232, at 96.
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B. Judicial Education as a Force of Change
As the stories above illustrate, judges often do not understand either the psychological
dynamics of relationships involving domestic violence or
the obstacles facing battered women who seek legal protection. To remedy this
deficit, judges need to receive the education necessary to
adequately perform their jobs. n234 Education can be a highly effective tool
for reclaiming judicial neutrality. For example, after attending a
national interdisciplinary conference on domestic violence sponsored by the
State Justice Institute, Nevada District Court Judge Terrance P.
Marren disclosed that he had grown up in a family where his father abused his
mother, and that "although he once perceived that he was
dealing fairly with the abuse cases that came before him, his experience with
judicial education showed him that he had a great deal to
learn...." n235 He has since persuaded the Nevada Supreme Court to require
every judge to attend a two-day local conference on family
violence. n236
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n234. Virtually every study of court response to domestic violence has recommended
judicial training as a necessary remedy to existing
systemic problems. See, e.g., Kinports & Fischer, supra note 98, at 210-12.
n235. Schafran, supra note 219, at 1073.
n236. See id.
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In Washington, D.C., judges assigned to the new Domestic Violence Court are
required to undergo formal training on intimate abuse and accept
a long-term (one-year) assignment, to allow them to build a reservoir of experience.
Although the training opportunities have been limited, n237
the community already has witnessed substantial differences in judicial treatment
of these cases.
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n237. The training for incoming judges has been limited to one to two days.
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A telling example lies in the change in judicial response to requests for
custody and child support in civil protection order cases. As discussed in
Part II, supra, n238 rapid resolution of these issues is of extreme importance
in domestic violence cases, where perpetrators commonly use
financial leverage and threats of child kidnapping to manipulate and control
their victims.
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n238. See supra text accompanying notes 42-43.
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Prior to the Court's formation, D.C. judges awarded temporary custody in less
than half of the civil protection order cases, despite clear
statutory authorization to grant such relief. n239 They awarded child support
in only 2.6% of civil protection order cases where the parties had
a child together, and 4.9% of those cases involving a custody order, n240 although
such an award also is authorized by statute and case law.
n241 This kind of track record is typical nationwide; forty-three percent of
domestic violence service providers report that judges are unwilling
to consider awarding these kinds of remedies. n242
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n239. See D.C. Code Ann. 16-1005(c)(6)(1998); D.C. Gender Bias Task Force Report, supra note 44, at 147.
n240. See D.C. Gender Bias Task Force Report, supra note 44, at 148.
n241. See D.C. Code Ann. 16-1005(c)(10); Powell v. Powell, 547 A.2d 973, 974-75 (D.C. App. 1988).
n242. See Kinports & Fischer, supra note 98, at 205.
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In the new Court, however, judges now routinely award custody based on the
best interest of the child standard as well as child support based
on D.C.'s financial guidelines. They even occasionally take the time to talk
to perpetrators about the harmful impact that witnessing
adult-on-adult abuse can have on children and the intergenerational nature of
domestic violence. n243
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n243. Because the D.C. Domestic Violence Court was implemented so recently,
only the author's observational data currently exist to support
this point. More systematic, quantitative data should be forthcoming over the
next two years based on a comprehensive study being launched
by the National Center for State Courts.
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C. Maintaining Judicial Neutrality
In those few jurisdictions that have implemented domestic violence courts, the
defense bar consistently has complained that judicial education
about family abuse and extended tenure on a calendar devoted to such cases creates
a pro-victim, anti-defense bias. n244 Although this
criticism is based solely on anecdotal evidence, most litigants and attorneys
agree that these courts create a substantial change in judicial
attitudes toward domestic violence cases. n245 Given the extensive history of
anti-victim bias among judges, n246 however, it is difficult to
believe that a newly-organized court could have an impact so fundamental as
to not only level the playing field, but to regrade it in the
opposite direction - against perpetrators.
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n244. See Opposition to Government's Motion to Transfer and Motion to Dismiss,
filed in United States v. Castro, Case No. M-3987-97 (D.C.
Super. Ct. 1997) at 6 [hereinafter Opposition] (on file with author); Response
of the Public Defender for the Eleventh Judicial Circuit to the
Proposed Local Rule, filed in In Re: Local Rule to Establish a Domestic Violence
Court in the Eleventh Judicial Circuit, Case No. 84,051 (Fla. 1994)
at 10 (on file with author). I have heard this issue raised by numerous defense
attorneys in Washington, D.C., both from the Public Defender
Service and the private bar.
Another constitutional challenge raised by the defense bar is that a specialized
domestic violence court involves the discriminatory exercise of
prosecutorial discretion against male defendants. See Opposition, supra, at
5-9. The trial court found no constitutional violation; the issue is still
pending on appeal. Citing statistics indicating that more than 75% of those
accused of domestic violence crimes are male, the District of
Columbia Public Defender Service argues that the prosecution has violated defendants'
equal protection rights. See id. at 7-8.
This issue was addressed 20 years ago by the Supreme Court, in Personnel Administrator
of Massachusetts v. Feeney. 442 U.S. 256 (1979).
There, a woman filed an equal protection challenge to a Massachusetts statute
creating a selection preference for all veterans who applied for
state civil service positions. See id. at 259. Although the law was gender-neutral
on its face, over 98% of veterans in the state were male at
that time. Accordingly, the law operated overwhelmingly to the advantage of
male applicants. See id. at 270. The Court found no constitutional
violation in this differential, adverse impact on women. It held that when a
statutory classification is gender-neutral on its face, no equal
protection violation occurs unless the plaintiff is able to demonstrate that
"a gender-based discriminatory purpose has, at least in some
measure, shaped [the classification]." Id. at 276.
In the District of Columbia, no evidence of an anti-male discriminatory purpose
exists in the U.S. Attorney's Office policy of aggressive
prosecution in domestic violence cases. Indeed, the indictment of men in 75%
of domestic violence case is hardly surprising, given the
overwhelming evidence that over 90% of domestic violence victims are women.
See Russell P. Dobash et al., The Myth of Sexual Symmetry in
Marital Violence, 39 Soc. Probs. 71, 75 (1992) (refuting the claim that violence
against husbands is about as prevalent as violence against
wives). The predominance of female complainants and male perpetrators does not
reflect discriminatory purpose, but simply a fact repeatedly
demonstrated by social science researchers: the vast majority of family abuse
perpetrators are men.
This case is therefore distinguishable from the selective prosecution claim
pursued in United States v. Armstrong, 517 U.S. 456 (1996). In
Armstrong, defense attorneys requested discovery in support of a charge that
the federal government was selectively prosecuting blacks in
cases involving distribution of crack cocaine. Although the Supreme Court held
that defendants had failed to meet the requisite threshold to
obtain discovery, in dissent Justice Stevens expressed concern that:
It is undisputed that the brunt of the elevated federal penalties falls heavily
on blacks. While 65% of the persons who have used crack are
white, in 1993 they represented only four percent of the federal offenders convicted
of trafficking in crack. Eighty-eight percent of such
defendants were black.
Id. at 479-80 (Stevens, J., dissenting). Here the evidence is quite different:
the vast majority of those committing and being prosecuted for
crimes of intimate abuse are men.
n245. See Skolnick, supra note 61.
n246. See supra text accompanying notes 191-222.
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The existence of a judicial bias created by domestic violence training can
be empirically detected, and initial data from the District of Columbia
experiment indicate that no such bias exists. Since the inception of the new
domestic violence court, the percentage of civil protection orders
issued in contested cases has actually decreased, from 86% in 1989 to 78.6%
today. n247 If the newly-trained judges have developed a bias in
favor of victims, why has the overall victim success rate decreased? n248
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n247. See D.C. Gender Bias Task Force Report, supra note 44, at 145 (noting
that orders were granted in 86% of contested cases in 1989);
Roddy Memoranda, supra note 159 (noting that orders were granted in 79.1% of
contested cases in the first six months of the new Domestic
Violence Court).
n248. It should be noted that one possible explanation for the decrease in
victim success rates is the overall increase in the number of civil
protection order cases filed since the court began operation.
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Similarly, judges' extended exposure to and experience with a domestic violence
calendar does not appear to erode their impartiality. The
percentage of civil protection order trials in which domestic violence judges
grant the petitioner's request for relief remained fairly constant
during the first six months of the D.C. Domestic Violence Court's operation,
with cyclical fluctuations between seventy-one percent and
eighty-three percent. n249 No trend of increased sympathy for alleged victims
is apparent. The same is true for non-jury trials in criminal
misdemeanor prosecutions, where the government success rates fluctuated between
sixty-nine percent and seventy-six percent. n250
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n249. See Roddy Memoranda, supra note 159. The monthly petitioner success
rates for 1997 are as follows: Jan.: 83%; Feb.: 81%; Mar.: 71%;
Apr.: 81%; May: 75%; and June: 81%. See id.
n250. See id. The government success rate during the first six months of 1997
is as follows: Jan.: 74%; Feb.: 74%; Mar.: N/A; Apr.: N/A; May:
69%; and June: 76%. See id.
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Of course, any judicial bias that is created - or simply perceived to exist
- must be taken seriously. Although some victim advocates are
perfectly comfortable with the idea of an anti-defense bias, it is in fact an
issue that should be of equal concern to victims as it is to
perpetrators.
Recent social science research demonstrates that defendant compliance with
court orders depends more on the "procedural justice" with which
the sanction is delivered than on the certainty and severity of the sanction
itself. Unlike deterrence theory, which dictates that people obey
the law when the benefits of compliance outweigh the costs, the procedural justice
model recognizes that in many instances compliance occurs
out of a sense of duty or morality, rather than self-interest. The obligation
to comply arises when the courts imposing orders are viewed as
moral and legitimate - when they treat people fairly. The perceived fairness
of court proceedings has a direct impact on the likelihood that a
person will comply with the court's ultimate decision - regardless of whether
he considers that decision to be right or wrong. n251
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n251. See Tom R. Tyler, Why People Obey the Law 108 (1990).
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If people feel unfairly treated by a court, they will perceive it as less
legitimate and as a consequence obey its orders less frequently. n252 A
crucial element of this body of research, according to one of its pioneers,
Tom Tyler, is that:
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n252. See id.
Procedure reflects the diverse values of distributive justice found in such
a pluralistic society as the United States. Because there is no single,
commonly accepted set of moral values against which to judge the fairness of
outcomes or policies, such evaluations are difficult to make.
People can however agree on the fairness of procedures for decision making.
[Individuals'] evaluations of authorities, institutions, and policies
therefore focus on the procedures by which they function, rather than on evaluations
of their decisions or policies. If the consensus that binds
together society is in fact a procedural consensus, then authorities need to
be especially concerned with maintaining fair procedures for making
allocations and resolving disputes.
Id. at 109 (citations omitted).
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People want to be treated fairly by authorities independent of any effect on
favorable outcomes. Adhering to fair procedures will cement
persons' ties to the social order because it treats them with dignity and worth
and certifies their full and valued membership in the group. Being
treated fairly by authorities, even while being sanctioned by them, influences
both a person's view of the legitimacy of group authority and
ultimately that person's obedience to group norms. n253
Researchers have identified several building blocks of procedural justice. One
is the extent to which a person has the opportunity to state his
case and be heard. n254 Another is the impartiality of the relevant legal authority.
n255 Finally, respectful, ethical treatment by legal
authorities is "directly related to perceptions that authorities are moral,
legitimate, and [ ] deserving of compliance." n256
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n253. Id. at 165.
n254. See id. at 136, 137-38, 163. In fact, even giving individuals the opportunity
to speak after a decision has been made (and therefore after
it can have any direct influence on outcome) has been proven to be related to
perceptions of fair judgments. See Allen E. Lind et al., Voice,
Control, and Procedural Justice: Instrumental and Noninstrumental Concerns in
Fairness Judgments, 59 J. Personality & Soc. Psychol. 952
(1990).
The importance of this concept has long been recognized by authorities. An Egyptian judge's manual written in 2300-2150 B.C. advises:
If you are a man who leads
Listen calmly to the speech of one who pleads;
Don't stop him from purging his body
Of that which he planned to tell.
A man in distress wants to pour out his heart
More than that his case be won.
About him who stops a plea
One asks "Why does he reject it?"
Not all one pleads for can be granted,
But a good hearing soothes the heart.
Tyler, supra note 251, at 148 (quoting J.L. Mashaw, Due Process in the Administrative
State (1981)).
n255. See Raymond Paternoster et al., Do Fair Procedures Matter? The Effect
of Procedural Justice on Spouse Assault, 31 Law & Soc'y Rev.
163, 168 (1997).
n256. Id. at 168. Other identified components of procedural justice include
consistency in decision-making and accuracy and correctability of
procedures. See id. at 167-68.
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The provision of procedural justice has a demonstrable impact on compliance
in the domestic violence arena. In a recent study, researchers
considered the effect of a batterer's perception of police fairness on intimate
abuse recidivism rates. n257 The pre-existing literature on this
subject had focused exclusively on the impact of different police-imposed sanctions
(warning, mediation, and arrest) on recidivism; the results
were equivocal.
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n257. See id. at 166.
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The principal investigators in the original police arrest experiment concluded
that their study "strongly suggested that police should use arrest in
domestic violence cases," because arrest was most highly correlated with
low recidivism rates. n258 But when six replication studies were
conducted in different jurisdictions, the findings ranged from arrest having
no effect, to a deterrent effect, to an escalation effect. n259 And
even within the same jurisdiction, the effect of arrest often varied based on
the length of detention and certain offender characteristics, such
as employment and other ties to the community. n260
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n258. Lawrence W. Sherman & Richard A. Berk, The Minneapolis Domestic Violence Experiment 6 (1984).
n259. See Paternoster et al., supra note 255, at 164.
n260. See id. at 165.
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What these studies ignored was the possibility that the procedures employed
by the police might have affected the results. In 1997,
researchers revisited the data from all seven studies to determine whether "the
manner in which sanctions are imposed has an independent and
more powerful effect on spouse assault than the sanction outcome itself."
n261 They found that perceptions of procedural justice have a
statistically significant impact. The frequency of recidivist domestic abuse
was lower for those perpetrators given only a warning than for those
who were arrested, in cases where the arrested offenders perceived that they
had been treated in a procedurally unfair manner. n262 The
frequency of subsequent abuse was far lower, however, when arrestees believed
they had been treated fairly. n263
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n261. Id. (emphasis in original).
n262. See id. at 184.
n263. See id.
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This study (and others like it) has substantial implications for judicial
proceedings. Issuance of a civil protection order means little if the batterer
views the order as illegitimate and therefore feels free to ignore it. By ensuring
that all parties are provided with procedural justice, judges can
influence responsiveness to their orders. Judges who recognize and respond to
people's normative concerns can exercise their authority more
effectively; their rules and decisions are more likely to be voluntarily accepted
and complied with. As a result, judicial training must be targeted
toward the eradication of existing anti-victim biases within a larger framework
of promoting procedural justice.
VI. Conclusion
The impact of impressive legislative innovations in the domestic violence field
have been thwarted by a relatively stagnant justice system. To
ensure that victims obtain the full relief to which they are now entitled, prosecutors,
judges, and the court system must implement extensive
reforms.
Such reforms are beginning to emerge in the criminal justice field, where
in an increasing number of jurisdictions police are operating under
mandatory arrest laws and prosecutors are adopting no-drop prosecution policies.
But as these officials move toward the laudatory goal of
treating domestic violence with the seriousness paid to stranger crimes, it
is time to re-examine whether precise parity is the appropriate goal.
Victims of intimate violence have a particularly strong interest in the way
their criminal prosecutions are handled; perhaps they should be given
a stronger voice in and control over the process than exists in the context
of stranger assaults.
The court system also must respond to the special needs of families afflicted
by domestic abuse. Long-standing failures in information-sharing
and coordination must be remedied so that victims may access the wide range
of complementary relief necessary to accomplish a safe
termination of the battering relationship. Fully integrated domestic violence
courts like the one recently created in Washington, D.C. provide an
illustration of the substantial potential inherent in this approach.
But these integrated courts can create problems of their own, including an
increased likelihood that battered women will be deterred from
coming forward out of fear that failure to protect charges will be filed against
them. Domestic violence and children's rights groups need to
begin an honest dialogue about this problem and implement creative solutions
that maximize the remedial resources available to both women and
children who have suffered physical and psychological harm.
Finally, judicial failure to understand either the psychological dynamics
of relationships involving domestic violence or the obstacles facing
battered women seeking legal protection has led to a pronounced anti-victim
bias in the courts. Judicial education about the realities of intimate
abuse, along with increased exposure to the issue through extended assignments
to a domestic violence calendar, can begin to alleviate this
problem. But such judicial training programs must be developed within a larger
context of concern for the delivery of procedural justice to both
victims and perpetrators to maximize the likelihood of perpetrator compliance
with court directives.
Prosecutors, judges, and the courts often serve as the last resort of victims
of domestic violence. If the legislative improvements of the past
thirty years are to have real impact, these components of the justice system
must undergo substantial self-reflection and corresponding reform.