New Judicial Institutions for Addressing Domestic Violence

face of a prisoner

In response to sensational public claims about domestic violence against women, judicial officials have largely supported a new regime of domestic-violence emergency law. Common components of this regime include warrantless arrest, mandatory arrest, gender profiling men to lessen arrests of women, no-drop prosecution policies, uniformly issuing as a condition of bail restraining orders that evict persons from their homes and deprive them of custody of their children, and also making such restraining orders easily available through an ex parte civil petitions filed on pre-printed forms. With respect to domestic violence, judicial officials’ primary judicial goals are victim safety and offender accountability.^ To fulfill those perceived judicial responsibilities, state judicial systems have favored concentrating judicial power over domestic violence in courts claiming to have domestic-violence expertise. These institutional changes make domestic-violence emergency law more difficult to monitor and further entrench anti-men gender bias. More radical judicial innovation is needed to provide equal justice under law for domestic violence.

In judging domestic violence, judges have understood their jobs to be ensuring victim safety and promoting offender accountability. Contentious factual disputes about who are victims of domestic violence have been no more presented to judges than they have been presented to the public. Moreover, a domestic-violence case comes to a judge with gender-profiling-based categorization of victim and defendant already established as a parameter of the case. Through tendentious claims about a “cycle of violence” and sensational media reporting of particular domestic-violence tragedies, judges’ attention has been focused on terrible future possibilities rather than actually committed criminal acts. Judges have routinely upheld domestic-violence emergency law.^ ^ ^ Under domestic-violence emergency law, constitutional rights and due process of law are largely obliterated. Serious discussion of defendants’ legal rights and due process of law hardly exists across decades of legal scholarship about domestic violence and detailed analysis of new, specialized domestic-violence courts.^ Democratic failure in public discussion of domestic violence has narrowed the justice system’s responsibility from doing justice under law to ensuring victim safety and promoting batterer accountability.

New judicial institutions have sought to solve the problem of domestic violence as it has been publicly misunderstood. In 2004, a judge in San Joaquin County, California, indicated that domestic-violence cases make up the majority of misdemeanor cases taken to trial.^ He also noted:

I believe the court has to be in a leadership role in the issues that pertain to the criminal justice system. This {domestic violence} is one of the largest areas of criminal law we deal with. To say we are going to stand back and not get involved, it’s an outrage. We have to take a leadership role.^

That judge had served for a decade on a special domestic-violence court that handled pleadings and pre-trial matters for all domestic-violence cases in San Joaquin County. He spoke at a regional hearing of the California Attorney General’s Task Force on the Criminal Justice Response to Domestic Violence. Introduced to talk about “batterer accountability from a judicial perspective,” the judge explained:

I think in San Joaquin, the first issue of accountability starts with those principal players involved in the problem of domestic violence: the law enforcement agencies, health care practitioners, the courts, probation. We have decided among ourselves where our priorities are.

We’ve come together to determine that the biggest issue is to act in one voice. Within that one voice, we have a lot more ability to effect change. …

When I need help, I have Joelle Gomez behind me from the women’s center and district attorney’s office. And we’re much more successful.^

That judicial problem-solving approach to domestic violence is similar to that in other jurisdictions. The Chief Judge in New York State described New York State’s judicial approach to domestic violence in a 2012 law-review article entitled “Ensuring Victim Safety and Abuser Accountability: Reforms and Revisions in New York Courts’ Response to Domestic Violence.”^ The problem to be solved in practice has been fundamentally gender-biased: how to ensuring the safety of women, assumed to be domestic violence victims (“survivors“), and how to punish more harshly men, assumed to be perpetrators of domestic violence (“batterers”).^

New judicial institutions for addressing domestic violence have been constructed upon deep, anti-men gender bias. Since 1996, New York State has established forty specialized domestic-violence problem-solving courts and an additional forty-six integrated domestic-violence problem-solving courts. The Chief Judge of New York State recently described the origins of these courts:

These courts were customized to handle criminal cases involving intimate partner violence, and were instituted with the three goals of promoting victim safety, increasing defendant accountability, and encouraging better coordination among institutions in the criminal justice system already dealing with domestic violence. Leaders within the court system realized that courts could not do justice in domestic violence cases unless judges “received training from experts about the nature of domestic violence,” its effect on the victims, and how to hold abusers accountable.^

The quoted text referring to “leaders within the court system” comes from the New York State’s Lawyer’s Manual on Domestic Violence: Representing the Victim (5th ed.) That volume was issued by the Supreme Court of the State of New York, Appellate Division, First Department. The second page of the Lawyer’s Manual includes laudatory blurbs from leading New York State judges. The fourth page of the Lawyer’s Manual includes a formal disclaimer:

This text is an unofficial publication of the Appellate Division, First Department, Supreme Court of the State of New York, and does not necessarily reflect the view of either the Court or any Justice thereof.

Within the Lawyer’s Manual, the Chief Judge’s text comes from an article from a leading expert in domestic-violence law. While the Chief Judge sensibly used the term “abuser” rather than “batterer” in his law-review article, the Lawyer’s Manual article that he cited makes only a feeble effort to avoid formally gender-stereotyping domestic violence in pronoun choices. The last two sentences of that article’s introductory section make clear its substantive gender stereotyping:

The progress that has been made in the last decade is impressive. However, many barriers to safety and justice remain for battered women and their children.

The article goes on to explain:

The development of domestic violence courts signaled an enormous shift in how the justice system viewed its role in responding to domestic violence. Previously, there was a pervasive sense that courts were compromising their impartiality by learning about domestic violence and applying that knowledge to the cases before them. It took a conscious effort by the leadership of the court system to shift that paradigm and point out that courts simply could not do justice in these cases unless they received training from experts about the nature of domestic violence, its effects on adult and child victims, and the tactics abusers commonly use to manipulate the justice system. Far more emphasis was placed on holding abusers accountable. Excuses for battering such as substance abuse and anger management problems were exposed as baseless, and courts stopped sentencing abusers to programs in lieu of true criminal sanctions.

The domestic-violence expert’s suggestion that the relation between domestic violence and the problems of substance abuse and anger management is “baseless” is nonsensical.^ Nonetheless, that claim has precedent in expert domestic-violence training administered to judges.^ What then is actually the cause of domestic violence according to domestic-violence experts? This domestic-violence expert explains:

Domestic violence is, at its core, an issue of gender inequality. The batterer’s goal is to beat the equality out of his victim.

Oops, the mask of formal gender-neutrality in referring to “the batterer” and “victims” has dropped. There he is battering “his victim.” Judges presumably have been taught that the reason that a drunk woman throws a plate at her boyfriend’s head is because he is trying to “beat the equality” out of her. The domestic-violence expert continues:

Systemic gender inequities facilitate the batterer in this effort. These inequities play out in countless ways when victims seek help from the justice system. Advocates have storehouses of anecdotes, such as when victims are labeled “hysterical” or “incredible” because they allege abuse, or when police refuse to enforce orders of protection because they feel sorry for the abuser denied access to his children, or when courts allow abusers to delay paying child support or maintenance.

The domestic-violence expert then presents an astonishing perspective on gender bias:

When battered women have to fight against gender bias in the courts, they are doubly abused. Courts simply cannot do justice when they make the blind assumption that the parties in domestic violence cases come before them equal in status. Comprehensive and continuous efforts to wipe out gender bias in the justice system are a top priority.^

Gender-profiling men for arrest, prosecution, and punishment for domestic violence is abundantly clear. Without recognized domestic-violence expertise, one can readily recognize that men account for a large share of domestic-violence victims and that domestic-violence experts have argued bitterly over that obvious reality. Any fair review shows that the existence of men victims of domestic violence has been trivialized and ignored for decades. Domestic violence services for men are vastly inferior to those for women. Specialized domestic-violence courts and integrated domestic-violence courts have been built upon authoritative domestic-violence expertise. That domestic-violence expertise has neither recognized fundamental truths about domestic violence nor eliminated gender bias. Domestic-violence expertise has deeply entrenched anti-men gender bias.

Specialized domestic violence court have proliferated as a judicial solution to the problem of domestic violence. The number of such courts in the U.S. has grown from about 42 in 1999 to about 208 in 2009.^ These courts represent a technocratic approach to the democratic problem of domestic violence. Consider, for example, Los Angeles’s specialized court for civil petitions for harassment restraining orders:

The Los Angeles County Superior Court recently revised its case management system to help reduce this political incentive {to grant restraining orders}. Court administrators sensed that civil harassment orders were granted in inordinate numbers, most often by judges with general civil dockets who would see such cases only sporadically {sic}. The Court’s solution was to direct most civil harassment petitions to a single judge. The volume of petitions allowed her to develop expertise in the area, and gave her a better sense of which allegations truly merited an order. She was also chosen because her seniority allowed her greater de facto judicial independence {from media attack}. As a result, grants of petitions fell sharply, with no observable reduction in public safety.^

A dictator can solve democratic problems across a small or large field of action. But a dictator or a “specialized judge” is not a democratic, law-governed solution to a democratic problem.

Integrated domestic-violence courts expand the scope of the special judge-dictator. New York State has pioneered integrated domestic violence courts. These courts combine multiple case types – criminal, family, and matrimonial – within one court. One court thus decides criminal guilt, conditions of criminal and civil restraining orders, alimony payments, child-support payments, and child custody. Judicial action occurs under a “one family – one judge” model.^ Integrated domestic-violence courts represent a unitary, hierarchical family decision-making model with the judge in the position of pater familias. By exposing more defendant interests to a personalized justice-system bargain on any issue, integrated domestic-violence courts increase the justice-system’s bargaining power and discretion.^ They also reduce the accountability of the judicial system for systematic patterns such as anti-men bias in criminal sentencing and anti-men bias in awards of child custody. Integrated domestic-violence courts reduce an important form of accountability: public accountability for equal justice under law.^ ^ ^ ^ The problems of deference to insular claims of domestic violence expertise and lack of public accountability are most obvious in New York State and are largely unacknowledged.^ ^ ^

One can easily imagine an accountability-enhancing alternative to the “one family – one judge” model. Suppose two judges were assigned to judge collaboratively each domestic-violence case. Having two judges deciding one family’s case would demonstrate to families that problem-solving does not depend on authoritative hierarchy. Having two judges decide the case would force more meaningful, informal, private communication among judges about domestic violence cases. Two judges would be able to support each other in rejecting anti-men gender bias masquerading as domestic-violence expertise. Moreover, having two judges would lessen the personal risks that judges face in deciding domestic-violence cases. Lessening the personal risks of fair judgment is particularly important given the deep democratic failure in public discussion of domestic violence.

Specialized and integrated domestic-violence courts have been commonly grouped with problem-solving drug courts. In a resolution issued in 2000, the U.S. Conference of Chief Justices and the Conference of State Court Administrators found:

  • The public and other branches of government are looking to courts to address certain complex social issues and problems, such as recidivism, that they feel are not most effectively addressed by the traditional legal process; …
  • There are principles and methods grounded in therapeutic jurisprudence, including integration of treatment services with judicial case processing, ongoing judicial intervention, close monitoring of and immediate response to behavior, multidisciplinary involvement, and collaboration with community-based and government organizations. These principles and methods are now being employed in these newly arising courts and calendars, and they advance the application of the trial court performance standards and the public trust and confidence initiative; and
  • Well-functioning drug courts represent the best practice of these principles and methods;^

The resolution, entitled “In Support of Problem-Solving Courts,” proposed steps to advance the development of problem-solving courts. The resolution said nothing specifically about domestic violence. However, domestic-violence problem-solving courts (specialized and integrated courts) then had a prominent advocate among the Chief Justices.^ The resolution clearly provided substantive support for domestic-violence problem-solving courts that solve the problem of domestic violence as it has been publicly misunderstood. Subsequent literature on judicial innovation typically groups domestic violence and drug abuse among areas of problem-solving court activity.^

Domestic-violence problem-solving courts seek much different solutions than do problem-solving drug courts. Drug courts seek therapeutic alternatives to traditional retributive punishment for drug users. Domestic-violence courts, in contrast, seek to punish more effectively domestic-violence offenders (“enhance batterer accountability”). Drug courts coordinate rehabilitative services for the defendant drug-user. Domestic-violence courts coordinate services for the man-defendant’s woman-victim. Drug courts operate within a field of public discourse that links the punitive war on drugs to the extraordinarily high prevalence of incarceration. Domestic-violence courts operate within a discursive field of anti-men gender bias and ignorance of domestic violence policies’ contribution to mass incarceration. In practice, domestic-violence problem-solving courts have a much different orientation to doing justice than do problem-solving drug courts. Justice-system action concerning domestic-violence has been more important to the rise of mass incarceration than has been the war on drugs.

Specialized domestic-violence courts and integrated domestic-violence courts have lessened possibilities for rational public accountability and rule of law in addressing domestic violence. These courts embody the idea that domestic violence is special. But family law is not special law in ordinary life. Family law is the constitutional law of ordinary life. Moreover, domestic violence is not a new public concern. Violence within families and households has always been a matter of public action. Domestic violence currently accounts for a majority of arrests for inter-personal violence. Domestic violence law makes sense only as emergency law. Yet that emergency law is invoked more than a million times per year. Narrow invocations of emergency law in response to claims of domestic violence have largely evaded public scrutiny. The public should know truthfully the characteristics of the emergency that demands suspension of established civil rights and elimination of due process under law. Specialized domestic-violence courts narrow judicial responsibility for invoking domestic-violence emergency law. Specialized domestic-violence courts further entrench anti-men gender bias among domestic-violence experts, service providers, and others with large personal investments in domestic violence.

Specialized, domestic-violence courts are not a good, democratic response to democratic failure in public discussion of domestic violence. The public response to domestic violence has made judging domestic violence cases difficult, treacherous, and voluminous work. Domestic-violence law has developed to encompasses a wide range of acts. After an extensive public effort to encourage and streamline filing civil petitions for domestic-violence restraining orders, more than a million such petitions are filed per year in the U.S. Judicial officials evaluate those petitions ex parte, without physical evidence, without witnesses, without a fact-finding jury, and often without any information other than that the petitioner supplies on a pre-printed form. The judicial official must decide whether to issue a restraining order carrying extraordinary legal force. If the judicial official doesn’t issue the order and the petitioner is killed, the judicial official could be burned in a media firestorm.

Because the democratic failure in public discussion of domestic violence encompasses the judicial system, the best hope for upholding the ideal of equal justice under law may be randomization. Recent legal scholarship recognizes fatal weaknesses in knowledge about profiling, policing, and punishing.^ Unrecognized weaknesses in domestic-violence expertise, including deeply rooted anti-men gender bias, are even more severe. This scholarship urges embracing randomization as a means to provide equal justice under law:

No more leaps of faith. When we are at the precipice of reason, faced with competing hypotheses, indeterminate principles, or questionable assumptions, we must stop. Stop rationalizing which hypothesis makes more sense. Stop marshalling better reasons for one derivation of principle over another. Stop legitimizing the questioned assumption. Turn instead to chance. Resolve the indeterminacy by drawing straws, tossing a coin, throwing dice, running a computer algorithm. We need, in the end, to be mature and let chance take over where reason ends.^

The implications of this view are straightforward. Judicial officials could communicate clearly that a civil petition for a domestic-violence restraining order will result in the initial, ex parte restraining order being issued randomly against either the respondent or the petitioner. Randomized initial restraining-order targeting might provide as much protection to the true domestic-violence victim as does the current judicial process of issuing perfunctorily ex parte initial restraining orders to the first party to petition. Randomization would greatly reduce incentives for restraining-order abuse. Randomization would clearly uphold the ideal of equal justice under law in the face of the obvious reality that the judicial system cannot reasonably judge quickly and ex parte more than a million domestic-violence restraining order petitions per year.

A similar approach could be taken to eliminate gender-profiling men for arrest for domestic violence. Where probable cause exists that parties committed domestic violence against each other, police would invoke a randomization protocol that would require the arrest of the person not last arrested for domestic violence. If that decision rule were not determinative, e.g. no party had ever been arrested for domestic violence, police would perform a randomized domestic-violence arrest among the eligible parties. Upon arrest, the criminal-justice system doesn’t always dismiss the innocent and force a plea from the guilty. Yet considerable evidence exists that much domestic violence is low-level and mutual. Randomization might provide a more just justice-system response to the true problem of domestic violence. That’s vitally important given the large share of arrests for domestic violence, the extraordinarily high level of incarceration in the U.S., and the highly disproportionate incarceration of men.

Solving wrongly understood domestic-violence problems doesn’t solve the real problems of domestic violence. Today’s domestic-violence expertise can retain knowledge authority only if the public is kept ignorant of the bitter expert controversy over domestic violence, only if public reason cannot recognize the collapse of good reason in reasoning about domestic violence, and only if deeply rooted anti-men gender bias in addressing domestic violence continues to be publicly accepted. What is regarded as domestic-violence expertise is a stark indication of democratic failure. Institutions of knowledge and personal status unfortunately are particularly resistant to change. Randomization in addressing domestic violence isn’t likely to be appealing, at least initially.^ But randomization may be the best problem-solving approach to the real, current problem of domestic violence in the justice system.

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