Wednesday, 30 April 2008

New courthouse for Sandgate

I have put below a media release about a new courthouse at Sandgate in Brisbane.

It is essential that we have smart design in courthouses. It is particularly important now that domestic violence cases form some of the core business of Magistrates Courts (Local Courts in NSW). Now there is a much higher emphasis on security and ensuring that those who are vulnerable, such as survivors of domestic violence, are safe.

Although I did not go to the old courthouse at Sandgate often, I remember it well. There was nothing quite like appearing for a woman who was seeking a protection order, and waiting to get on in court. There was no security at court. The only place to wait was the pokie waiting room for which there were about a dozen seats. My client's ex was also there, and he was also sitting in the waiting room. And where was he sitting- two seats away from my client. And where was I sitting? In the middle of course. I am so glad nothing went wrong.

Thank God for a new, safer courthouse.

Now for the Ministerial Media Release:
Sandgate Courthouse Delivers New Brand of Justice to Local Community
Sandgate's new courthouse will deliver an even higher level of service to the local community, with a greater focus on clients and the latest in justice technology, Attorney-General and Minister for Justice Kerry Shine and Member for Sandgate Vicki Darling said today.

Mr Shine officially opened the $4.7 million complex this morning, saying it marked the start of an exciting new chapter in the court's history which dated back to 1880, the same year the bayside village was declared a town.

"Sandgate now has one of the most modern courthouses in Queensland," Mr Shine said.

"The design marks a significant departure from the past, when there was more of a fortress mentality and a heavy focus on the person in the dock.

"Security is still important and the new precinct is safer than ever, but these days there is a much greater emphasis on the needs of our more deserving clients, particularly those who have been on the receiving end of criminal activity.

"The new courthouse includes a waiting room for the victims of domestic violence, and another equipped with closed-circuit television for vulnerable witnesses, including children and victims of sexual assault.

"This enables them to give their evidence without the added trauma of having to face the alleged offenders in open court."

Mr Shine said video links also enable evidence to be taken from witnesses at other locations, including those being held in custody around the state.

"That avoids the need to transport prisoners to and from court for minor proceedings such as mentions and adjournments.

"The project also involved construction of a secure link to the adjoining police station, which is monitored with electronic surveillance equipment."

Ms Darling said the courthouse opening was a great day for the region.

"This is just the first of a number of significant events in our region in coming days with Cabinet to visit Bribie Island and Redcliffe on Sunday and Monday," Ms Darling said.

"This new court house provides interview rooms for lawyers, including Legal Aid and the Aboriginal and Torres Strait Islander Legal Service, officers from other government agencies, such as Corrective Services and Child Safety, and various community groups.



"There is also a mediation room to assist in the resolution of less serious disputes without having to call on a Magistrate, as well as the courthouse registry," she said.

"Another room has been set aside for visiting Justices of the Peace to provide free community services such as signing and verifying documents, an initiative we are very keen to develop further during the course of this year."

Mr Shine said the building's design included many 'green' features, such as sensor lights that monitor and react to the level of natural light outside, the large skylight in the foyer, which also reduces electricity use, and a 6,000 litre rainwater tank plumbed into the public toilets.

"The Queensland Government committed $66 million this financial year to build and upgrade justice infrastructure around the state," he said.

"In addition to Sandgate, that includes funding for other new courthouses at Pine Rivers and Ipswich, as well as the new Supreme and District Courts to be built in George Street.

"There are many more projects underway elsewhere in Queensland and this new precinct is an excellent example of how that investment is making a very real difference where it matters most - in our local communities."

Last financial year, the Sandgate Courthouse dealt with more than 5,200 criminal charges and nearly 200 civil claims.

Tuesday, 29 April 2008

Australian Crime and Violence Prevention Awards

Nominations are now being accepted for the 2008 Australian Crime and Violence Prevention Awards. Nominations must be submitted by Monday, 26 May 2008. See: http://www.aic.gov.au/acvpa/

Monday, 28 April 2008

NZ National Disabilities Coalition Against Violence

A national network of people with a disability has been established in New Zealand to address issues of family and domestic violence (2008, ‘New Disabilities Coalition Against Violence’, New Zealand Family Violence Clearinghouse News, vol 4 issue 1, p. 2, http://www.nzfvc.org.nz/14309.pub). Among its first tasks, the NNSVS Disabilities Coalition Against Violence will advocate for more New Zealand research around the prevalence of domestic and family violence in disability communities, seek funding for training workers and comment on relevant legislation.

Sunday, 27 April 2008

Survey of Australian women indicating high rates of violence in the home

The Australian Women's Weekly’s survey of 15,000 women aged over 20 years, has reported high levels of violence in the home (2008 ‘Sex down, violence up: women's survey’, The Sydney Morning Herald, 26 March). When asked if they had ever been raped by their husband or partner, 22% of women surveyed said they had. This was a rise of 13% since the survey was run in 1980. The number of women who said they had been raped was to 13%, up from 8% in 1980. 18% of women surveyed admitted to being physically abused by a partner, while 35% said they had experienced emotional abuse while in a relationship. The survey will be published in three parts in The Australian Women's Weekly.

Saturday, 26 April 2008

WA: Remaining safely in the family home

Victims of domestic and family violence in the Western Australia now have access to a service that allows more women and their children to remain in the home, rather than leave in fear of more abuse. The Wheatbelt Early Intervention and Outreach project, run by the Waminda Women’s Refuge in Northam, provides home support for victims of domestic and family violence, after police remove the domestic violence perpetrator from the home. The program is one of five similar pilot projects operating throughout Western Australia and will be evaluated by Edith Cowan University.

Friday, 25 April 2008

QLD TO BAN UNDERAGE COSMETIC SURGERY IN AUSTRALIAN-FIRST

Joint Statement:
Premier
The Honourable Anna Bligh
Minister for Health
The Honourable Stephen Robertson
17/04/2008
QLD TO BAN UNDERAGE COSMETIC SURGERY IN AUSTRALIAN-FIRST
Queensland will become the first state in Australia to ban unnecessary, high risk and invasive cosmetic surgery for young people under the age of 18 years, Premier Anna Bligh told Parliament today.

Ms Bligh said an overwhelming response to the first round of public consultation on the issue had revealed strong community support for measures to protect the health and welfare of children and young people.

"Of the nearly 300 public submissions from parents, young people, community groups and industry - 82 percent of respondents were very concerned about unnecessary cosmetic surgery for people under 18 years of age.

"This community concern reflects that of the Government - that young people are making adult decisions about major surgery based on what society tells them is an ideal body image.

"I appreciate this can be a difficult time, especially in a young woman's development, but to resort to a surgeon's blade is an adult response best left until one is an adult.

"We are not talking about procedures to correct deformities, or address particular physical features that impact on their medical, psychological or social well-being, but major surgery for purely cosmetic reasons for teenagers will be banned.

"As legislators, we have a responsibility to ensure our youth are not resorting to surgical quick-fixes to improve their appearance and there are no cowboys in the industry are preying on their vulnerabilities and insecurities.

"This is not about becoming a nanny state - it is about protecting the health of young Queenslanders and ensuring any adult decisions they make about their bodies are made as adults," she said.

Health Minister Stephen Robertson said he expected to bring a Bill to Parliament mid-year.

"Queensland Health will now undertake further consultation with industry to set down clear definitions of "high risk and invasive surgery" and criteria around what circumstances and types of surgery can be exempted from the bans - but we will not be wasting any time.

"There is a disturbing trend of doctors reporting an increase in adolescent patients enquiring about, and demanding, cosmetic surgery.
"The experts are telling us that a heightened focus on cosmetic surgery in advertising and television shows has added to age-old pressures affecting our kids about their appearance.

This pressure appears to be contributing to an increase in young people asking about cosmetic procedures for purely aesthetic reasons and the Bligh Government will tackle this trend now," he said.

Mr Robertson said the Bligh Government would also move to ban solarium use by Queenslanders under the age of 18, pending any national approach.

"Queensland is the first state to move towards banning solarium use by young people under the age of 18," he said.

"I will discuss national regulation with my Federal and State counterparts tomorrow at the Australian Health Ministers' Council in Melbourne.

"While we will support a national approach to regulation, we are determined to ban young people from this potentially harmful practice and will do so - regardless of the outcome of tomorrow's discussion," he said.

Source: Ministerial media release

Thursday, 24 April 2008

New legal service in Geelong

Victims of family violence in Geelong in Victoria now have a dedicated service providing legal assistance. Barwon Community Legal Service has received funding for dedicated family violence lawyers to provide a new family violence program. The Attorney General, Mr Rob Hull, has indicated that a new Family Violence Bill will be introduced later in the year, to provide victims of family violence with greater protection and to make perpetrators more accountable for their actions.

Wednesday, 23 April 2008

Case: de facto relationship, but why would you bother?

In Delaney v Burgess the appellant de facto wife was able to show that the trial judge was incorrect in finding that her relationship with the de facto husband was only a business relationship of boarder and owner of the home, when amongst other things, they had had sex, he had described her affectionately in a card as his "wife", in children's proceedings had sworn that she was his de facto wife and listed her as his flying companion with Qantas.

However, after a relationship of 4 years, when the de facto husband had $450,000+ of property and superannuation, the de facto wife was ordered to be paid $15,000 plus costs of the appeal [all of which would be likely to be fraction of what she had paid in legal costs]. The de facto wife had made little financial contributions during the course of the relationship other than board in part because she had a gambling problem. Why would you bother going to court for such a small sum?

Tuesday, 22 April 2008

Case: NSW Supreme Court: when is there a de facto relationship?

In Hayes v Marquis, a decision of the NSW Court of Appeal, the majority of the court held that the parties were in a close personal relationship including for a period of 3 years when Mr Hayes slept over at Ms Marquis' home 3 nights a week.

The majority held:

-The question whether one of the statutory relationships which attracts jurisdiction under the Property (relationships) Act 1984 NSW exists, is fact dependent and requires a practical approach. The concept of “living together” in s 5(1)(b) of the Act does not require the parties to live together fulltime.

-The question of whether a couple is “living together” turns on an evaluation of the nature and extent to which they share a household and is ultimately a value judgment, which has regard to the three indicia under s 5(1)(b) to determine whether there is a relationship which fulfils the definition as a whole.

-The requirement in s 5(1)(b) that one or each of the parties provides the other with “personal care” may be satisfied through the provision of either physical or emotional support.

-Statements to a government authority apparently inconsistent with a party’s case are taken into account as a part of all the circumstances, and are not determinative of whether a relationship exists for the purposes of the Act.

-Parties to proceedings under the Act are obliged to make full and frank disclosure of all relevant financial circumstances [or as been commented elsewhere- a case of "show and tell" not "hide and seek"].

-It is open to the Court to give full weight to the parties’ pre-relationship contributions, in considering the terms of any s 20 order, if they fall within s 20(1)(a) and (b).

The case is also testimony to the sometimes pyhric nature of appeals. The appeal was successful, resulting in the amount having to be paid decreasing from $140,000 to $120,000- the difference being less than each of the parties probably incurred on the appeal.

Monday, 21 April 2008

THE IMPACT OF DOMESTIC VIOLENCE ON CHILDREN:

THE IMPACT OF DOMESTIC VIOLENCE ON CHILDREN:

RECOMMENDATIONS TO IMPROVE INTERVENTIONS


by Sarah M. Buel, J.D.1

Sarah Buel is a Professor of Law at the University of Texas

© 2008, all rights reserved


Table of Contents

INTRODUCTION ………………………………………………………….………2
UNIVERSAL SCREENING………………………………………………….…….3
SAFETY PLANNING……………………………………………………….……...7
CULTURAL COMPETENCE ………………………………………………….…..9
FAMILY VIOLENCE AND JUVENILE DELINQUENCY ………………………13
TEEN DATING ABUSE …………………………………………………………..14
BATTERERS AND CHILD CUSTODY ………………………………………….16
SAFE VISITATION ……………………………………………………………….19
CHILD PROTECTION AND BATTERED MOTHERS. . . . . . . . . . . . . . . . . . . . ..21
RESPONDING TO CHILDREN AT THE CRIME SCENE. . . . . . . . . . . . . .. . .. . .26
FAMILY VIOLENCE AND SUBSTANCE ABUSE …………………..……….…28
FAMILY VIOLENCE AND MENTAL HEALTH …………………………….…..30
CHILD SUPPORT………………………………………………………………….31
THE DANGERS OF MUTUAL PROTECTIVE ORDERS ………………………34
CONTRAINDICATION OF MEDIATION …………………………………....…..35
ECONOMIC EMPOWERMENT OF VICTIMS ……………………………. .. . . .37
BATTERERS AND EFFECTIVE INTERVENTIONS PROGRAMS …………….38
FAMILY VIOLENCE COUNCILS ………………………………………………..42
ROLE OF EMPLOYERS …………………………………………………………..43
XX. CONCLUSION …………………………………………………………………….45
I. INTRODUCTION


That children are adversely impacted by domestic violence2 is now well documented3 and intellectually understood. Yet, intervener4 and court practices in some jurisdictions continue to reflect the out-dated notion that if children have not been physically battered, evidence of domestic violence will be of little import in fashioning orders and agreements. Yet, empirical studies now document that even children’s exposure to family violence greatly increases the likelihood of internalized and externalized trauma.5 Tragically, such denial places both the abused parent and children at greater risk for further harm, and all but ensures that the abuser will have further involvement with the criminal justice system.6 It is bad enough that children exposed to violence in their homes suffer myriad harmful effects,7 but it is worse that once professional interveners become aware of such danger, little is done to protect these vulnerable victims. One goal must be determining the factors that contribute to a child’s resilience,8 and then expeditiously implement those protective measures.


Of particular importance is an understanding of the correlation between domestic violence, child abuse and juvenile delinquency through the lenses of poverty and race,9 and, in the context of mental health and substance abuse issues.10 All of this must be viewed through the structural framework of frequent cultural incompetence within our most powerful institutions.11 This article offers recommendations for improving our interventions in domestic violence legal matters regarding children and their families.


Domestic violence impacts all legal system professionals,12 with juvenile, criminal, and family court interveners uniquely positioned to dramatically improve victim safety and offender accountability if they have learned how to respond effectively.13 We must improve practices to change the current truth that it is a toss of the dice whether child and adult abuse victims can access interveners that will take their safety seriously. It is this chilling reality that informs the challenge to all interveners to move beyond dialogue to action; beyond victim-blaming to offender accountability, and rehabilitation when feasible. Promising practices exist and will be highlighted, evidencing the many interveners embracing the notion that all parties deserve safety and “domestic tranquility.”14


Often the best way to protect children is to protect their mothers who are desperately attempting to achieve safety.15 Sadly, the most frequently asked question remains, “But, why do those battered women stay?” The on-going, uninformed antipathy toward abuse victims appears based on the notion of volition; that they choose to stay with the abuser in the face of appealing options. Victims have many valid reasons for staying with or returning to the batterer, not the least of which include a lack of financial resources, no job skills, fear, low self-esteem and believing that it is in the children’s best interest to have their father or a father-figure in the home. Many victims lack knowledge of their legal and other options, thus their response could be greatly impacted by access to well-informed, zealous counsel and progressive courts.16


II. JUST AS UNIVERSAL SCREENING FOR DOMESTIC VIOLENCE HAS

BECOME PART OF THE STANDARD OF CARE FOR MEDICAL AND MENTAL

HEALTH PRACTITIONERS, OTHER PROFESSIONAL’S MUST SCREEN

EVERY CHILD FOR ABUSE.



Interveners must initiate questions about abuse in the household (or relationship) during the first meeting, in order to assess the immediate safety issues, regardless of whether the meeting is with the victim or perpetrator, adult or child.17 With any client/patient reporting prior or current abuse, a civil protection order should be fully discussed in the context of completing a SAFETY PLAN.18 Initially, many non-legal interveners may be reluctant to broach the topic of safety plans -- particularly with children -- armed with numerous excuses justifying their silence. “It’s not my job,” is a common rationale that is as erroneous as it is nonsensical. Every professional intervener with knowledge of current or potential harm to a child has a legal obligation, to notify child protective services or their local law enforcement agency. 19 In Boston, area law students staff Boston City Hospital’s Emergency Department on the week-ends to advise victim-patients of their rights and explain the process of obtaining a protective order, as well as accessing other helpful services. Medical and nursing students then accompany the law students to court in order to learn the realities of accessing the legal system; the better to advise their future patients.20


In addition to screening for physical harm, advocates, lawyers and other interveners should routinely ask children about any psychological abuse,21 a common tactic of batterers to destroy the victim’s self-esteem. The batterer may have told the victim that no one will believe her,22 that her family will be harmed if she discloses the abuse, that no one will want to help her and that the abuse is all her fault.23 Interveners must tell their battered child and adult clients, “It’s not your fault; you are not to blame for the abuse,” and ” and “You don’t deserve to be abused.”24


A lawyer’s silence constitutes collusion with the batterer and likely malpractice.25 The Model Rules of Professional Conduct specify that: “(c)ompetent handling of a particular matter includes inquiry into and analysis of the factual and legal elements of the problem, and use of methods and procedures meeting the standards of competent practitioners.”26 Given the growing body of legal, psychological and popular literature27 about the adverse impact of domestic violence on children, there can be little doubt but that screening is a minimal first step. Regardless of the legal problem with which a client presents, the attorney must routinely screen all clients for abuse. Lawyers and other interveners would be wise to follow the American Medical Association (hereinafter AMA) physician guidelines, starting with, “Because abuse and violence are so common in women’s lives, I’ve begun to ask about it routinely.”28 The intervener can then follow through with, “Have you been hit or threatened in this relationship? Are you afraid now? Do you want information about a protective order? What can I do to help?”


It is not only lawyers who are required to routinely inquire about abuse and provide follow-up information to the victims. It is malpractice for attorneys, medical and mental health providers, social workers, child protection and child care staff, and educators to not conduct universal screening.29 Empirical data document that while domestic violence victims face high risk of recurring abuse, such professionals may be privy to information that could avert further harm.30


Interveners must learn to ask for the assistance of child abuse and domestic violence victim advocates, as the case complexity means that they are often not amenable to simple solutions. For example, the battered mother may also be abusing her children, but is more likely to stop when her batterer is removed from the home.31 When the victims are immigrants,32 elders,33 lesbian34 or gay,35 handicapped, teens,36 substance abusers, mentally ill or otherwise traditionally underserved, advocates can provide invaluable guidance.37 Whether offering specific resource and program referral information, or suggesting strategies with difficult clients, advocates are often able to decrease the stress of handling such cases. Interveners must remember that when a victim recants or seeks to withdraw orders, she is often trying to stay alive. If we become frustrated because the victim wants to dismiss the divorce or protective order, has reunited with the abuser or is not leaving a dangerous relationship, it is helpful to say the following:


(1.) I AM AFRAID FOR YOUR SAFETY.

(2.) I AM AFRAID FOR THE SAFETY OF YOUR CHILDREN.

(3.) IT WILL ONLY GET WORSE.

(4.) I AM/ ADVOCATES ARE HERE FOR YOU WHEN YOU WANT TO TALK OR LEAVE.

(5.) YOU DO NOT DESERVE TO BE ABUSED.38



Finally, attorneys must address domestic violence issues with their clients in order to avert claim preclusion in future tort litigation against the abuser. Many states require that all related issues be handled in the divorce action, and certainly within the statutes of limitation, effectively precluding subsequent legal action as redress for the abuse. Thus, while victims are encouraged to detail the domestic abuse in the divorce or other case pleadings to allow the court to make the proper safety and remedial orders, such information is exactly what impedes future litigation. Especially if child and adult victims will need on-going therapy or will incur other expenses as a direct result of the abuse, it is critical to either ensure restitution and a settlement that includes future expenses, or that the final orders allow for further tort action to cover such expenses. Furthermore, most divorce decrees include language stating specifically that the parties have resolved all matters between them, with some even delineating tort claim prohibitions. If the child and/or adult victims have been emotionally traumatized, seeking compensatory as well as the punitive damages should be considered. Although doctrinal obstacles may make tort litigation against abusers more difficult, counsel is ethically obligated to fully discuss such options with adult battered clients and the legal guardians of child victims.39 Attorneys will also want to consider tort litigation against other professionals whose improper interventions have harmed the child or adult victim, such as physicians, law enforcement officers or therapists.40


III. SAFETY PLANNING MUST BECOME AN INTEGRAL PART OF DOMESTIC

VIOLENCE, CHILD ABUSE AND JUVENILE JUSTICE INTERVENTIONS.


A. Contrary to popular belief, leaving the batterer does not ensure safety. In fact, separation violence is likely for domestic violence victims.41 Attempting to leave the batterer can cause the abuse to escalate, resulting in an increased likelihood that the victim, and too often her children, will be murdered.42 Similarly, children and adolescents disclosing abuse will need immediate and long-term safety planning as their perpetrators often seek to retaliate, particularly if they fail to see adults protecting the victims. Adult and child safety plans may be downloaded for free from the ABA website – these are not copyrighted and should be widely distributed throughout the community.43


B. Safety planning must become an integral part of every intervener’s work with domestic violence victims and their children, whether or not the victim remains with the perpetrator. An abused child or adult may be forced to remain with the perpetrator, yet is obviously in great need of assistance in negotiating safety. Interveners must formulate resolutions that prioritize victim safety, while fairly handling divorce, custody, visitation, support and other assorted civil and criminal matters. The Adult and Youth Safety Plan brochures provide action steps to help victims stay alive, but have a more universal application. Courts can help by implementing a policy in which a protection order, family, criminal and juvenile cases will not be dismissed prior to an advocate completing a Safety Plan with the victim and children. Responsible interveners are advising their clients about the safety ramifications of their decisions, be they victim, offender or child.


C. Separation abuse adversely impacts the safety of adult and child abuse victims. Batterers frequently engage in on-going abuse during and after separation that requires child and adult safety planning over time. Domestic violence is often cited as a key factor for women ending marriages and creates continuing challenges for the battered parent.44 The current legal framework offers negligible protection for most battered women whose abusers use the courts to continue their abuse. It turns out that having children with an abuser increases the post-separation danger to abuse victims.45 Ignoring the high conflict inherent in domestic violence relationships, many courts assume that after divorce co-parenting is in the best interests of the children,46 with seventeen states and the District of Columbia having a statutory presumption favoring joint custody.47 However, many states also include presumptions against allowing sole or joint custody to batterers,48 and allow the victims to opt out of what is otherwise mandatory mediation.49 The problem is that because many of these legislated safeguards are relatively new, the victim’s lawyer may not know about or see the merit of such options. Thus, victims may find themselves compelled to have direct contact with their batterers under the guise of child custody and visitation parenting plans.50


D. “Custody blackmail” impairs the victim’s ability to secure a fair disposition. Abuse victims often attempt to negotiate child custody and visitation while being physically, verbally, and psychologically abused by the batterers.51 Some abusers promise to kill or severely harm the victims if they seek custody or support,52 while others threaten financial ruin, child abduction, and/or dispute of child custody.53 Batterers’ willingness to use their children as bargaining chips has produced the term “custody blackmail” to describe the revenge motives evidenced during and after separation.54 Often intimidated, abuse victims are forced to surrender or compromise custody and support rights,55 to the detriment of the children. Empirical research documents that such fears are justified as there is a clear correlation between the severity of abuse in the course of the marriage and that which continues during and after divorce.56 Under the weight of such credible threats, many battered women feel no option but to agree to waive child support in exchange for custody.57 An inability to obtain child support can force abuse victims to seek public assistance, and they may become homeless.58


Interveners must consider the empirical data indicating that batterers are far more likely to engage in protracted custody battles, and, generally, are highly litigious as a means of continuing to assert control over their partners.59 Sharing children with an abuser puts the victim at particular risk, as it is quite difficult to sever ties with such a persistent offender.60 It is thus evident that the current legal framework affords batterers many opportunities to continue their abuse in the form of custody, visitation, support, and other litigation.


IV. CULTURAL COMPETENCE MUST BE REQUIRED, WITH ON-GOING

TRAINING AND GUIDANCE FOR ALL INTERVENERS.


A. All interveners must ensure that their staffs reflect the diversity of the communities they serve. Victims, offenders and their children report increased confidence in providers who look like them and share their backgrounds. It is also important that staff and clients have access to publications coming out of communities of color to provide a more balanced view. In addition to the usual Newsweek or Better Homes and Gardens magazines, offices should add those periodicals focusing on people of color, such as Essence, Jet, Latina, Hispanic, Asian American, Ebony, Emerge, etc. The presence of magazines from communities of color can help send the message that your office embraces diversity and is committed to being educated about how to improve its practices.


B. Supervisors should ensure on-going training on cultural competence. Without additional training, many interveners (especially whites) base their opinions on stereotypes and misinformation prevalent in our culture. The William Monroe Trotter Institute has documented that eighty-five percent of the information about people of color, disseminated by major media outlets, is negative.61 Such biased misinformation cannot help but impact the professional decisions being made regarding hiring, firing, promotions, etc. As legal scholar Richard Delgado articulates, “white people rarely see acts of blatant or subtle racism, while minority people experience them all the time.”62 Thus, employers must ensure that they make available to staff publications from communities of color (a few of the mainstream ones are listed in a.), and that these are available in court and service agencies’ waiting areas.


Changes in U.S. immigration laws and patterns of re-settlement have substantially impacted the numbers of those foreign born interacting with the legal system. For instance, upwards of 60 percent of Asian Americans were not born in America; a rate ten times that of the U.S. population.63 Thus, in some communities, many of the victims and offenders may not be familiar with the American justice system and are understandably suspicious of any governmental involvement in family matters.64 Compounded by the backlash against immigrants and general attitude of intolerance toward "difference," efforts to improve interventions with families of color may be sabotaged by local bigotry.65


C. We must remedy the disproportionate arrest, prosecution, and incarceration of youth and adults of color. As is typical in many jurisdictions, Milwaukee County reports that although African-Americans constitute just 24 percent of the population, they represent 66% of the domestic violence arrests that find their way to the district attorney’s office. Whites are 62 percent of the populace, but surface in just 32 percent of the domestic violence cases reviewed by prosecutors.66 To its credit, Milwaukee County has established a Judicial Oversight Initiative Committee (JOIC) to address the disparity, in part by studying the city vs. suburban police responses. In the more white suburbs, the Committee found batterers were often issued municipal citations and paid fines, while those of color in the City of Milwaukee tended to be arrested, charged with state crimes and prosecuted. The JOIC Report states that, “The problem lies in the fact that it appears that some people in our community, depending on where they live, their race, ethnicity, income or occupation, are not being held to the same standard of accountability."67


Nationwide, juveniles of color comprise just 32 percent of the youth population yet constitute 67 percent of the juveniles in secure detention facilities.68 Federal and state studies indicate that youth of color experience a “cumulative disadvantage” as a result of being unfairly treated at every juncture in the system. In comparing white vs. minority youth before the court for the same offenses, African American juveniles with no prior admission had a six (6) times greater likelihood of being incarcerated than did the white youth. Hispanic juveniles had a three (3) times greater chance of being incarcerated than the white youth.69

Similarly, adults of color face dramatically disproportionate rates of arrest, prosecution and incarceration.70 While African-Americans constitute just 13 percent of all drug users, they represent 35 percent of defendants arrested for possessing drugs, 55 percent of those receiving convictions, and 74 percent of those being incarcerated.71 Some states’ records of disparate racial dispositions are even more pronounced, as evidenced by seven states in which African-Americans comprise 75-90 percent of all incarcerated drug defendants.72 The racial disparity in arrest rates, coupled with media attention, perpetuates the misconception that whites do not use drugs as often as African-Americans, when the opposite is true. Former drug czar William Bennett clarified that, “The typical cocaine user is white, male, a high school graduate employed full time and living in a small metropolitan area or suburb.”73


Annually, close to half of the 700,000 marijuana arrests are Latinos. Such imbalanced practices permeate every phase of the criminal justice system with little redress by powerful legal and legislative stakeholders,74 and often, disastrous consequences for the convicted men of color. Criminal drug and felony convictions can preclude receipt of financial aid for college or technical schools, and result in denial of public housing, emergency financial assistance, the right to vote and apply for civil service jobs and the military.75 Currently, 13 percent of African-American adult males (1.4 million) are disenfranchised by virtue of criminal convictions.76


While incarceration of all females increased eighty-eight percent from 1990 to 1998,77 two-thirds are women of color, most of whom are African-American.78 Of further concern, the Bureau of Justice Statistics (BJS) predicts a ninety-five percent increase in the rate of imprisonment for African-American women, at the same time it projects a fifteen percent increase for white women.79 Overwhelmingly, women’s offenses are nonviolent, yet punitive sentencing continues to be the norm.80 Additionally, from 1986 to 1991, the nation saw an 828 percent increase in the number of African-American women arrested on drug charges. Pregnant women of color are also about ten times more likely to be reported for substance abuse, though studies indicate that pregnant white women abuse drugs and alcohol at higher rates. Research has shown that drug and alcohol abuse rates are higher for pregnant White women than pregnant Black women, but Black women are about 10 times more likely to be reported to authorities under mandatory reporting laws.81


The criminal justice system’s racial bias contributes to many battered women of color feeling reluctant to call the police for help; family and community must take precedent as the legal system has proven it is not one upon which she can rely for access to legal remedies, including those likely to garner safety.82 It is hoped that more jurisdictions will follow the lead of Milwaukee County to remedy racial inequities. The challenge for courts and legal professionals is to balance the cultural influences with legal doctrine designed to protect victims, while holding the perpetrators responsible.



D. All community education materials must positively reflect the rich diversity of our communities. All posters, brochures, PSA’s, instructional videos, etc. should portray the valued diversity of the people whom we want to serve and are on our staff. As a model, the domestic violence posters from the Family Violence Prevention Fund and the National Domestic Violence Hotline not only depict people of diverse races and cultures, but are printed in several languages as well.83 We must educate ourselves about the resources within our communities that are available to serve people of color and determine what are the unmet needs. For example, you will want to know if there exists a battered women’s support group conducted in Spanish, or if the area needs African-American batterer’s intervention counselors. Similarly, when addressing the needs of mentally ill or substance abusing litigants,84 every effort should be made to ensure that interventions reflect the nexus between race, culture and discrimination against such parties. When services are race and culture-specific, they are utilized in greater numbers and with higher success rates.


V. THE CORRELATION BETWEEN FAMILY VIOLENCE AND JUVENILE

DELINQUENCY INDICATES THAT EARLY INTERVENTION IS ESSENTIAL.


A. Children who grow up in a violent family are more likely to abuse others or to be victims of abuse, as adolescents and adults.85 Those children who do not replicate the abuse generally have had at least one adult protecting them or clearly speaking out against the violence. Children need not be directly beaten in order to take on violent and delinquent behavior: it is enough for them to witness their mother’s abuse. The Massachusetts’ Department of Youth Services found that children growing up in violent homes had a six times higher likelihood of attempting suicide, a twenty-four percent greater chance of committing sexual assault crimes, a seventy-four percent increased incidence of committing crimes against the person, and a fifty percent higher chance of abusing drugs and/or alcohol.86 Another study comparing youth who were delinquent vs. those who were non-offending found that a history of family abuse was the primary distinction between the two groups.87 Such children are in pain and they are self-medicating in response to an adult community seemingly content to disregard the violence in our families.


B. Adolescent and teen boys often try to protect their mother from a violent partner, particularly when they see adults failing to intervene. One study found that 63 percent of the young men between the ages of 11 and 20 convicted of murder had killed their mother’s batterer.88 In Thompson v. Oklahoma, 15 year-old William Wayne Thompson killed his brother-in-law who had been brutalizing William’s sister for years, with impunity from the authorities.89 In ruling that the Eighth and Fourteenth Amendments bar executing an adult for murder committed as a 15 year-old minor, the U.S. Supreme Court acknowledged that William’s motive was to protect his sister from her husband’s violence.90


C. Almost without exception, adolescents who kill are from homes with acute levels of intrafamily violence, and many have been sexually abused.91 It has been well documented for decades that these youth are often direct witnesses to and victims of sustained, extreme violence.92 In their homes violence is modeled as the means by which problems are resolved and is generally considered acceptable.93


VI. TEEN DATING ABUSE


A. State laws rarely protect teen dating abuse victims. Although one in three teenagers will suffer physical abuse in a dating relationship,94 most legislatures provide either inadequate protections or none at all.95 This lack of legal remedies poses many challenges for teens seeking help in escaping dangerous relationships. Since usually teen victims are close in age to their batterers,96 protective orders should be permitted against minors. States should permit teen victims to obtain protective orders without mandating that adults be involved in the process.97


B. Teen dating violence may predict victim and offender patterns which may continue without effective, early interventions.98 Teen batterers must be held responsible for their misconduct in order to decrease the likelihood that they will carry such notions of entitlement into adulthood.


C. School based dating violence intervention programs should be implemented in collaboration with domestic violence advocates. Austin’s Safeplace shelter began a Teen Dating Violence Project (TDVP) in 1988, offering 24-week theraputic peer support groups in their public schools, first just for victims, but expanding to perpetrators in 1991. Barri Rosenbluth, who directs the Safeplace School Based Intervention Programs, has used the Expect Respect curriculum, which teaches the warning signs of batterers, including excessive use of power and control.99 Ms. Rosenbluth explains that early on she surveyed some teen victims who reported on-going, increasingly violent behavior by their partners, but an unwillingness to break off the relationships. When asked to raise their hands if they thought all men were violent, every girl responded affirmatively. It was then that the focus shifted from simply warning the victims about abusive behaviors, to teaching them how to set limits, protect themselves and expect respect and equality in their relationships.100 Cisco Garcia, who now heads the Expect Respect Project, includes gender, race, culture, and other relevant topics as part of the revised curriculum.101


D. Innovative interventions must be pursued.


Barrie Levy, a psychotherapist who has written three books on teen dating violence, cautions that the signs of abuse may not be easy to detect. Some warning signs include controlling behavior, extreme jealousy, withdrawal from friends and hypervigilence toward obeying the partner’s rules. Ms. Levy suggests that each partner should be approached separately if abuse is suspected, though neither partner may be willing to acknowledge the problem. Rather than trying to stop all contact, Levy cautions adults to focus on safety. For example, a teacher, probation officer, judge or advocate might say, “I understand that you love him, but I can see you’re being hurt.” A critical next step is to provide information and referrals for where the teen can get help.102


VII. BATTERERS SHOULD NOT BE AWARDED JOINT OR SOLE CUSTODY OF

THE CHILDREN.103


A. Men who batter their partners are likely to also abuse their children.104 One study estimated a seventy percent co-incidence of partner and child abuse in violent families.105 In New York, it was reported that half of the children whose mothers are abused are likely to be victims of physical abuse.106 In most cases, the abuse of the children ends when the children are removed from the batterer’s environment and placed exclusively with their mother.107 Additionally, the more serious the battery of the mother, the more severe the child maltreatment.108


B. After parental separation, there is increased risk that the batterer will physically, sexually and/or emotionally abuse the children.109 Post-separation, batterers will often use the children as leverage to coerce the victim to return; whether promising gifts for them or invoking guilt for depriving them of a father-figure.110 Children report being routinely grilled by the batterer regarding their mother’s actions, dress, social life and spending habits, in flagrant disregard for the emotional toll exacted.111 Children being molested by a parent frequently do not report the abuse for some time, making prosecution and accountability extraordinarily difficult.112 The typical lack of physical evidence and witnesses only compounds the difficulties, with temporal delays increasing the likelihood of destroyed evidence.113


C. Children are traumatized by witnessing the abuse, whether their pain and rage are turned inward or vented on others. Frequently, the children have witnessed the domestic abuse, either by being present in the same room or hearing it.114 They are traumatized by seeing their parent harmed, and often express anger at themselves for not being able to protect the abused parent. Some children are furious with the abuser, while others are upset with the victim for not figuring out how to leave and protect herself and the children. After age five or six, some children may disrespect the victim for her perceived weakness, and identify with the batterer.115 Still other children risk injury when intervening to try to protect their mother or si;blings from the batterer.116 Children who witness domestic violence demonstrate the same symptoms as physically or sexually abused children, including psychosomatic, psychological and behavior dysfunction.117


D. Courts should presume that a batterer is not fit to be the sole or joint custodian of the children.118 Just such a presumption was unanimously passed by Congress in 1990, in response to the realization that too many batterers were able to present well in court and obtain custody of the children.119 Most states now require, as does Texas,120 that courts must consider evidence of domestic violence in making custody determinations.121 In fact, Texas case law has created a preference that the non-violent parent be appointed managing conservator (sole physical custodian).122 However, too often the courts have minimized or rationalized the abuse, as well as its impact on the children.123 Thus, family advocates applaud Louisiana’s 1992 amendment to its custody code, which includes the above-referenced presumption against custody to the batterer, but also specifies that the abusing parent can only obtain supervised visitation and must successfully complete a batterer’s intervention program.124 The “best interest of the child” standard requires that abusers not receive joint or sole custody of their children.


E. Contrary to popular belief, most fathers who attempt to gain custody of their children do so successfully.125 Certainly, in some of those cases the father was the more fit parent. However, in other instances the battered mother lost custody of her children because she had no access to legal counsel and did not know how to defend herself against the well-financed attorney of the batterer.126 One reason this fact should scare us is that the majority of batterers grew up witnessing their fathers beating their mothers,127 confirming that domestic violence is a learned behavior. Even with legal representation, it can take years for the victims to prove that the batterers used death threats, alienated the children, hid assets, and otherwise continued their pattern of total control throughout the divorce process.128 In the mean time, the children are learning that violence works; it is an acceptable means to obtain what you want. Thus, the generational cycle will continue unless our children are taught, with our actions, that: (1.) Most men are not violent to their partners and children; (2.) there is no excuse for domestic violence; and (3.) the abusive behavior will not be tolerated.


F. Psychologists’ Child Custody Recommendations Frequently Ignore Domestic Violence. Surveying psychologists from 39 states, researchers found that of the criteria used to make custody decisions, a history of domestic violence was seen as relevant by just 27.7% of respondents.129 This study’s findings are shocking given that over forty states’ statutes require judges to consider domestic violence in custody decisions. Particularly disturbing were the factors that custody evaluators did believe were more important than a history of abuse. 75% of the psychologists believed that sole or joint custody should not be granted to a parent who “alienate[s] the child from the other parent by negatively interpreting the other parent’s behavior.”130 For psychologists without training in the dynamics of domestic violence, the abused parent’s efforts to protect herself and her children could easily be misinterpreted as intentionally alienating the batterer-parent. This in spite of the American Psychological Association’s determination that there exists no scientific basis for the theory of parental alienation syndrome.131 Surprisingly, just 54.7% stated they would recommend sole custody being given to the primary caretaker, while 25% weighed economic stability as a key factor.132 Clearly, it is the lawyer’s responsibility to identify and engage psychologists who have received training regarding domestic violence and its adverse impact on children.


G. Battered Mothers Frequently Make Many Courageous Efforts to Protect Their Children From the Abuse. A 1998 shelter outreach project found that one of the issues of most concern to battered women was addressing the adverse impact of the abuse on the children,133 yet often the victims are blamed for being unable to stop the batterer’s violence. The Massachusetts’ Department of Social Services (DSS) Domestic Violence Unit is to be commended for their extensive efforts to identify battered mothers and provide more appropriate interventions, in the context of child protection cases. By providing on-going training to all staff, as well as regional domestic violence advocates within DSS offices, they have been able to assist many abuse victims in accessing legal assistance and other resources. Such steps can obviate the need to remove the non-abused children, while better protecting the battered mothers.134


H. Based solely on their status as abuse victims, battered mothers should not be denied child custody.135 In Lewelling, the Texas Supreme Court was clear: “We hold that evidence that a parent is a victim of spousal abuse, by itself, is no evidence that awarding custody to that parent would significantly impair the child. Any other result is contrary to the public policy of our state. . . The legislature has also determined that removing a child from a parent simply because she has suffered physical abuse at the hands of her spouse is not in the best interests of our state.”136


VIII. ENSURE SAFE VISITATION: CHILDREN SHOULD BE EXCHANGED AND/

OR SUPERVISED AT A CERTIFIED VISITATION CENTER.


A. Abuse victims and children often face renewed violence in the course of visitation, necessitating lawyers and judges prioritizing safety concerns.137 In recognition of the highly volatile atmosphere in visitation settings, Louisiana is to be commended for their emphasis on victim (adult and child) safety. As previously noted, Louisiana presumes that neither joint or sole custody can be awarded to a perpetrator of adult or child abuse, but requires supervised visitation until the perpetrator has successfully completed a batterer’s intervention program.138 The National Council of Juvenile and Family Court Judges also proposes that abusers should be limited to supervised visitation until they have completed a certified program and had a batterer’s expert evaluate them.139


B. Visitation Center staff must be fully trained in the dynamics of domestic violence in order to keep the child and adult victims safe. Well-intentioned, but ill-informed, providers can greatly endanger all parties involved. Several domestic violence victims have reported that the Kids Exchange Visitation Center allows their staff person to accompany the batterer and child to the batterer’s home during supervised visits.140 Not only is this practice contrary to the purpose of supervised visits (child safety), but also places the staff person at risk and unnecessarily creates liability for the Center. At the Center there should be guards or security personnel, as well as other employees, to ensure that the batterer stays within the limits of non-violent behavior. The more child-focused Visitation Centers, such as those in Houston,141 and in Brockton, Massachusetts,142 require that all staff (including the security personnel) receive training on family violence dynamics, as well as the clear policies designed with victim safety in mind.


C. Where there is evidence of serious domestic violence, courts should assume that any visitation with the battering parent should be supervised.143 Supervised visitation must not be conducted by any relative or friend of the batterer, and any associated costs should be paid by the battering parent.144 Further, the ABA House of Delegates on Unified Family Courts’ resolution suggests that courts should: (1) ensure that children only be exchanged for visitation in protected places; (2) allow only supervised visitation (with the batterer paying costs); (3) prohibit visitation (supervised or otherwise) unless the batterer has completed a specific batterer’s intervention program; and (4) allow visitations only when the batterer has abstained from possessing or consuming alcohol or drugs for a designated time prior to and during visitations.145 Additionally, when appropriate, the courts can deny overnight visitations, mandate that abusers who have threatened kidnapping must post bond to ensure the children’s return, maintain confidentiality of the victim and children’s address, and be open to other creative conditions which will promote victim safety.146


IX. CHILD PROTECTION AND BATTERED MOTHERS

A. Expecting Battered Mothers to Always Be Able to Protect Their Children


Only recently has legal scholarship addressed the correlation between domestic violence and child abuse.147 There is much disagreement between advocates and the public regarding whether battered mothers sufficiently protect their children from their partners’ abuse. Professor Elizabeth Schneider notes that society assumes mothers should be able to shield their children from all harm and criminally penalizes those who cannot—regardless of the obstacles.148 Absent from much of the child protective system’s case planning and interventions are the abusive fathers.149 Child protection expert Professor Jeffrey Edleson notes that the failure to include batterers in the interventions to make adult and child victims safe, renders the abusers both invisible and unaccountable.150 He asks, “If child protection systems and the juvenile courts are truly concerned over safety in families, why are they usually ignoring the very person who is creating the unsafe environment?”151 Edelson goes on to lament the increasing trend of charging abused mothers with failure to protect, while ignoring the empirical data indicating that batterers pose the greatest danger to children. He cites studies reporting that, “most families involved in child fatalities were two-person caretaker situations where a majority of the perpetrators were the father of the child or the boyfriend of the mother.”152


Professor Bernadine Dorn cites the formidable challenges of financial dependence and fear of violent retaliation: “Fathers, step-fathers and “boyfriends,” as well as larger social institutions, are absent during the legal and moral adjudication of mothers.”153 Unfortunately, however, many do not share the depth of understanding evidenced by Schneider and Dorn, as even those who might be sympathetic toward a battered woman who has killed in self-defense have little compassion for one charged with failing to protect her child.154 Mothers are expected to be able to protect themselves, yet they are expected to forfeit their lives to protect their children.155

B. Legal Standards


A battered woman may face removal of her children, and even termination of parental rights if she cannot stop her abuser’s violence. When defining child abuse, many states intentionally include “one whose parent knowingly allows another person to commit the abuse.”156 Under this standard, a battered woman’s parental rights may be terminated if she cannot stop the abuse,157 regardless of her realistic ability to do so. Child protection caseworkers and prosecutors have wide-ranging discretion in such cases, typified by the broad wording of the District of Columbia’s statute, defining an abused child as: "a child whose parent, guardian, or custodian inflicts or fails to make reasonable efforts to prevent the infliction of physical or mental injury upon the child."158

C. Gender, Race, and Class Bias


Gender, race, and class bias are prevalent in case handling of mothers charged with failing to protect their children.159 For example, although Andrea Yates methodically drowned her five small children, she was not given the death penalty. The media and public focused on her status as a white, middle class suburban mother, overwhelmed by successive births, home schooling, and mental illness. There can be little doubt that if Andrea Yates had been a substance-abusing woman of color or a welfare mother, there would have been little sympathy for the causes of her murderous rampage.160 Race and class bias further isolate battered women, particularly those of color, whose abusers threaten to file false reports with Child Protective Services (“CPS”),161 or in those jurisdictions in which police routinely notify CPS when responding to domestic violence calls in which children at visible at the scene.162

D. In Re Nicholson


Typical of the practice in many states, New York City’s Administration for Children and Families (“ACS”) routinely charged battered mothers with the offense of “engaging in domestic violence,” and removed their children without the requisite court orders.163 The In Re Sharwline Nicholson, et al.164 case prompted U.S. District Court Judge Jack Weinstein to find that low-income battered women threatened with losing their children faced a Kafkaesque situation, in part because of the “sham” system of court-appointed counsel. He stressed that ACS was guilty of the “pitiless double abuse of these mothers” and had violated their constitutional rights.165 Judge Weinstein’s scathing decision said these practices were rooted in “benign indifference, bureaucratic inefficiency and outmoded institutional biases.”166 Nicholson implicates class, race, and gender bias as the majority of the Nicholson plaintiffs and eighty-five percent of New York City’s foster children are African-Americans, Hispanics, or immigrants.167 Although it is proven that domestic violence occurs across all socio-economic strata, Nicholson illustrates that child protective agencies rarely intervene with affluent families.168

Judge Weinstein’s landmark decision also found that ACS often charged battered mothers with neglect solely on the basis of their being battered, and neither helped the mothers flee the abuse nor held the batterers responsible. Furthermore, ACS often placed children in foster care without good cause, failed to properly train its staff about domestic violence, and encouraged this pattern of improper conduct in its written policies. Citing violations of the Fourth, Ninth, Thirteenth and Fourteenth Amendments, Judge Weinstein also denounced ACS for its blatant disregard for the plaintiff’s due process rights.169

In addition to awarding Ms. Nicholson $150,000, with similar amounts for the other plaintiffs, Judge Weinstein also ordered ACS to dramatically change its practices. ACS was ordered to stop taking children from battered mothers whose only “offense” was being abused,170 and to coordinate with domestic violence advocates to design improvements for its handling of such cases.171 Judge Weinstein specified that ACS should make reasonable efforts to increase the safety of battered mothers and their children by removing abusers, providing shelter, and assisting victims in obtaining protective orders and prosecuting batterers.172 He mandated that ACS staff receive domestic violence training and that removal of children should be the option of last resort, utilized only after ACS has made good faith efforts to safeguard the mother. To facilitate adequate representation for the battered mothers, he ordered New York State to raise its hourly rate for court appointed Family Court lawyers, doubling their compensation to $90 per hour.173 Judge Weinstein also identified model programs to which ACS could turn for guidance, such as the Dade County Dependency Court Intervention Project,174 and emphasized that the protection of battered mothers is most often the best way to protect the children.175

E. When the Battered Mother Will Not Protect Her Children

Perhaps most difficult are the cases in which a battered mother will not separate from the person harming her and/or her children. For a lawyer, ethical and moral conflicts may arise as clearly counsel cannot represent both parent and child in the case, whether it is a termination of parental rights or criminal matter.176 Sadly, in some cases, even after the court and a child protective agency advise the battered mother that her rights will be permanently terminated if she does not separate from the abuser, she may still be unable or unwilling to do so.177 Sometimes a domestic violence shelter advocate can provide free, on-going counseling and safety planning, with the goal that eventually this abuse victim will leave her abuser. The dilemma is that if, in the mean time, the children are placed in danger, an advocate or lawyer may be placed in the position of reporting the battered woman to a child protective agency.178


Interveners should use the strongest possible language in making a battered client aware of the consequences of her actions, while being respectful and listening to the abused woman’s issues. The battered mother may have such low self-esteem that she cannot imagine life without her partner, but can imagine being without her children.179 In such cases, it can be quite helpful if the battered mother is willing to attend a support group, speak with an experienced advocate or counselor, or read brief articles about abusive relationships. For some abused mothers, this will be their first exposure to the concept of personal rights, such as hearing that she does not deserve to be abused. For those battered mothers who are also child abuse and/or sexual assault survivors, they may assume that abuse is the status quo.180


F. Misapplication of Domestic Violence Theories


Citing Lenore Walker’s “Cycle Theory,” some courts and child protective agencies have justified assuming the children are at risk because, once battered, the mother is likely to continue “the cycle” with either this or another abuser.181 In In re Betty J.W., 182 J.B.W. had beaten and attempted to sexual molest his daughter. Mary W., the mother, reported the abuse to a child protective agency after a few days delay, because she was unable to escape from J.B.W. In another instance in which she tried to protect her daughter, Mary was threatened with a knife and beaten.183 Even so, the trial court ruled "that Mary W. failed to protect her children by failing to keep J.B.W. away and by not separating from him,"184 and cited Lenore Walker’s cycle theory in describing Mary’s inability to leave J.B.W. On the basis of this assumption, the children were placed in foster care. Fortunately, the case was overturned on appeal by the West Virginia Supreme Court.185 It is important for advocates, lawyers, and other interveners to point out that many domestic violence experts believe that the “power and control” theory of domestic violence is often a more accurate depiction of the dynamics.

G. Use of Experts in Failure to Protect Cases


Expert testimony may assist the court in understanding what may appear to be the inappropriate behavior of a battered mother charged with failing to protect her child. In People v. Daoust186 a domestic violence expert testified that a when a victim faces persistent danger of violence, it is logical that she would lie to appease the batterer. The defendant-boyfriend, Tod Daoust, severely abused Teresa Hoppe’s daughter while baby-sitting. When Hoppe suggested taking the child to the hospital to treat the injuries, Daoust threatened that he would “take care of her” and “finish” the daughter. Hoppe finally did bring her daughter to a hospital, and the staff found brain injury, serious bruising, and hot water burns. Initially, Hoppe told the police that she had disciplined her daughter and claimed not to have a boyfriend, but later acknowledged that she had accepted blame because of her grave fear of Daoust.187


Because Hoppe reported that Daoust had not hit her, it was considered novel that the expert testimony on Battered Woman Syndrome (BWS) was admissible, which is surprising given that Daoust had repeatedly raped Hoppe. The court was likely persuaded by evidence of Daoust’s constant threats to kill Hoppe and her daughter, his extreme verbal abuse, tight control of her money and all activities, and his frequent raping of Hoppe. After the trial court convicted Daoust of second degree child abuse, he appealed, alleging that the evidence of BWS was improperly admitted. The Court of Appeals determined that the BWS was relevant and necessary to understand Hoppe’s early lies about Daoust’s not harming her daughter. Evidence of Daoust’s prior abuse of Hoppe’s daughter was also deemed admissible since it was probative of the relationship dynamics, consistent with BWS.188


Particularly in cases with unsympathetic defendants, an expert may be the battered defendant’s only hope to explain her state of mind and lack of resources. In In Re Glenn G.,189 the mother was accused of failing to protect the children from sexual abuse by their father, which sometimes occurred in her presence. The court found that not only must the mother be permitted to offer BWS as her defense but also that the charges against her would be dismissed as she had no capability to protect her children from the abuse.190 While it is beyond the scope of this Article to address this issue comprehensively, lawyers representing battered women on failure to protect charges must carefully strategize the psycho-social minefields inherent in such cases.191 Finally, given that most child protection staff, jurors, judges and lawyers will not understand such thinking, counsel may want to consider using an expert in cases where the battered mother is being charged with not adequately protecting her children from the abuser.

X. RESPONDING TO CHILDREN AT THE CRIME SCENE


A. Law Enforcement Response to Children at the Crime Scene


1. Every police incident report must document both those children living in the home and those present at the crime scene. In reviewing hundreds of domestic violence incident reports in the early 1990’s, we discovered that rarely were children mentioned unless they had been so badly beaten that they had visible injuries. In an effort to collect data on this cohort of children, it was necessary to add two boxes to incident report forms: one box to note the names and ages of children living in the home and the second to list those present at the crime scene. This distinction was necessary as there could be five children living in the home, but only two present at the crime scene because the others had been sent to a neighbor when the violence erupted or they happened to be away from home on that date. Based on the assumption that the incident to which the police are responding is not the first, every effort must be made to offer services to all children traumatized from witnessing the abuse and/or being the target.


2. Talk with children alone. The interviewed children expressed great trepidation about responding to the officer’s questions in the presence of their parents. When asked if answering the officer’s questions might put them at risk for retaliatory abuse, the vast majority stated that they would get beaten sooner or later anyway, and they wanted the chance to tell their story. Certainly, not all children felt safe describing the violence in their home, but a surprising number stated emphatically that they wanted officers to talk with them and seek their help.


3. Sit at the child’s level to interview. Many of the children insisted that all the officers in Travis County were at least ten feet tall. When asked, “Don’t they lean over to speak with you?” One five year-old responded, “Yes, and they have really big faces, too.” Thus, the effort must be made to sit or kneel at the child’s level, to establish rapport and more readily gain the child’s trust.


4. Look for children who have hidden under covers, in closets, and under beds. In asking children what they did when the fighting started, many – particularly younger ones – hid in three primary places: under covers, in closets, and under beds. This information has been helpful for law enforcement officers who can look for the children quickly if they are not immediately visible at the scene. Further, the children asked that we warn them before pulling off the covers or opening a closet door, specifically by saying something like, “I’m an officer and I’m here to protect you. I’m going to count out loud to five and then I’ll open the door.”


5. Go over the Youth Safety Plan192 with the child. Advocate Gayla Kidd collaborated with a consortium of church groups in Huntsville, Alabama to fund “911 Child Safety Bags” for children. The bags contain a children’s coloring book addressing being safe in the home when violence starts, a small box of crayons, and a children’s safety plan. Huntsville Police officers carry boxes of the 911 Child Safety Bags and leave one with each child when making any response call. The idea is that many abused and traumatized children will not come to our attention, thus leaving them with every child – regardless of the reason for the officer’s presence – we increase the likelihood that dramatically more children receive the safety planning information they need.


6. Take photos to document the child’s trauma. Children should be photographed if they have visible injuries and if they appear traumatized. For example, one officer photographed a four year-old girl who was huddled in the corner, clutching her Teddy Bear and sobbing. Although the girl could not describe to the officer what she had witnessed, her visible trauma spoke volumes to the court. At the crime scene, the girl’s mother had identified her boyfriend as the person who had punched her repeatedly. On the witness stand, the mother recanted, saying that she was clumsy and sustained the bruises on her face when she fell over a coffee table. In my closing argument, I was able to hold up the photo of the four year-old and say, “Ladies and gentleman, this photo is not consistent with a child who has witnessed her mother accidentally trip over a coffee table. It is consistent with a child who has witnessed her mother get beaten up.” The jury returned a guilty verdict within twenty minutes, but one juror said, “We didn’t like the Mom; we couldn’t figure out why she’d lie for that guy. But we convicted because we couldn’t get the picture of that little girl out of our minds.”193


Dual Arrest Also Harms Children


When police unnecessarily arrest both parents, children may be displaced into foster care, and removed from their schools and homes.194 Understandably confused as to why their battered mother would be arrested, children can easily come to distrust a legal system that repeatedly punishes the victim.195

XI. THE COEXISTENCE OF FAMILY VIOLENCE AND SUBSTANCE ABUSE

INCREASES DANGER TO CHILDREN.


A. A chemically dependent batterer needs treatment for both his decision to batter and his decision to abuse substances. Abusers, their families and interveners too often use the substance abuse as an excuse for the violence, focusing only on the addiction instead of the combined problems. It has been proven that batterer’s intervention programs are more effective if the substance abuse is also treated.196 In this way the intervener can confront the batterer’s “denial, rationalizations and faulty logic” regarding both the violence and substance abuse.197 Judges can order random urinalysis or hair tests to determine whether the batterer is abusing drugs or alcohol and if so, whether he is in compliance with the court’s order to abstain.198


B. Interveners must utilize a screening tool to determine which batterers are substance abusers. Specific assessments should be in place to determine the “the nature and extent of the individual’s battering pattern and substance abuse problem.”199 The screening must accurately identify the severity and pattern of substance of abuse, to assist the intervener in assessing the level of possible danger to the victim.200 Such screening should occur as early as possible, whether in a juvenile or family drug court, probation or parole intake units, or batterer’s intervention program.


C. Since the victim is at greater risk for serious injury if the batterer is chemically dependent, all safety planning must include screening for such behavior. One study found that, at the time of committing their crimes, 60% of the batterers were under the influence of alcohol,201 while another found that fully 92% of victims report that their batterers used drugs or alcohol on the day of the offense.202 Furthermore, men who drink heavily are more likely to commit violence crimes than those who do not.203


D. Pre-release and sentencing conditions should include provisions addressing any substance abuse matters given that drunkenness dramatically increases recidivism. The judge can order that the batterer is prohibited from using drugs or alcohol,204 whether the offender is an adult or juvenile. Recent studies indicate that even one episode of inebriation during the first three months after sentencing makes the batterer three and a half times more likely to reassault his partner.205 When compared with abusers who seldom drank, those who drank on a daily basis were sixteen times more likely to batter their victims again.206 Interestingly, researchers found that employment status of the offenders did not have an impact on their likelihood of recidivism.207 The judge will also want to seriously consider ordering the substance abusing batterer into treatment, as participation of such services decreases the risk of renewed violence by thirty to forty percent.208


E. Depression or mental illness in combination with chemical dependency significantly increased the likelihood of the user battering his children and/ or partner. When the abuser was alcoholic and had either antisocial personality disorder or recurrent depression, researchers found an 80 to 93% rate of violence.209 Another study reported that severe psychopathology increases the probability of re-assault two fold.210 For the batterer who grew up in violent home, alcohol abuse raised the chances of repeating the violence.211


F. Chemically dependent victims are usually at greater risk for further harm, whether they are abusing prescription, over-the-counter or street drugs.212 Substance abusing victims are often forced to return to the batterer, since many shelters will not accept alcoholics or addicts.213 One study found a higher rate of substance abuse among battered women,214 but that the vast majority of victims did not abuse drugs or alcohol.215 Most of the users started drinking in response to the domestic violence.216 When the interveners are unresponsive, hostile, blaming or otherwise unwilling to assist the victim, the victim’s hopelessness can precipitate self-medication. White and Native American women showed higher rates of alcoholism than African American or Hispanic women.217 However, even battered women who were not addicted, but had been drinking when the abuse occurred, were less likely to find sympathy in the courts.218


XII. FAMILY MEMBER’S MENTAL HEALTH ISSUES MUST BE CONSIDERED

IN CRAFTING INTERVENTIONS TO PROTECT CHILDREN IN VIOLENT

HOMES.


A. Batterers with thought disorders have an elevated probability of committing renewed violence against their victims.219 As mentioned previously, when depression or other mental illnesses are combined with substance abuse, the rate of violence ranged from 80 to 93 percent,220 thus indicating the need for early identification of both problems.


B. Child and adult victims encumbered with mental health disorders have a more difficult time staying safe. Much research has documented that prolonged stress can permanently harm neurons in the hippocampus, a part of the brain involved with memory. However, studies have also shown that antidepressants can reverse the stress-induced harm to the cells by stimulating growth of hippocampal nerve cells.221 This is important information not only for lawyers to be able to relate to judges and probation officers, but also to share with the battered offenders who may be helped by taking antidepressants and/or seeing a therapist. Battered women are over-represented among those suffering from depression, and, not surprisingly, those incarcerated report even higher levels of mental illnesses.222


Many interveners complain that some battered women seem to enter into successive abusive relationships, as though victims choose batterers. Rather, several decades of research indicate that victims in multiple violent relationships show elevated rates mental illness, such as of self-defeating personality disorders, depression, and Post Traumatic Stress Disorder (PTSD).223 Since childhood physical and sexual abuse increase the risk of PTSD,224 counseling interventions should address the lifespan of abuse. As might be expected, the length and severity of the abuse appear to directly correlate to the degree of depression and mental illness. Those battered women with chronic and severe personality disorders are more likely to have been raised in violent families, and tend to stay with a batterer longer.225


XIII. CHILDREN ARE ADVERSELY IMPACTED BY INADEQUATE CHILD

SUPPORT.


A. A primary cause of child poverty in the United States is the nonpayment of child support. More than 80 percent of all non-custodial parents either pay nothing or less than 15 percent of their income for child support.226 Currently, approximately $35 billion in child support is owed to our children.227 The Office of Management and Budget (OMB) warns that were child support orders fully enforced, child poverty could be reduced by 47 percent.228


B. The number one reason that abuse victims return to the abuser is a lack of financial resources. Obtaining the child support not only increases the likelihood that the children will be taken out of poverty, but also that they will not be again forced to return to the violent home with their mother. For too many domestic violence victims, the child support check is all that keeps them off welfare/TANF, for their minimum wage employment cannot sustain even a family of two. Tennessee provides just $185 for a parent with two children and Texas allows $228., while more than half of all states pay less than $400. per month for a family of three.229 Given that the federal poverty guidelines are being revised from $16,000. per year for a family of four up to $19,000., it is understandable that welfare is an appealing option for domestic violence survivors.


C. Batterers often use nonpayment of child support as a means of harassing the victim and forcing her to return. Pennsylvania found that the most common factor among those men who did not pay child support was their shared propensity for committing domestic violence crimes.230 Thus, the “get tough” approach to child support enforcement is particularly necessary with batterers because they are the most willing to use the withholding of payments to further harass, threaten and frighten their victims.231


D. Regular child support payments can obviate the need for public assistance. As is logical, the battered mother who is a custodial parent has an easier time maintaining employment and is less likely to need welfare assistance if the children’s father is regularly paying child support.232 When attempting to leave welfare, consistent child support payments can also expedite the transition if they become a reliable income stream.233


E. Swift, sure sanctions for nonpayment of child support have proven quite successful. Tulsa’s Judge Linda Morrissey reports an amazing 93% collection rate, within thirty days, for employed batterers. She says that if they do not comply with the court’s child support order within one month, they are sent to jail. For those unemployed, Judge Morrissey requires that they produce written documentation of their good faith efforts to obtain a job.234 She argues that if court orders are not fully enforced in a timely manner, the non-paying parent rightly assumes there is no need to comply. If, on the other hand, the county jail awaits those unwilling to support their children, it is far more likely that the payments will be forthcoming.


F. Child support enforcement agencies can do much to increase victim safety and facilitate timely collection. First, the forms package for requesting assistance in the collection of child support must be greatly simplified and standardized across the country. The problem is exacerbated by the fact that virtually every form of public assistance also requires prolific forms, from public housing, unemployment, free/reduced lunch, W.I.C., and welfare, to day care, social security disability, Medicaid, and food stamps. One form could be used to apply for all public assistance, with limited additional forms added for programs needing other specific information. The forms must also be available in Spanish, and, to the degree possible, in other languages represented in the client community.


Second, each case with a history of domestic violence should be flagged as high risk, triggering safety planning by the child support case staff, referrals to local support services, and notice to the court to take reasonable steps to protect the victim.


Third, the state agency must expedite the payment process, ensuring that they collect the money and monitor enforcement. For example, New Hampshire law allows that any party in a domestic violence case may request that the child support payments be made to the New Hampshire Division of Human Services (DHHS). Neal Carter, Supervisor of the Office of Program Support for the Claremont Office of D.H.H.S., makes it part of standard operating procedure to have payments made through their office. Mr. Carter believes this takes from the victim the possibly dangerous task of trying to collect support payments, and relieves the batterer of the temptation to further harass the victim by making late payments or none at all.235


Fourth, client intake must include a screening mechanism to identify abuse victims and ensure they are not penalized if they are unable to disclose their batterer’s whereabouts. The intake staff must initiate questions about abuse of adults and children in the household (or relationship) during the first meeting, in order to assess the immediate safety issues. With any client reporting prior or current abuse, a civil protection order should be discussed in the context of completing a SAFETY PLAN, then referring the victim to local domestic violence programs.


Fifth, on-going client services must include safety planning. Contrary to popular belief, leaving the batterer does not ensure safety. In fact, separation violence is likely.236 Attempting to leave the batterer can cause the abuse to escalate, resulting in an increase in the likelihood of the victim being murdered.237 Since the child support staff may be the only persons with whom the victim has outside communication, it is necessary to integrate safety planning into every contact. Safety planning must become an integral part of every child support staff member’s work with domestic violence victims and their children, whether or not the victim later returns to the perpetrator. Safety planning should take place with every contact, including phone and in-person conversations. This need not be overly burdensome, but, similar to protocols instituted within the medical and mental health communities, the victim would be asked, “Have you been hit or scared since the last time I saw you?”238


The attached Safety Plan brochures, for adults and youth,239 provide action steps to help victims and children stay alive, but have a more universal application. Child support offices could, in their recorded message, offer to send an Adult or Youth Safety Plan, and routinely include a Safety Plan with mailings to applicants. Staff can encourage the Courts to implement a policy in which a child support order, protection order, family or criminal case will not be dismissed prior to an advocate completing a Safety Plan with the victim. Staff must have policies which prioritize victim safety, while fairly handling the enforcement efforts.


Sixth, child support staff should collaborate with the courts and advocates to ensure that protective orders include adequate child support. The Claremont, N.H. Office of Child Support Enforcement has worked closely with local domestic violence programs and assisted with inter-agency trainings to ensure that the protection orders not only included provisions for child support, but specified the amount. 240


Seventh, child support staff can collaborate with the courts and domestic violence advocates to ensure that the child support provisions of the protective order are made into permanent orders. The Claremont, N.H. Office of Child Support Enforcement has adopted a policy of taking each protective order and immediately opening the case to facilitate enforcement. One critical step the Office takes is to make the protective order into a permanent order. Usually this involves filing a motion in Superior Court, incorporating the protective order with any arrearages which exist, then entering a new Superior Court order for ongoing support. The Superior Court’s child support order can be added to the divorce decree.241


Similarly, Judge Bill Jones, one of four Domestic Violence Court judges in Charlotte, North Carolina, reports that two days per week they have a child support enforcement staff member present in their courtroom. All protection order and other cases which will involve child support are set for those days, thus, best utilizing all staff time. Judicial economy is achieved by freeing the judges to handle the safety and other legal matters. Paternity acknowledgment can be accomplished on the spot, with support amount determined and wage withholding forms filed. Their child support enforcement office then files that child support action as its own permanent case, enabling the child support order to remain in effect past the one year expiration date of the protective order. Victims appreciate the “one stop shopping” approach, allowing them to obtain child support along with the protective order and/or other civil remedies.242


XIV. MUTUAL PROTECTIVE ORDERS PLACE CHILDREN IN GREATER

DANGER.


A. The legislative intent of protective orders is to prevent further harm to the true abuse victim(s). The court must be careful to only provide relief to the injured party. While this may sound obvious, some batterers are able to obtain mutual orders simply by saying, “I want her to stay away from me, too.” Sometimes counsel for both parties will stipulate to mutual orders as it may appear to be a harmless concession. However, mutual orders are problematic for all parties involved: it can be a set-up for the abuser who is much more likely to re-offend without the clear prohibition. For the true victim and children, their safety is needlessly compromised.


B. Mutual protective orders are problematic for the police to enforce, as it is difficult for them to ascertain who is the true abuse victim. Law enforcement officers should not be placed in the position of attempting to determine which party deserves the protection and which one should be arrested for abuse. Often responding late at night or on the week-end, and hampered by time and staffing constraints, officers must be provided with clear orders if we expect them to protect the victims.


C. Children are further traumatized when they fail to see the true victim provided protection and witness the batterer gain powerful leverage via a mutual order. Not only is the adult victim endangered by mutual orders, but the children also are placed at greater risk for future harm. Our children need to see that the laws will protect them in their homes as well as on the street, regardless of how smooth the batterer is. The court allows the batterer to successfully nullify the protective order’s possible safety net when mutual orders are permitted.


D. Since we are so quick to condemn those victims staying with the abuser and those wishing to dismiss orders, the least we can do is take seriously the victims brave enough to seek protection. Unless the court finds that mutual combat has taken place,243 and absent one party acting in self-defense, orders issued to both parties will have a chilling effect on the true victim coming forward for help again.


XIV. MEDIATION TOO OFTEN IGNORES CHILDREN’S SAFETY ISSUES.244


A. Regardless of the mediator’s skill, the victim is endangered for disclosing any information about the batterer’s behavior. Since there is little the victim can reveal without fear of retaliation, the mediator’s attempts to negotiate a peaceful resolution can only be viewed as disingenuous. The power imbalance between victim and offender is too great: what is the victim supposed to give in exchange for safety?245 Custodial interference and prolonged custody battles are common tactics of batterers after separation. The victim must have a forum which will treat the renewed abuse seriously and make clear to the batterer that his behavior will not be tolerated.246 We do not mediate civil rights’ offenses because persons of color have a right to be free from abuse and the offender is to receive the unequivocal message that racist behavior will not be tolerated. If the court insists that mediation must occur, ensure that the victim and offender are not in the same room,247 and that the parties have legal counsel present.248


B. Batterer’s experts report that most batterers will not negotiate in good faith. Mediation relies on the assumption that both parties will enter all agreements with the intention of compliance. However, since batterers operate on the premise that they are entitled to use violence to achieve their goals, mediation is an inappropriate venue to attempt resolution of domestic violence.249 Given that most mediators are not familiar with the complex dynamics of family violence and the batterer’s relentless persecution of the victim, without sufficient, on-going training mediators cannot be expected to effect safe resolutions.250


C. State’s Alternative Dispute Resolution Statutes should be amended to prohibit mediation in cases involving domestic violence, subsequent to confidential screening of in-coming cases. A case in point is the policy statement of the Texas Alternative Dispute Resolution Statute, which rightly encourages amicable resolutions of disputes, with particular emphasis placed on conservatorship, possession and child support matters.251 Although there now exists a provision for abuse victims to opt out,252 too many lawyers are unaware of the pitfalls of mediation, thus endangering their clients. Such provisions lead many courts to mistakenly assume they need only refer contested family matters to mediation.253 While Texas mediators must complete a 40-hour training, with an additional 24 hours of instruction for those dealing with family cases,254 “domestic violence” is not a required component. Further, since there is no state or private entity to certify completion of the trainings or to accredit the programs, one should be designated with input from experienced domestic violence case practitioners.


D. For all the same reasons listed in A, B and C, couple’s counseling is also dangerous and ill-advised. Battered women’s advocates have long opposed mediation in domestic violence cases, largely for safety reasons.255 It has, therefore, been difficult to understand why some legal advisors would then refer their battered and batterer clients for couple’s counseling where the same power imbalance and lack of protections exist.


XVI. ECONOMIC EMPOWERMENT OF THE ADULT VICTIM INCREASES CHILD

SAFETY.


A. Given that the lack of money forces many victims to return to the perpetrator, attorneys and courts must provide information about achieving economic self-sufficiency. Part of improving our interventions with abuse victims and offenders is to expand the notions of what constitutes the practice of law; to make the driving force the response to the question, “What action will increase victim safety?”256 For many victims, part of that answer lies in their need for money. Thus, a critical component of safety planning is economic empowerment.


B. While domestic violence spans all income groups, fleeing it is exacerbated by lack of financial resources and job skills. Upper income abuse victims often report that the perpetrator controls all the finances, intentionally precluding access to even minimal living expenses. Without information about job and educational opportunities, too many victims are forced to return to the abuser. It is imperative that all interveners incorporate into their practices a mechanism for asking victims about their economic status, their life plans and then, creating a step-by-step “action plan” to achieve financial independence. Children, teens and some batterers can also benefit from this process. Many professionals, such as attorneys (whether prosecution, defense, family or other), physicians (whether surgeons, pediatrician, obstetrician-gynecologists or other), and a range of professionals may initially think that it is beyond the purview of their job to delve into matters of economic empowerment with abuse victims or offenders. However, if life-planning is the best mechanisms to achieve safety, that professional then has the legal obligation to engage in such a process and make appropriate referrals.


C. Even as an emergency resource, welfare benefits are increasingly unavailable to domestic violence victims, making efforts at economic empowerment all the more necessary. Welfare programs fail to provide enough money with which to support a family of any size, given that three-quarters of the states pay less than $400. per month in benefits for a family of three. Additionally, when adjusted for inflation, every state has reduced their welfare benefits from 1970 to 1996, ranging from Texas slashing theirs by 68 percent to California cutting 18 percent. Currently, a family of three in Tennessee receives just $185. per month, Texas provides $201. per month in welfare benefits, while the same family in Washington state would get $546.257 Not surprising, then, that for women and children, family violence is the leading cause of homelessness and poverty.258 In the climate of current backlash against the poor, true reform offering meaningful job and education counseling, training and connections must be insisted upon from our government and the private sector. It is incumbent upon the community to ensure that the focus shifts to enable victims to empower themselves, utilizing the resources made available through the above initiatives, including affordable and safe child care.

EFFECTIVE BATTERER’S INTERVENTIONS PROGRAMS MUST ADDRESS
THE HARMFUL PARENTING BEHAVIOR OF ABUSERS.


Batterer’s intervention programs should not be viewed as a panacea, particularly without other community support services in place.259 Certainly, they have a greater chance of reducing recidivism if the police and courts treat domestic violence seriously and will ensure that sanctions result from violations. Batterer compliance with court orders appears largely predicated on the system in place: that is, swift and sure response to the violence, continuing court review of his behavior or dedicated probation monitoring, and periodic risk assessments.260 Comprehensive, recent research indicates that arrest and court-ordered batterer’s intervention programs appear to result in sustained violence cessation.261


Lawyers representing batterers also wield much influence in their clients’ attitudes toward counseling and intervention programs.262 Just as counsel would say to a recidivist drunk driver client, so too a batterer should be told, “You can’t keep doing this. You have to choose to stop or you may ruin your life.” Some defense attorneys now condition their representation on the batterer making diligent efforts to successfully complete a certified batterer’s intervention program, as this appears to be most helpful to the client.263 As a starting point, it is helpful to learn more about the perpetrators. The following “batterer profile” is not meant to describe every abuser, bur rather to offer several generalized, common characteristics in an effort to provide insight, and thus, better shape the programs with which we try to help the offenders choose not to be violent.


A. Batterer’s public behavior is frequently quite different from their private actions.264 Many abusers are charming, charismatic and non-violent around others, and indeed, even with the victim -- at first. It is important for family, friends, co-workers, judges and others to not challenge the victim’s credibility based on the batterer’s stature and public behavior. Experienced batterer’s experts report that public behavior is not an accurate predictor of who will commit violence toward a partner.


B. Most batterers do not have a problem with anger or “poor impulse control,” rather they exert what Dr. David Adams calls “a planned pattern of coercive control.” Since many of us were sending perpetrators to short-term “anger management” programs in the belief that we were helping, it was shocking to learn from renowned batterer’s experts that most abusers are not “out of control” or angry. On the contrary, they use anger to manipulate and control their partners and children. As Paul Kivel, the co-founder of the Oakland Men’s Project, says, “Anger is not the problem.”265


C. Excusing and minimizing the violent behavior is a common tactic of batterers.

1. “I lost control.” Some abusers believe that they “lost it”,266 but batterer’s experts tell us that probably less than five percent of batterers are “out of control”. By listening to perpetrators and examining their behavior, counselors have learned that the violent behavior is most often deliberate.267 While there are some batterers who exhibit generalized violence, most will not assault the police officer who gives them a speeding ticket or their boss who yells at them for being late to work. Indeed, most abusers with a criminal record have either assaulted other intimate partners or been convicted of drunk driving or substance abuse offenses.268


2. “S/he drove me to it” is an excuse of batterers who are intent to blame others for their violent behavior.269 Dr. Adams explains that those abusers who have not been held accountable are quick to divert attention from their crimes by claiming to be the real victim. Too often, he says, the focus becomes the victim’s behavior, which “is a disservice to the abuser because it reinforces his denial of responsibility.”270


3. “I was drunk so you should forget it.” ranks high among the abuser’s excuses. In spite of the high correlation between substance abuse and domestic violence,271 batterer’s experts report that, while the alcohol or drugs might act as a disinhibitor, they do not cause the violence. Therefore, it is imperative that abusers who exhibit both violence and substance abuse, have two separate problems for which they must be held accountable and get help.272


4. The batterer’s manipulation of the children frequently increases after separation ranging from direct threats to forcing their collusion in further harassment of the battered victim.273 Batterers may demand that the children spy on their mother, then report any interactions with males or behavior he considers suspicious. In the presence of the children, cursing, name-calling, threats and excessive criticism of the victim are also common. Particularly when a protective order prohibits direct contact, many abusers use the children to relay their threatening messages or pleas to return home.274


5. In order to reduce recidivism, batterer’s intervention programs must be long-term,275

culturally competent,276 and behavior-based277, with community support to provide sanctions for new incidents278 and on-going partner contacts.279 Professor Gondolf’s research indicates that while almost half of the men recidivated within the 4-year follow-up, most did so within the first 9 months after starting a batterer’s intervention program. 2 ½ years after the initial assault, more than 80% of the men had not recidivated within the prior year, and at the 4-year mark, more than 90% had not reassaulted their partners for at least a year.280 Furthermore, Dr. Gondolf reports a decrease in the severity of the reassaults, as well as a pronounced reduction in the verbal abuse, threats and controlling behaviors of the batterers. The most accurate indicators for the recidivist batterers were the victims’ predictions of further abuse and the men’s intoxication, in addition to those typical of other violent offenders: a lengthy criminal record and prior severe assault against intimate partners.281


Former batterer Hamish Sinclair runs a long-term batterer’s intervention program, called Man Alive, in San Francisco, Sacramento and Marin Counties in California, as well as in the California Prison System. Man Alive is a three year program, designed to allow successful participants to act a co-facilitators in their last year. Mr. Sinclair states that his program’s success is due in part to its length, but also to the fact that participants are taught both that their violence is inexcusable and that they can go back to their communities to teach others to be non-violent.282


6. Ensure that adolescent batterers’ programs have an intervention methodology and curriculum that focus on victim safety and offender accountability. The Massachusetts Department of Public Health has promulgated PILOT PROGRAM SPECIFICATIONS for Intervention with Adolescent Perpetrators of Teen Dating and Domestic Violence. The eleven-page outline provides guidelines for establishing such a program, complete with sections addressing 3.3 Minimum Qualifications For Program Staff, 4.0 Intervention Methodology, 4.1 Inappropriate Methods,4.2 Educational Component (with ten suggested topic areas), 5.0 Client Intake, 5.1 Evaluation (of batterers) and various other necessary sections.283 Nashville’s TeenPEACE (Project to End Abuse through Counseling and Education) provides intensive group sessions for adolescent males who have assaulted a female and are on probation. Through the juvenile court, the 12-week program intervenes with at-risk youth. “Through knowledge attainment, skill building and attitude change, TeenPEACE helps participants end domestic violence in their relationships and in their community. TeenPEACE helps participants identify the abusive or controlling behaviors they use and teaches them abstinence based skills for solving conflicts and handling disappointments in a positive and non-abusive manner.”284


7. Ensure that prevention programs are undertaken in the schools to teach our youth non-violent tactics for problem solving. Since 1989, Austin’s Expect Respect program has provided a stellar model of school based intervention and education, operating in elementary, middle and high schools. In addition to classroom presentations, they offer support groups, individual counseling as well as staff training and technical assistance, and evaluation. Fully administered by the SafePlace shelter, the program was able to exponentially expand as a result of their receiving a Centers for Disease Control grant.285



8. Ensure that attorneys, law enforcement and other powerful batterers are disciplined

according to the law. Attorneys who batter their partners are violating the American Bar Association’s Model Code of Professional Conduct, as well as state law.286 Several states have taken such cases seriously. New Jersey’s Supreme Court, in In the Matter of Lawrence G. Magid,287 and in In the Matter of Salvatore Principato,288 ruled that these lawyers’ conviction for assault against their partners constituted a violation of Rule 8.4. Not only did the Court order a public reprimand of the lawyers, but also stated: “We caution members of the bar, however, that the court in the future will ordinarily suspend an attorney who is convicted of an act of domestic violence.”289


Similarly, anyone convicted of specific misdemeanor domestic violence crimes or while subject to a Protection Order is prohibited from possessing guns or ammunition under the 1996 amendment to the Gun Control Act of 1968.290 This law, also known as the Lautenberg Amendment (so named for the bill’s sponsor, Frank Lautenberg (D-N.J.)), applies to law enforcement officers, as well as all other citizens.


XVIII. ALL RELEVANT STAKEHOLDERS SHOULD PARTICIPATE IN THEIR

LOCAL FAMILY VIOLENCE COUNCIL TO ENSURE CHILDREN’S ISSUES

ARE ADDRESSED.291


Across the country, lawyers, advocates, judges, law enforcement, probation officers and other interveners have been instrumental in starting and maintaining Family Violence Councils, found to be one of the best mechanisms for reform.


A. Judges and lawyers are particularly powerful systems’ change agents and have the responsibility to work toward improving the courts. To address the concern of some judges that such involvement might compromise their obligation to maintain the appearance of neutrality, Judge Stephen Herrell292 has written an article assuring them that it is, in fact, their responsibility to become involved in improving the justice system. Judge Herrell argues that, not only should judges serve on family violence councils, but can be instrumental in bringing together the necessary players to create an effective system.293 Starting, chairing and/or serving on a Family Violence Council can increase the morale of judges, practicing attorneys, court staff and the myriad community players who participate.


B. The Family Violence Council must be multi-disciplinary, diverse and inclusive. Not only does the Council need the court-related personnel (prosecutors, advocates, law enforcement, probation/parole, clerks and judges), but also defense and family law attorneys, child protective services, CASA’s, clergy, educators, legal aid, corrections, public housing staff, survivors, medical and mental health providers, business representatives, and other interested citizens. It is essential that the racial and cultural diversity of the community be reflected within the Council membership. Additionally, within each profession invited to attend, the top decision-makers should also bring their front-line staff. The police chief is wanted for his/her power to ensure solid policies, but the officers who directly respond to domestic violence calls are needed, as well.


C. The Council should probably have rotating co-chairs, with most of the work done in committees. All members should have an opportunity to co-chair meetings, setting the agenda, sending out notices and running the meeting. There are some rare exceptions, in which a judge or other member serving as chair is adept at keeping the momentum of the Council, while making ensuring maximum utilization of all participants. Sometimes a Council can be re-energized by involving more members in the leadership roles and becoming action focused. If the Council’s work is done in designated committees (maybe children/ Child Protective Services issues, court issues, legislative, shelter, etc.), each committee is free to set its own agenda, recruit the needed players and avoid any one issue taking over the larger meetings.


D. Meetings should be held monthly, at a convenient location and with snacks. No community is so lacking in family violence-related problems that they can afford to meet less frequently than monthly. Minimal as it may seem, refreshments can help create a positive association with Council meetings.


E. An action-oriented, three-prong approach should be taken toward problem solving. The first prong involves the Council participants honestly identifying the challenges and problems their community faces. Second, they name who is responsible for ensuring the needed changes happen. Finally, the Council must devise an action plan, utilizing their members, to bring about the reforms.294


XIX. TO BEST PROTECT CHILDREN, ALL EMPLOYERS SHOULD ADOPT

POLICIES TO ADDRESS DOMESTIC VIOLENCE IN THE WORKPLACE.


Employers can play a powerful role in helping stop domestic abuse and can be held liable for their failure to adequately protect victims in the workplace.295 The family of Francescia LaRose agreed to a settlement of $350,000. from Houston’s State Mutual Life Assurance Company and the Duddleston Management Company, after Ms. LaRose was murdered at work in 1995. Ms. LaRose had requested that her employer help protect her from ex-boyfriend, Patrick Thomas, who had threatened to murder her. Sadly, her employer’s response was to admonish Ms. LaRose to keep her personal problems out of the workplace.296 Similarly, a San Francisco jury awarded $5 million dollars to the families of a battered woman’s co-workers, who were murdered at work by the woman’s estranged husband. The victim’s employer, the Equitable Life Assurance Society, denied assistance, thus endangering not only the victim, but her co-workers, as well.297 Employers have a responsibility to provide all employees with a copy of written guidelines, covering treatment of victims and offenders in the workplace. At a minimum, employers should make available SAFETY PLANS and community resource information, and the National Hotline #1-800-799-SAFE.


Employers are urged to follow the Polaroid Corporation’s model, which not only provides victims with company time for individual counseling and/or support groups, but also allows up to three weeks paid leave for victims to handle their affairs (go to court for a protective order or bail hearing, move, etc.), and up to one year unpaid leave with a guarantee of their present job back. Dr. James Hardeman, the manager of their employee assistance program, also meets with every perpetrator-employee to explain that his continued employment is dependent upon not reoffending and the successful completion of a certified, one-year batterer’s intervention program.298 All employers, from police departments and hospitals, to two-person practices and courts, should have such a policy that makes victim safety a priority. If more employers adopt guidelines clarifying that we are here to help prevent further harm, many more victims and their children could be alive tomorrow. Additionally, batterers may obtain the interventions they need to avoid recidivism and possibly prison.


An outstanding model which could be replicated in most areas is the “Polaroid CEO Project”. Polaroid’s CEO Gary DiCamello recruited about sixty other Massachusetts’ corporate CEO’s to enlist their company’s support in “adopting” a domestic violence program (mostly shelters) or visitation center. The corporations are not asked to give large cash donations, though they are certainly free to do so. Rather, the corporations work with their adopted programs to identify needs (such as maintenance, financial planning, fundraising, etc.) for which the company could help. One of Polaroid’s additional contributions was to pledge to provide job training to one hundred battered women per year, enabling them to learn valuable job skills, while gaining economic empowerment and self-esteem. This is the program through which Newton-Wellesley (MA.) Hospital adopted their local shelter, providing free medical care and financial planning, among other assistance.

XX. CONCLUSION


As adult and child advocates, law enforcement, probation and parole officers, social workers, counselors, attorneys, judges and other interveners, we should be celebrating that domestic violence victims and children are increasingly turning to the courts for protection from abuse. Nashville’s Police Lt. Mark Wynn says we have the privilege of making the law keep its promise to abuse victims: affording them equal protection, due process and freedom from domestic tyranny. As Lt. Wynn has shown with the remarkable efforts underway in Nashville, one key is applying gentle, relentless pressure to achieve the protections our victims deserve. We can interrupt the intergenerational cycle of learned abuse by teaching our children that the community will not tolerate the violence. “We have a choice,” Juvenile Court Judge Dale Harris says, “Will our children and their mothers have homes they can run to or homes they must run away from?”299


Additional Resources


Laura Crites & Donna Coker, What Therapists See That Judges May Miss: A Unique Guide to Custody Decisions When Spouse Abuse is Charged, 27 Judges' J. 11 (Spring 1988).
John W. Fantuzzo & Wanda K. Mohr, Prevalence and Effects of Child Exposure to Domestic Violence, 9 Future of Children 21 (1999).
George W. Holden, Introduction: The Development of Research Into Another Consequence of Family Violence, in Children Exposed to Marital Violence: Theory, Research, and Applied Issues 1 (George W. Holden et al. eds., 1998).
Gina L. Kershaw, The Child Witness as a Victim of Domestic Violence: Prosecuting the Batterer Under California’s Child Abuse Statute, 19 J.JUV. L. 196 (1998).
Julie Kunce Field, Visiting Danger: Keeping Battered Women and Their Children Safe, CLEARINGHOUSE REV. 295 (1996).
Janet Leach Richards, Protecting the Child Witness in Abuse Cases, 34 FAM. L.Q. 393 (2000).
Nancy K.D. Lemon, The Legal System's Response to Children Exposed to Domestic Violence, 9 Future of Children 67 (1999).
Susan Schechter & Jeffrey L. Edleson, Domestic Violence & Children: Creating a Public Response 2 (2000) (developed for the Open Society Institute's Center on Crime, Communities & Culture).
Alan J. Tomkins, et al., The Plight of Children Who Witness Woman Battering: Psychological Knowledge and Policy Implications, 18 LAW & PSYCHOL. REV. 137 (1994).
Nancy E. Walker & Matthew Nguyen, Interviewing the Child Witness: The Do’s and Don’t’s, The How’s and The Why’s, 29 CREIGHTON L.REV. 1587 (1996).
Joan Zorza, Protecting the Children in Custody Disputes When One Parent Abuses the Other, 29 CLEARINGHOUSE REV. 1113 (1996).