Monday, 23 August 2010

Electing Family Court judges and magistrates: to be avoided

One of the highest qualities of the law is its magisterial nature. In Australia it is taken for granted that judges are appointed by the government of the day, as are all kinds of public servants, including police, JP's and court officials.

In many parts of the US these and other officials are elected. For many years I had heard from other Australian lawyers that to have elected judges was a bad thing and that justice could only really be attained by having judges who were appointed, and therefore impartial.

I must say that I struggled with this idea, if only because of the concerns raised from time to time in Australia about the appointments processes for judges.

But then, on travelling to the US I was confronted by the reality of the election of judges: several attendees I spoke to at the National Coalition Against Domestic Violence/National Organisation of Men Against Sexism conference in Los Angeles stated to me that by the process of election, judges are less impartial, or at least have that risk when it comes to family law.

I was shocked to learn that in several parts of the US, judges do not need legal qualifications, and these are the very same people making or more often (as the accusation goes) refusing to make protection orders, so that those those who have been subject to domestic violence are left vulnerable and not able to obtain effective legal protection.

Furthermore, it was suggested that judges open for re-election are tempted to pander to the men's right lobby and fail to protect women and children, and even more pervasively then alter how they run their courts, so that they are not accused of bias against men.

One would hope that the election of judges would be a dignified affair. However, as seen in the piccies, this is not always the case. The last photo is not of someone seeking to be a judge, but someone with an unfortunate surname who would be virtually unelectable to any position in Australia.






Classy

Cochise County Courthouse, Arizona

Mark Suagee's truck outside Cochise County courthouse- hard at work.

Enough said

Sunday, 22 August 2010

Domestic violence risk assessment: thanks to Mark Wynn and Nashville

Recently I was fortunate enough to travel to the US. While there, one of the places I visited was Nashville. You may think of Nashville as the home of country music. I think of Nashville as  the home of country music, where Keith Urban and Nicole Kidman live, but importantly for me and my clients (and their children)  for the pioneering work in tackling domestic violence.



"Domestic violence" and "Nashville" aren't phrases that immediately come to mind. However, a now retired policeman, Mark Wynn thought that a new way was required by police in tackling domestic violence. Part of that involved new and better ways of investigation, and part involved that of assessing risk. Mark founded a new division of Nashville metro police, specifically tackling domestic violence.

I was staggered on meeting Mark many years ago to learn how different the police response on domestics was from that in my home town, Brisbane. In Brisbane, typically two police show up- because if there is a weapon it is presumed to be a knife. In Nashville, typically four police would show up - because if there were a weapon, it would be presumed that both parties had a gun.

Mark's pioneering work has made a difference to the way I practise law. One of the key messages I took away from the work Mark and others had undertaken in Nashville was the need to assess risk. I have long had the view that lawyers and others have in many ways failed to communicate with the survivors of domestic violence about safety, and how that safety is obtained. 



I am also of the view that there is little point in talking about safety if the issue of risk is not assessed first. How can safety be planned when the risk to the survivor has not been considered? To do otherwise is to live in a  fool's paradise- and placing the safety and possibly the life of the survivor and of any child in jeopardy.

I was fortunate enough to obtain the permission of the Nashville Metro police department to use its risk assessment tool, which I use with all my clients who have been the subject of domestic violence.




These days the domestic violence division, sadly, still exists. I am glad that the domestic violence division still exists for the safety of those escaping domestic violence, but it is sad that the nature of society in Nashville means that it is still needed. It operates from a non-descript office near the centre of town. Police in Nashville told me that callouts to domestics remain some of the most dangerous parts of their work.

This is is a glossed down version of what I use with my clients as to risk assessment. It is a modified version of what Nashville Metro police use, and it is used with their kind permission:



Domestic violence:

1. Risk Assessment

A Cautionary Note:
Traditionally, this has involved the analysis of specific threats, or of the perpetrator's capacity for serious or lethal acts of violence.
There are a number of currently available risk/danger assessment instruments, including some sophisticated computerised models.
What these tools do is help us think through the dynamic elements of a particular case, and compare it to known cases that resulted in serious injury or death.
In a sense, they serve an important "coaching" function, in that they remind us to do a thorough investigation and analysis of the significant elements of a case.
What they cannot do is predict the behaviour of any given individual. The single best predictor of future violent behaviour continues to be past violence, and we cannot, in any absolute sense, predict lethality or serious injury. The best we can do is evaluate comparative risk, and attempt to safeguard against identified dangers.
The other thing they cannot do is help us really enter into the world of battered victim's problem solving. Avoiding serious injury or death is certainly the most dramatic aspect of a domestic violence intervention strategy. But once we understand domestic violence as a problem of coercive control rather than simply as problem of assault behaviour, we are forced to broaden our concept of risk assessment. Like battered victims, we then need to conduct a thorough analysis of the complex package of physical, legal, economic, familial, social, and emotional risks faced by the victim, and by those she/he feels bound to protect.
This set of concerns extends well beyond traditional definitions of "safety".
While you want the abuse to end, you may not want to see your partner harmed, publicly shamed, or damaged financially.
You may want to protect your privacy and sense of competence.
You may be weighing the effects that taking the children out of their regular school in order to seek shelter will have.
You may fear that your partner will try to get residence of the children if you seek help about the domestic violence.
You may be concerned that multiple court appearances will lead to the loss of your job.
If you leave an abusive partner, you may fear being "cast out" by your family or religious community.
Understanding "safety" as something more than protection from assault, we need to get beyond "danger", look at a broader range of risks, evaluate their seriousness, and weigh the real consequences of any possible courses of action we might propose to you.
In identifying pressing concerns and evaluating risks, it is critical to get a sense of how the relationship has developed and at the range of coercive tactics employed by the abuser. The question isn't simply "what kind of danger are you and your children in?" We have to ask at the same time, "How constricted has your life become?" and "What might be done to reduce both the danger and the narrowing of free choice and action?"
When evaluating available options - the key questions are:
"If you do X (or do not do X) which risks go up, which go down, and which new risks arise?" and,
"What are the implications - for you, your children, other witnesses, the offender, the community, and us if we  do (or don't do) X?

2. Elements of Risk Assessment

1.      Assessing Threats
For too long, there has been a very high "discount rate" when it comes to evaluating threats made by one partner against another. The tendency is to dismiss these as things being said "in the heat of the moment", or to see threats as an abuser's way of "letting off steam." Inevitably, in the aftermath of a death or serious assault, the "wisdom of hindsight" kicks in, and people tell reporters: "we saw it coming."
In evaluating threats, consider the following:
o                         Do you believe the threat?
o                         Was it made in the presence of other people? In writing? In a recorded telephone conversation?
Willingness to "leave evidence" or "not caring who knows" may indicate a more serious intention to follow through.
o                         Is it detailed and specific?
The more thought that's gone into the plan (evidenced by the amount and specificity of the detail); the more likely it is to be acted on: "I'm going to kill you" is cause for concern; "Tonight, I'm going to feed you feet first through that wood chipper" is cause for greater alarm.
o                         Is the threatened act consistent with his/her past behaviour?
o                         Does the abuser have the means to carry it out?
Consider the parallel to assessing potential suicides: There's having the thought, then there's having a plan, then there's being able to follow through. Where the "means" are at hand, there is more risk.
o                         Have there been "rehearsals" of the act that is being threatened?
These can be verbal "picture painting" ("let me tell you what I'm going to do . . .") or partial reenactments (showing someone the weapon you intend to use or the place where you're going to kill or bury them).
o                         Does the threat extend to others (children, family members, police, new lover)?
Fear of harm to others may restrict your willingness to resist and/or to follow through with police, Department of Child Safety and the courts.
Parental interference and parental kidnapping are too common in domestic violence cases. In addition, a substantial percentage (in one study, more than a third) of domestic homicides are multiple-victim killings, murder-suicides, or murder-suicide attempts.
o                         Does the threat involve murder, suicide or both?
2.      General Considerations
Here, we need to consider not just "yes or no" but to what degree these factors are present.
A.      History of Violence/Use of Force
§                          Was the suspect abusive to former partners or family members?
§                          Has the physical violence increased in frequency or intensity over the past year?
§                          Has the suspect recently become violent toward the children?
Violence tends to escalate against a victim at the same time that it begins to be directed to the children.
Children are likely to be injured when attempting to intervene in domestic incidents. Young boys convicted of homicide are more likely to have killed a suspect abusing their parent than to have killed anyone else.
§                          Has the violence involved choking or attempted strangulation?
These acts seriously escalate the potential for serious injury or death, but are often described by offenders as attempts to "restrain" an "out of control" victim.
Whenever there is an indication that choking or "restraint" is a tactic of abuse, it's critical to do a thorough assessment.
§                          Did the suspect use an object, such as a belt or other article of clothing, a telephone cord, an electric cord, a lead or a plastic bag?
§                          Did you initially "see stars", black out momentarily, or lose consciousness for a protracted period, or lose bladder or bowel control? Or subsequently, have any degree of neck swelling? Have bruises, burns or red marks or spots on the neck? Have reddening of the "whites" of the eyes? Vomit or cough up blood? Experience difficulty breathing or swallowing? Has speech become "raspy" or lost voice? Experience headaches and/or neck pain?
§                          Has the violence involved head-banging or a head injury?
§                          Has the batterer been violent while you were pregnant?
§                          Does the batterer have a history of violence toward people who aren't intimates or family members?
§                          Does the batterer have a history of sexual assault behavior?
§                          Has the batterer ever abused pets or other animals? During this relationship, or as a child?
§                          Has the batterer destroyed property particularly their partner's personal property?
Intentional and terrorist destruction of property is often an "it could as well be you, and next time might be" message.
§                          Does the batterer have a special interest in/fascination with movies, television shows, video games or books that focus on themes of violence, power and revenge; "true crime" stories of homicide or stalking?
B.      Weapons
§                          Are there weapons in the household? Does the batterer keep weapons in more than one place? Where are they kept? Does the batterer have access to weapons owned by others? Is the batterer trained in their use?
§                          Does the batterer have illegal or exotic weapons?
§                          Is having and being willing to use weapons part of their self-image?
This is particularly crucial in relationships that involve people in police, corrections, the military, and the criminal justice system.
§                          Has the batterer's past violence involved the display, use or threatened use of firearms or other weapons?
§                          Does the victim possess weapons? What kind? Is the victim trained in their use?
C.      Centrality
In one form, this emerges when one partner feels anxious and unsafe without the compliant presence of the other.
In another, more extreme and dangerous form, one partner feels/believes they are "incomplete" without the other. Psychologists and other mental health professionals will use terms like "enmeshment" to describe this.
In assessing for centrality, we need to look at both the material and the emotional "overlaps" between people's lives.
§                          Do you live together or share possessions? Do you have children in common? Are there legal ties between you?
§                          Are you financially dependent on the abuser?
§                          Is the abuser possessive? Does he/she express beliefs of "ownership" or sexual entitlement to you? Is the abuser violently or constantly jealous of you? Does the abuser make unfounded accusations of infidelity?
§                          How much does the abuser's sense of self depend on the relationship?
For instance, has the abuser ever said, "I'd be lost without you" or (being ordered into counselling or drug/alcohol treatment,) "I can't do this without you" or "If you leave me, I have nothing to live for"?
§                          Is the abuser socially dependent on the relationship?
§                          As the relationship has progressed, has he/she become less connected to friends and family?
D.      Stalking
§                          Does the offender engage in "checking up" behaviours? Listen in on conversations, read mail, require an accounting for whereabouts and activities?
§                          Does the offender enlist others in monitoring your behaviour?
Not only the offender's friends, family, co-workers and cell mates, but also your friends, family, and co-workers.
§                          Has the offender contacted - or threatened - your friends, relatives or co-workers?
§                          Has the offender followed, "staked out" or otherwise stalked you?
§                          Has the offender made unwanted attempts to communicate by mail or telephone, or through third parties?
These communications don't have to be threats. They can be "oh baby, I was so wrong I don't know what came over me; can you ever forgive me; let's work it out together" messages, flowers, gifts, etc.
E.      Control
§                          Does the abuser control most of the financial resources?
§                          Does the abuser control or attempt to control most or all of your daily activities?
§                          Does the abuser give you lists of things you must and cannot do? Does the abuser ask you to repeat conversations you had with others? Are you required to account for your movements? Does the abuser check the odometer? Do you have to account for every penny you spend?
§                          Has the abuser attempted to isolate you, by moving or by driving people away?
§                          Does the abuser believe he/she is entitled to control in the relationship?
§                          Does the abuser equate compliance with loyalty?
§                          Is the abuser able to accept disagreement or behaviour that is difficult from what he/she would like to see, or does he/she interpret those things as a form of personal attack?
F.       Other Concerns
§                          Does the abuser drink? Use drugs? How often?
§                          Has there been a recent escalation in the abuser's pattern of drinking or drug use?
§                          Does the abuser's childhood history include domestic violence? Physical child abuse? Sexual abuse?
§                          Is this near an "anniversary date" of a traumatic incident from the abuser's past?
§                          Have holidays always been flashpoints?
§                          Does the abuser basically see themselves as somebody "things happen to", as being put-upon, or as the victim of other people's actions?
§                          How does the abuser describe "things that went wrong" (failed relationships, lost jobs) in the past?
§                          How able is the abuser to understand other people's motives and feelings?
§                          Also: how much does the abuser tend to project his/her own feelings, fears, or motives onto others?
§                          Is the abuser able to accept responsibility for his/her actions?
§                          How does the abuser respond to change, particularly when it wasn't his/her idea?
§                          Did the relationship begin in a "whirlwind", with quick sexual involvement, living together soon after meeting, marriage within six months of meeting?







Thursday, 12 August 2010

At last, back from the USA trip. Standouts were going to the NCADV and NOMAS conferences in LA, and going on patrol with police in Phoenix.