Because domestic violence is one of the more complex and problematic issues in contemporary society, it is not surprising that proposed interventions are often met with degrees of skepticism that produce far more questions than answers. For example, the proverbial question of whether a given action operates in the best interests of a victim appears to take center stage. However, peripheral questions, speaking not only to the victims’ actions and behaviors but also to the actions of criminal justice decision makers, permeate the boundaries of morality and further expose the nature of questionable behaviors.
More specifically, these behaviors center on the following questions:
- Should requests for temporary restraining orders be granted in the absence of supporting evidence?
- Are victims’ advocates morally justified in discouraging victims from prosecuting in the interest of victim safety?
- Are police morally justified to make a dual arrest if they cannot determine a primary physical aggressor?
- Should no-drop polices be pursued in instances in which victims express grave concerns about their personal safety for assisting the prosecution?
- Is it ethical for prosecutors to subpoena victims who refuse to testify on the state’s behalf?
- Should victims’ eligibility for crime compensation depend on their willingness to assist prosecutors?
These questions are controversial, but represent only a mere fraction of ethical concerns unique to domestic violence courts. To appreciate the broader context and importance of these issues, it is necessary to explore the origin and history of domestic violence courts.
History of Domestic Violence Courts
Prior to the 1970s domestic violence was considered to be a private matter in which the police and the legal system were extremely reluctant to intervene. The feminist movement of the 1970s (coupled with other social forces) shed light on domestic violence issues and helped alter public perception from that of a private matter to one of a more serious and criminal nature. Since the 1970s domestic violence laws have been implemented and reformed multiple times in an attempt to decrease the prevalence of domestic violence and increase the safety of those affected by it.
Some of the reforms implemented surrounding domestic violence include: presumptive and mandatory arrest policies, court-ordered treatment for offenders, orders of protections, victim advocacy, and a focus on courthouse safety. However, most of the reforms were ineffective in reducing domestic violence. When specialized courts, designed to handle certain types of crimes, began to appear in the 1990s and early 2000s, some jurisdictions created specialized courts for domestic violence. Today, these are referred to as domestic violence courts. Drug courts, mental health courts, community courts, and the nascent veterans’ court are included in the list of specialized courts created over the course of the last three decades.
Domestic Violence Courts
Since their creation, domestic violence courts have struggled to unify planning, practices, and outcomes. As a result, the definition of what constitutes a domestic violence court is constantly changing, which makes it difficult to precisely measure the number of domestic violence courts that exist in the United States. One issue in defining a domestic violence court is that some domestic violence courts only hear criminal or civil cases, while others are integrated and hear both types of cases. Depending on the definition of a domestic violence court, researchers state that there are between 130 and 210 active domestic violence courts in the United States. While the definition of what constitutes a domestic violence court may be unclear, there are some practices that are unique to domestic violence courts.
Because a domestic violence court is considered a specialty court, the only cases heard in a domestic violence court are those related to domestic violence. What constitutes domestic violence tends to differ from state to state, as some courts include only current intimate partners, while others include former intimate partners, same-sex intimate partners, or domestic violence between family members. Also, the time when a case arrives at a domestic violence court differs among states. Some cases may start at a domestic violence court, while others will be moved to a domestic violence court after a first appearance or a bond hearing in a municipal court. The judge or judges that work in domestic violence courts typically specialize in domestic violence. In addition, these courts may work on a full-time, part-time, or seasonal basis. The number of judges and scale of operation is based on the resources and the number of cases the court receives. While the operations of domestic violence courts range from city to city, they all share unique common goals. For purposes of this essay, domestic violence courts are best defined as those that handle domestic violence cases on a separate calendar or assign domestic violence cases to one or more dedicated judges or judicial officers.
One advantage of a specialty court is the ability to properly manage caseloads better than regular courts because the number of cases is smaller in specialized courts. Therefore, the time it takes cases to go from case filing to disposition decreases. For domestic violence cases, faster processing makes victims safer rather than having to wait during each step of the criminal justice process.
Prior to domestic violence courts the multiple players in each case, including victim advocacy groups, child welfare agencies, law enforcement, and courts, had been disconnected. Domestic violence courts allow the players to communicate and coordinate issues surrounding the cases more effectively. As a result, the individuals involved in the case get a more personalized outcome of what is needed to stop the domestic violence in the relationship.
Traditionally, domestic violence has not been a major concern in the judicial system. As a result, one of the biggest challenges facing domestic violence courts is the lack of resources and funding. As a specialty court, it requires its own funding and resources to operate—yet many, if not most, are underfunded. One noticeable consequence is that victims’ advocates continually express criticism of the lack of protections available to victims and prefer that perpetrators be held accountable to a more appropriate level.
While domestic violence courts allow for a quicker response to domestic violence cases, once a case reaches the courtroom victims may decide that they no longer want to pursue criminal charges against their abusers. This creates a dilemma as some prosecutors will continue to charge a case in the absence of victim cooperation, despite knowing that the best “evidence” in a domestic violence case is the testimony of determined victims. It is important for prosecutors, who hold all the power in the discretion to charge, to understand the dynamics involved in a domestic violence relationship and to carefully consider the consequences of prosecuting an abuser in the absence of the victim.
One reason victims of domestic violence may be reluctant to involve the criminal justice system in their relationship is fear of the repercussions stemming from an abuser bent on retaliation and vengeance. The emergence of therapeutic jurisprudence may be a viable alternative to address this issue. A therapeutic approach can adjudicate disputes without the fear of the negative labels associated with a criminal trial process often characterized as too adversarial, divisive, and punitive. The main premise of therapeutic jurisprudence is recognizing the emotional and psychological impact the law has on individuals. To minimize its negative impact, therapeutic jurisprudence recognizes the law can act as a therapeutic agent for healing, restoration, and even reconciliation. Moreover, therapeutic jurisprudence recognizes the importance for courts to examine the costs and benefits of enforcing the law. In domestic violence courts, therapeutic jurisprudence is a useful avenue to pursue alternative means of handling disputes and punishing abusers.
Instead of the traditional sentencing by judges, which brings negative labeling upon abusers, a judge can order the abuser to attend a batterer intervention program. Some batterer intervention programs are able to identify the bigger issues underlying abusive behaviors that might obviate a need for incarceration and other punitive sanctions. When victims are aware that abusers are court-mandated into treatment they might be more inclined to report domestic violence and to assist in prosecuting their case.
Finally, there is much to say about prosecutors who threaten to subpoena victims who are reluctant to testify. When this is done, it is reasonable to question whose interests are being served. At what point does a victim’s safety become secondary to securing a conviction? Some have viewed this scenario as a prime example of victims being used as pawns—sacrificial lambs in a chess game in which the state makes the first discretionary move (to process the case). It is inconceivable that all abusers will abandon their abusive behaviors (including stalking and threats) and simply leave the victim alone. Assuming this is the case, most states are not in a position to either provide round-the-clock protection or assure victims that they are safe from future retaliation. At the same time, the certainty of prosecution, conviction, and punishment cannot be compromised because of the perceived threats of some abusers. Striking a delicate balance between these two outcomes is never easy to accomplish, but in the least it has to be foremost in the minds of attorneys and judges when processing cases through domestic violence courts.
- Berman, Greg and John Feinblatt. Good Courts: The Case for Problem-Solving Justice. New York: The New Press, 2005.
- Keiitz, S. “Specialization of Domestic Violence Case Management in the Courts: A National Survey.” National Institute of Justice (1994). https://www.ncjrs.gov/pdffiles1/nij/199724.pdf (Accessed March 2013).
- Mazur, R. and A. Liberty. “What Makes a Domestic Violence Court Work? Lessons from New York.” American Bar Association’s Judges’ Journal (2003). http://www.courtinnovation.org/sites/default/files/ whatmakesdvcourtwork.pdf (Accessed March 2013).
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