Judges, on all benches and in every state of our nation, have a critical role in the battle against domestic violence. Federal and state laws authorize courts—in both civil and criminal proceedings—to protect victims and their children and to hold batterers accountable. When victims and batterers appear in court, judges have the unique ability to reinforce the seriousness of these laws and to send the clear message that our society does not condone and will not tolerate interpersonal violence. This article discusses some of the more insidious aspects of domestic violence and how judges can make a difference.
Domestic Violence Is Pervasive
Domestic violence is most commonly understood as a “pattern of assaultive and coercive behaviors, often including physical, sexual and psychological attacks, as well as economic coercion that adults and adolescents use against their intimate partners.”6
Domestic violence is not confined to abuse by adult perpetrators against adult victims. Abuse by or against minors in dating relationships is increasingly pervasive across the nation.7 Sadly, domestic violence also regularly occurs along with child abuse and maltreatment.8 And an increasing number of studies—including the well-known Adverse Childhood Experiences (ACE) Study from the Centers for Disease Control and Prevention (CDC)—reveal that children exposed to domestic violence between adults are more likely to exhibit both short- and long-term impacts to their health, safety, and welfare.9
Moreover, domestic violence is not confined to abuse by a male perpetrator against a female victim. While women are primarily the victims of domestic violence, male victims are not uncommon: In fact, one in four women and one in seven men report experiencing interpersonal violence in their lifetime.10 And, in lesbian, gay, bisexual, transgender, and queer (LGBTQ) relationships, interpersonal violence occurs at a rate similar to that in heterosexual relationships.11 However, even though both women and men—regardless of sexual orientation—experience interpersonal violence, an estimated 85 to 95 percent of perpetrators are male.12
Domestic Violence Is Deadly
On average, four women die every day in the United States as a result of domestic violence.13 But it is critical to recognize that domestic violence, and in particular domestic violence homicide, is not the result of a single incident where the batterer loses control. Rather, domestic violence “is a process of delicate intimidation intended to coerce the victim to do the will of the victimizer.”14 Domestic violence homicides are often “the culminating event in a long history of violent interpersonal tensions.”15 And, notably, victims of domestic violence are more likely to suffer severe physical violence or homicide at the hands of an intimate partner after separation or divorce.16 Separation signals to the batterer that he or she no longer controls the victim and, as a result, the batterer is more likely to increase physical abuse to regain control.
While every form of physical violence is dangerous, and must be taken seriously, there are some forms of physical violence and intimidation tactics that—when used against an intimate partner—indicate a high degree of lethality.
Strangulation is a commonly used form of violence that—while often minimized by the batterer, victim, and criminal justice system17—is a particularly dangerous form of violence indicating a substantial risk of death.18 When used against an intimate partner, strangulation sends a clear message that the batterer—quite literally—holds the victim’s life in his or her hands. Studies from 2001 and 2003 found that strangulation accounts for 10 percent of violent deaths in the United States annually.19 And, even if strangulation is not the cause of death, it often signals escalation of abuse: 43 percent of domestic violence homicide victims had been strangled by their batterers in the year preceding their death.20 A victim can lose consciousness within 10 seconds with as little as 8–11 pounds of pressure exerted by the batterer.21 Increased pressure extending past 30 seconds may result in temporary or permanent brain damage, involuntary urination or defecation, and memory loss; and in just 4–5 minutes, a victim of strangulation may die.22
A batterer’s use or threatened use of a firearm is an equally dangerous form of abuse that dramatically increases the likelihood of severe physical violence or homicide. Firearms are the weapons of choice among batterers who kill their victims. In fact, intimate partners are more likely to be murdered with a firearm than all other methods combined.23 A study of batterers between 1999 and 2003 found that gun ownership is highly correlated with using a firearm to threaten an intimate partner and exponentially increases the likelihood that the relationship will end in a homicide.24
Federal and state policy makers understand that firearms increase the likelihood of a domestic violence fatality and have passed laws that limit abusive intimate partners’ access to firearms. But enforcement of these laws is often lax and loopholes—such as third-party safekeeping provisions—allow batterers to access a firearm.
What Judges Can Do
- Encourage community use of Lethality Assessment Protocols designed to assist law enforcement in assessing the risk of lethality to a victim and providing the victim direct contact with local domestic violence service providers.
- Treat strangulation—which is often called “choking”—as the life-threatening crime that it is. Ask questions to fully understand what occurred and the injuries that a victim sustained.
- Require defendants to surrender firearms to law enforcement as a condition of bail in criminal actions or in protection order cases.
- Do not blame the victim for staying. Instead, communicate to the batterer that he or she is to blame for the abuse and will be held accountable.
The decision to leave an abusive relationship often takes careful planning to ensure the safety both of victims and of their children. Batterers employ a range of tactics, including physical and emotional abuse, financial control, stalking, and threats to compel their victim to return. Other factors—including love for the batterer, shared parenthood, and pressure from family members and religious or cultural community members—add further complexity to victims’ decisions.
Ultimately, victims are successful at separating from abusive partners when the community as a whole provides them with support and assistance.25 But the legal community often fails in this respect. If a victim comes to the court for help and is met with disbelief, frustration, or unsafe exposure to the batterer, she or he is unlikely to return for help in the future. As the American Bar Association explains, prior negative experiences with the justice system are often cited as the reason a victim stays with or returns to a batterer.26
Protection Orders Are Effective Tools That Save Lives
Civil protection order statutes provide courts with the necessary tools to protect victims of domestic violence and their children. Currently, all 50 states and the District of Columbia have civil protection order laws in place.27 Pennsylvania’s Protection from Abuse Act was one of the very first protection order statutes in the nation and has been described as a vanguard measure,28 the purpose of which is to prevent abuse, including physical and sexual abuse.29 Because the purpose of a protection order is to provide civil relief to prevent future abuse or criminal behavior, the requisite burden of proof is lower than in criminal court.30
Most protection order statutes provide a wide variety of relief to victims to help stop the abuse. In Pennsylvania, for example, a judge can prohibit the batterer from abusing, stalking, or harassing the plaintiff and/or minor children; grant the plaintiff exclusive possession of a shared residence; provide the plaintiff with alternative housing at the expense of the batterer; issue an order for temporary child custody and/or financial support; require the batterer to surrender firearms; and award damages to the victim for reasonable losses, such as medical costs, property damage, or lost wages.31 The available relief and method of enforcement for protection orders vary from state to state, but, on the whole, protection orders are effective in protecting victims of domestic violence and their children. A recent study of Kentucky’s protection order system found that for most women “protective orders reduce violence and save the state millions of dollars of avoided costs.”32
Key to the uniform enforcement of protection orders is the full faith and credit provision of the Violence Against Women Act, originally passed in 1994, which explicitly requires each state, tribal government, the District of Columbia, and all territories, commonwealths, and possessions of the United States to give full faith and credit to protection orders issued in any U.S. jurisdiction.33 So, if a victim obtains a protection order in Ohio and moves to Nevada, the courts in Nevada must enforce the provisions set forth in the victim’s order, including those provisions of relief that Nevada law does not authorize. The full faith and credit provision increases the utility and effectiveness of protection orders to prevent further violence by the batterer.
What Judges Can Do
- Incorporate clear and precise terms in protection orders, especially if the order includes financial or child custody relief and/or property retrieval. The use of vague terms thwarts enforcement efforts and creates opportunities for the batterer to further contact, abuse, stalk, or harass a victim.
- Order any and all relief available to end the abuse and assist the victim in achieving self-sufficiency, including financial and/or child custody provisions. Prohibiting a batterer from contacting or abusing a victim may not be enough to enable a victim to end the abusive relationship.
- Order the surrender of firearms, when authorized. The federal gun control act prohibits those defendants with a qualifying protection order from possessing a firearm for the duration of the order.36 Furthermore, federal law imposes a lifetime ban on possessing firearms on any person convicted of a misdemeanor crime of domestic violence.37
- Don’t tolerate or minimize protection order violations. When violations are not taken seriously, judges reinforce the power of the batterer.38 Each escape from punishment for violating a court order emboldens the batterer and can lead to further violations and escalated violence.
Domestic Violence Impacts Children
Approximately 15 million children are exposed to domestic violence each year.39 Such exposure can have an immediate and lasting impact on a child’s physical and mental health that often persists into adulthood. Developmental regression, behavioral problems, sleep or anxiety disorders, and post-traumatic stress are common in children so exposed.40
Children are also often the direct targets of abuse: The Department of Justice reports that as many as 60 percent of domestic violence perpetrators also abuse their child or other children living in the home.41 Even when the child is not the direct target of abuse, she or he may be injured during a violent incident or while attempting to intervene.42
When parenting, batterers regularly undermine the authority of the victim parent and suggest to the children that the other parent is unworthy of respect.43 If a victim parent is able to separate from an abusive parent, children are often used to monitor the victim parent’s activities or to deliver explicit or implicit messages to the victim parent in an attempt to exert ongoing control. And, without the victim parent’s presence to divert the batterer’s attention, a batterer with unsupervised custodial time may abuse the children—even if the batterer did not abuse the children before the separation.44
Research suggests that children who experience or are exposed to domestic violence are more likely to be victims or perpetrators of domestic violence in adulthood.45 Girls are more likely to become victims, and boys are more likely to become adult perpetrators.46 This research leads to the undeniable conclusion that protecting children and promoting child resiliency are key to eliminating domestic violence.
What Judges Can Do
- Look beyond physical injury to focus on the significant toll that domestic violence takes on children by permitting testimony in child custody proceedings about abuse that may not involve a physical incident.47 A single physical assault or palpable threat of harm is enough for the batterer to exercise abusive control that can cause lasting harm.
- Recognize how domestic violence changes the context of the actions of the parties. For example, “a mother who avoids phone contact with a abusive former partner may be seen to be neglecting her duties from information sharing about the children’s activities; however, within the context of domestic violence, this same behavior can be understood as an attempt to protect herself and her children from further harassment and abuse.”48
- Understand that batterers often present themselves in public—and particularly before the courts—as charismatic and cooperative parents, and perform well under observation.49 This is part and parcel of domestic violence, which hinges on the batterer’s control.50 To further flush out the true nature of the abusive parent, courts should51
- Be trauma-informed by recognizing that an abused parent may seem frazzled, uncooperative, or even hysterical when she or he comes before the court in a child custody or protection order proceeding. Hyper-vigilance and anxiety are common traits exhibited by victims of trauma and are further exacerbated or “triggered” by the presence of the batterer and/or the pressure of ensuring that the children are protected from further harm.
- Ensure that children and abused parents are as safe as possible by including provisions in child custody and protection orders that promote safety. For example:
Domestic Violence Is Costly
Domestic violence not only takes a severe toll on the individual victim and the victim’s children and family, but it also takes a substantial financial toll on our communities. Family violence costs the nation between $5 billion and $10 billion annually in medical expenses, police and court costs, shelters and foster care, sick leave, absenteeism, and lost productivity.52 Annually, lost productivity as a result of domestic violence costs our economy approximately $727.8 million and an estimated 7.9 million paid workdays, which equates to approximately 32,000 full-time jobs.53 The CDC estimates that the cost of intimate partner rape, physical assault, and stalking totaled $5.8 billion each year for direct medical and mental health care services and lost productivity from paid work and household chores.54
Domestic violence is also a leading cause of homelessness for victims and their children. One study that examined homelessness in regions across the nation revealed that nearly 60 percent of homeless women reported domestic violence to be the immediate cause of their homelessness.55 The intersection between homelessness and domestic violence is attributable to a multitude of factors that prevent victims from accessing safe, stable housing. Inadequate housing and shelter options, discrimination, and poverty exacerbate a victim’s plight.56 Even if a survivor finds a suitable place to live, housing providers often refuse to rent when they learn that the person is a domestic violence victim because they want to avoid “nuisance” activity.57
What Judges Can Do
- Condition bail, probation, or parole on no contact with the victim, including at the victim’s place of employment.
- Prohibit protection order defendants from contacting victims at their place of employment.
- Include exclusive possession provisions or alternative housing provisions for victims of domestic violence to ensure that they—and potentially their children—are not homeless.
- Award damages to the victim for property destruction and medical costs.
- Require the batterer to pay for the victim and the victim’s children to obtain counseling and/or therapy.
- Do not order eviction of a victim of domestic violence for incidents of abuse that occurred at a rental property. Evicting a victim of domestic violence, simply based on his or her status as a victim, is contrary to the Violence Against Women Act and disproportionally impacts women, in violation of the constitutional guarantee of equal protection, because women are significantly more likely to be the victim of domestic violence than men.
Abuse Uniquely Impacts Underserved Populations
Tactics a batterer uses against a victim may vary, depending on the nationality, culture, socioeconomic class, religion, sexual orientation, or gender of the victim and batterer. The main goal of the abuse, however, remains the same—to gain and maintain power and control over the victim. For example:
- Abusive teenagers often use technology, such as location monitoring, social media, and text messaging, to keep track of their victim’s whereabouts.
- Immigrant victims of domestic violence often report being isolated from communities that speak their native language, threatened with deportation, forbidden from working, or forced to work without work authorization. Batterers also may destroy or hide immigration papers.
- Victims of domestic violence in later life, and victims with a disability, often say their batterer withholds medications or treatment and/or refuses to take them to necessary appointments.
- LGBTQ victims often report that they were unable to seek help because their batterer threatened to reveal their sexual identity to their employer, friends, and/or family.
What Judges Can Do
For immigrant victims:
- Do not condition access to the courts on immigration status. In most nonimmigration court settings, the litigant’s status is irrelevant. Immigrant victims of domestic violence have the right to be protected by criminal laws and to seek civil relief from the courts. The Violence Against Women Act provides several avenues for a foreign-born victim to obtain status, including the ability to petition for status if the batterer is a U.S. citizen or legal permanent resident, or if the victim is a victim of crime or trafficking and cooperates with law enforcement in his or her case.58
- Ensure the availability of qualified interpreters for victims with limited English proficiency, even if the victim brings a friend or family member with him or her to court who also speaks the victim’s language. The interests of family and friends are not always aligned with the interests of the victim. Relationships with both the victim and the batterer or cultural or religious pressure to prioritize family unification may infuse subtle or overt bias into the interpretation.
- Order the batterer to return important documents such as immigration forms, birth certificates, and passports as a condition of bail or probation or as relief in a protection order.
For teen victims:
- Explicitly prohibit batterers from contacting, abusing, stalking, or harassing victims through social media or by phone, e-mail, instant messages, or other electronic communications.
- Address the issue of teens attending the same school and direct the batterer to request that the school make changes to his or her class schedule and/or locker location in order for the batterer to comply with the protection order.
For victims in later life:59
- Treat older victims as adults and with care and respect.
- Recognize that a batterer of an older victim may also be the victim’s caregiver.
- Be alert to justifications that blame the victim for his or her injuries, e.g., accidents, “she’s clumsy”; caregiver stress, “he’s hard to care for”; faulty memory, “she’s confused” or “he forgot.”
- Ensure that court practices and relief issued by the court address the physical, financial, and emotional safety of the older victim.
For LGBTQ victims:60
- Treat violence in LGBTQ relationships as seriously as violence between heterosexual partners.
- Recognize that additional complexities can arise in states where the law does not legally recognize the LGBTQ relationship, e.g., difficulties with child custody, excluding the respondent from the home, or allocating property.
- Mutual orders of protection should only be entered when both parties file an individual petition for relief and meet their burden of proof for obtaining a final order.
The battle to end domestic violence will not be won by the work of any one group but only if every group commits to fulfilling its role. Law enforcement responds directly to the crisis, arrests batterers for criminal actions, and ensures that victims obtain information about where they can seek help. Victim service providers offer immediate and ongoing help and safety for victims who need shelter, counseling, and to know their options. As a judge, you can assert the court’s protection for victims and hold batterers accountable under the law. Judges serve in a powerful forum, the court; wield a powerful tool, the law; and have the ability to use that power to clearly send the message that domestic violence must not continue and as a society we will not tolerate it.
1. Phil Ray, Police: Dad Kills Self, Son, Altoona Mirror (Altoona, Pa.), Mar. 24, 2013.
2. John Johnson, 1 in 3 Women Victim of Domestic Abuse: Studies Look at Problem Worldwide, Newser (June 20, 2013), http://www.newser.com/story/169816/1-in-3-women-victim-of-domestic-abuse.html.
3. Sarah Sell & Chris Zoladz, Woman Plays Dead After Beating to Save Her Life, USA Today (Mar. 5, 2013), http://www.usa today.com/story/news/nation/2013/03/05/woman-plays-dead/1965477/.
4. Lacie Lowry, Man Arrested, Accused of Kidnapping, Beating OKC Woman, News9 (Okla.) (Oct. 4, 2013), http://www.news9.com/story/23615190/man-arrested-accused-of-kidnap ping-beating-okc-woman.
5. Nick Needham, Woman Fatally Struck by Semi After Being Kidnapped, Stabbed by Ex-Boyfriend, WBTV.com (Gaston, N.C.) (Aug. 15, 2013), http://gastoncounty.wbtv.com/news/news/107792-woman-fatally-struck-semi-after-being-kidnapped-stabbed-ex-boyfriend.
6. Susan Schechter & Jeffrey L. Edleson, Nat’l Council of Juvenile & Family Ct. Judges, Effective Intervention in Domestic Violence & Child Maltreatment Cases: Guidelines for Policy and Practice 9 (1999).
7. Dating Violence 101, Break the Cycle, http://www.breakthecycle.org/dating-violence-101.
8. Schechter & Edleson, supra note 6. Up to 60 percent of domestic violence perpetrators also abuse their children. Id.
10. Statistics, Nat’l Domestic Violence Hotline, http://www.thehotline.org/is-this-abuse/statistics.
11. Domestic Violence in the LGBT Community: A Fact Sheet, Ctr. for Am. Progress (June 14, 2011), http://www.americanprogress.org/issues/lgbt/news/2011/06/14/9850/domestic-violence-in-the-lgbt-community/.
12. Leigh Goodmark, Nat’l Council of Juvenile & Family Ct. Judges, Reasonable Efforts Checklist for Dependency Cases Involving Domestic Violence 12 (2008).
13. Bureau of Justice Statistics, U.S. Dep’t of Justice, Domestic Violence/Abuse Statistics, Statistic Brain (June 28, 2013), http://www.statisticbrain.com/domestic-violence-abuse-stats/.
14. Ann Jones, Next Time, She’ll Be Dead: Battering and How to Stop It 88 (1994).
15. Ann Goetting, Female Victims of Homicide: A Portrait of Their Killers and the Circumstances of Their Deaths, 6 Violence & Victims 163 (1991).
16. C.R. Block, Nat’l Inst. of Justice, Risk Factors for Death or Life-Threatening Injury for Abused Women (2004), available athttp://www.ncjrs.gov/pdffiles1/nij/199732.pdf.
17. See Nancy Glass et al., Non-Fatal Strangulation Is an Important Risk Factor for Homicide of Women, 35 J. Emerg. Med. 329 (2008). Many states do not have a separate crime for strangulation because strangulation typically lacks physical evidence corresponding to the severity of the crime. Heather Wolfgram, The Impact of Minnesota’s Felony Strangulation Law (2007). Rather than charging perpetrators with attempted murder or aggravated assault, which would appropriately match the threat of injury that strangulation poses, perpetrators who strangle their victim are most often charged with a simple assault. Id.
18. Minn. Coal. for Battered Women, Facts About Intimate Partner Strangulation (2009) (citing Maureen Funk & Julie Schuppel, Strangulation Injuries, 102 Wis. Med. J. 41 (2003); George McClane, Gael Strack & Dean Hawley, A Review of 300 Attempted Strangulation Cases: Parts I, II, & III, 21 J. Emerg. Med. 303 (2001)).
21. Id.; see alsoImportant Facts, Training Inst. on Strangulation Prevention, http://www.strangulationtraininginstitute.com/index.php/important-facts.html.
22. Minn. Coal. for Battered Women, supra note 18; Training Inst. on Strangulation Prevention, supra note 21.
23. Violence Policy Ctr., When Men Murder Women: An Analysis of 2008 Homicide Data (2010), available at http://www.vpc.org/studies/wmmw2010.pdf.
24. E. Rothman et al., Batterers’ Use of Guns to Threaten Intimate Partners, 60 J. Am. Med. Women’s Ass’n 62 (2005).
25. Comm’n on Domestic & Sexual Violence, Am. Bar Ass’n, Why Abuse Victims Stay: Breaking the Silence: Journeys of Hope: Guide to Community Outreach (2001), available athttp://www.americanbar.org/content/dam/aba/migrated/publiced/whystay.authcheckdam.pdf.
27. Comm’n on Domestic & Sexual Violence, Am. Bar Ass’n, Domestic Violence Civil Protection Orders (CPOs) by State (2011), http://www.americanbar.org/content/dam/aba/administrative/domestic_violence1/Resources/statutorysummarycharts/Domestic/DV_CPO_Chart_7_2011.authcheckdam.pdf.
28. Cipolla v. Cipolla, 398 A.2d 1053, 1054 n.1 (Pa. Super. 1995).
29. Fonner v. Fonner, 731 A.2d 160, 161 (Pa. Super. 1999).
30. 23 Pa. Cons. Stat. § 6107(a) (2014).
31. Id. § 6108(a)(1)–(10).
32. TK Logan et al., The Kentucky Civil Protective Order Study: A Rural and Urban Multiple Perspective Study of Protective Order Violation Consequences, Responses, and Costs 154 (2009), available at https://www.ncjrs.gov/pdffiles1/nij/grants/228350.pdf.
33. 18 U.S.C. § 2265 (2006).
34. About Financial Abuse, Nat’l Network to End Domestic Violence, http://nnedv.org/resources/ejresources/about-financial-abuse.html (“Research indicates that financial abuse is experienced in 98% of abusive relationships.”).
35. Schechter & Edleson, supra note 6.
36. 18 U.S.C. § 922(g)(8) (2011).
37. Id. § 922(g)(9).
38. SeeJames Ptacek, Battered Women in the Courtroom: The Power of Judicial Responses, ch. 8 (1999) (Battering and Judicial Responses).
39. Adverse Childhood Experiences (ACE) Study, Ctrs. for Disease Control & Prevention, http://www.cdc.gov/ace.
40. Ptacek, supra note 38, at 87.
41. Jeffrey L. Edleson, The Overlap Between Child Maltreatment and Woman Battering, 5 Violence Against Women 134 (1999).
42. Ptacek, supra note 38, at 83.
43. Lundy Bancroft & Jay Silverman, The Batterer as Parent: Addressing the Impact of Domestic Violence on Family Dynamics 33–34 (2002).
45. See Carrie Moylan et al., Nat’l Inst. of Health, The Effects of Child Abuse and Exposure to Domestic Violence on Adolescent Internalizing and Externalizing Behavior Problems, 25 J. Family Violence 53 (2010).
46. See Id.
47. TK Logan et al., supra note 32, at 161.
48. Peter G. Jaffe & Claire V. Crooks, Assessing the Best Interest of the Child, inParenting by Men Who Batter 45, 54 (Jeffrey L. Edleson & Oliver J. Williams eds., 2007).
49. Bancroft & Silverman, supra note 43, at 36–37.
51. Id. at 150–71.
52. Bureau of Justice Statistics, supra note 13.
54. Nat’l Ctr. for Injury Prevention & Control, Costs of Intimate Partner Violence Against Women in the United States, Ctrs. for Disease Control & Prevention (2003), available athttp://www.cdc.gov/ncipc/pub-res/ipv_cost/ipvbook-final-feb18.pdf.
55. Nat’l Law Ctr. on Homelessness & Poverty, Lost Housing, Lost Safety: Survivors of Domestic Violence Experience Housing Denials and Evictions Across the Country 2 (Feb. 2007).
58. 8 U.S.C. § 1154(a)(1)(A)(iii)(bb) (2012) (VAWA self-petition for battered spouse or child); id. § 1101(a)(15)(T) (victims of trafficking); id. § 1101(a)(15)(U) (victims of crime).
59. Jane M. Sadusky, Nat’l Clearinghouse on Abuse in Later Life (NCALL), Response to Elder Abuse: A Self-Assessment Workbook for Courts (Nov. 2010, revised June 2011), available at http://www.ncall.us/content/self-assessment-workbooks.
60. Comm’n on Domestic & Sexual Violence, Am. Bar Ass’n, Standards of Practice for Lawyers Representing Victims of Domestic Violence, Sexual Assault and Stalking in Civil Protection Orders Cases 12 (2007), available athttp://www.americanbar.org/content/dam/aba/migrated/domviol/docs/StandardsofPracticeCommentary82407.authcheckdam.pdf.