Family Violence: Court Functions and Responses

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Family Violence Court Functions and Responses

• Michelle L. Meloy, Ph.D.

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Family Violence in the Court System

• Criminal justice system has 3 major components
• Changes in one area affect another More arrests
  more cases referred to prosecutors office
• Prosecutorial authority to amend, dismiss or file
  criminal charges in court - Has discretion been
  relocated?
• If increased prioritization on arrests are not
  matched with similar priorities by the
  prosecution complications

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Policing changes flood the courts

• Minneapolis police changed policy to mandatory
  arrest for domestic violence
• Courts experience case backlog, time to
  disposition increase, convictions declined,
  pretrial crimes increased, victim satisfaction
  dropped

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Prosecutorial realities

• Prosecutors not victims- make final decision as
  to what, if any, charges are filed
• Resources allocated to the crimes that are
  prioritized (i.e., drug crimes)
• Social perceptions of domestic violence as
  private matter have impacted court processing of
  dv cases

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Prosecutorial realities

• Lack of targeted resources result in increased
  pressure to resolve cases quickly
• Courts continue to view crimes between known
  persons as less serious
• DV crimes often classified as misdemeanors with
  little regard for seriousness of violence

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Prosecutorial realities

• Victim attrition rates are often high
  complicating prosecution efforts
• Court specialization is a growing trend in
  domestic violence crimes

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Prosecutors Victims

• Victims seldom consulted by prosecutors re case
  outcome desires
• Prosecutors report many complications working
  with dv victims (continued relationships, on/off
  with restraining orders, etc)
• When victim preferences are inconsistent with
  larger goals of criminal justice system (i.e.,
  rehabilitation/treatment instead of punitive
  sanctions and/or deterrence) they are seldom
  honored

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Prosecutors battle

• How do you balance victim empowerment concerns
  with the realities of present danger in a violent
  relationship?

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Prosecution Realities for victims

• Prosecution often comes at a high price
• Safety, economic retaliatory concerns
• Direct and indirect financial consequences
• Custody of children can be at risk along with
  other child related threats made by offender
  (i.e., you will never see your kids again...)

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Prosecution Realities for victims

• Victims self-blame, guilt and doubt
• Relationship may cycle back to the honeymoon
  stage
• Victim has left the relationship and wants to
  move on
• Prosecutions goals and victims goals are often
  in conflict

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Mandatory Prosecution

• Concept of forging ahead with dv cases even w/out
  victim cooperation
• Conflicts can arise between victims security
  interests the states desire for deterrence
• Does it increase or decrease spousal homicide?
  Results are mixed
• Are victims in the best position to assess their
  level of risk and the level of risk to other
  potential victims?

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Mandatory prosecution competing interests

• Prosecutors primary concern is for the well
  being of the state, not an individual victim
• Specific deterrence abusers must be officially
  sanctioned, punished treated
• General deterrence potential abusers must learn
  this is a serious crime with serious repercussions

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Mandatory Prosecution

• Hard no-drop policies prohibit victims from
  dismissing a case
• Require victim cooperation/testimony with the
  possibility of legal sanctions against victims

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Forced Participation?

• What is likely to happen if you force victims to
  cooperate with a prosecution that they dont want
  to be involved with?

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Mandatory Prosecution

• Soft no-drop policies request but do not
  require victim involvement in the prosecution
  process
• All types of mandatory policies decrease case
  dismissals attrition

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Mandatory Prosecution

• Effectiveness issues unanswered
• Some support for the use of soft-drop policies
  Indianapolis found women who were allowed to drop
  their charges experienced less violence than
  those victims not allowed to drop charges
• Victim empowerment potential

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Prosecution options

• Dismissal
• Charge enhancements
• Plea arraignments
• Use of victim advocacy
• Diversion-mediation programs w/treatment
• Mandatory penalties
• Probation usually w/mandatory treatment(s)

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Charging decisions

• Prosecutors often consider the following legal
  factors to determine case seriousness
• extent of the injuries
• intention of the offender
• use of a weapon
• threats made to victim and other family members
• prior history of violence
• abusers use of substances
• abusers state of mind
• What extra-legal factors are influential in how
  prosecutors proceed with domestic violence cases?

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Victim advocates

• Demonstrate concern for victims experience with
  prosecution
• Provide information support about prosecution
  process
• Research suggests that victim advocates 1) reduce
  case attrition 2) increase victim satisfaction
  w/the prosecution process, and 3) feelings of
  victim empowerment
• Programs can be in conflict with victim needs if
  housed within prosecution departments

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Mediation

• Informal case processing w/ mediator skilled in
  conflict resolution
• Agreements can avoid case filings, court delays,
  and secondary role for victims
• As court congestion increases so has mediation
  practices
• Underlying assumption equal power, safe secure
  process where both parties can express concerns
  and desires

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Mediation

• Common practice in divorce and custody cases
• Family violence is common among these cases
• How does a victim ever feel safe to mediate
  effectively?
• Is victim safety comprised with mediation?

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Family Violence Mediation pros/cons

• Victim empowerment because they are a central
  party
• Provides alternative for victims who do not
  desire prosecution
• Educates both parties about legal rights
  responsibilities
• Individualized justice tailored agreements
• Participant satisfaction

• No clear offender
• Allows abuser to avoid responsibility criminal
  prosecution
• May reinforce ideas that victims at fault
• May be impossible to equalize power
• Mutual agreement highest priority
• Violence may continue or escalate as contact
  increases

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Batterer Treatment

• Began as specialty in the 1970s
• Today, there are hundreds of batterer programs in
  existence
• Most programs are short-term
• Most programs utilize a group-setting modality
• Nearly all men who attend the programs are
  court-mandated to do so
• Child protective services, courts, probation make
  referrals

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Batterer Treatment

• Treatment ideologies vary based upon what is
  believed to case male-on-female violence
• Duluth Model is the most common
• mens power control issues are believed to be
  the cause of most IPV
• changing attitudes about men women
  (resocialization),
• changing the concepts of masculinity
• unlearning violence as a resolution strategy

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Psychological/Psychiatric Batterer Treatment

• Cognitive-behavior modification therapy
• Deconstruct faulty thinking and cognitive
  distortions Reinterpret the event (stimuli) and
  find non-violent alternatives to resolve
  conflict
• Other therapeutic goals
• Anger stress management
• Impulse control
• problem-solving skills
• Substance abuse
• Depression

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Psychological/Psychiatric Batterer Treatment

• Cognitive-behavior modification therapy
• Deconstruct faulty thinking and cognitive
  distortions Reinterpret the event (stimuli) and
  find non-violent alternatives to resolve
  conflict
• Other therapeutic goals
• Anger stress management
• Impulse control
• problem-solving skills
• Substance abuse
• Depression

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Psychological/Psychiatric Batterer Treatment

• Couples-Family Systems Approach
• Rationale Not clinical but the preservation of
  marriage preservation
• Least popular (accepted) with clinicians and
  practitioners (73 of states with stated
  standards note this treatment as unacceptable)
• The marital dynamic (and whole family) is viewed
  as part of the problem and thus part of the
  solution (no clear offender or victim)
• May be acceptable at the earliest stages of
  abuse, low-level violence and the victim is not
  fearful

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Batterer Treatment Research

• IPV offenders are believed to be especially
  difficult to treat
• Outcome studies are plagued with methodological
  problems
• poor outcome /or inconsistent measures
• random assignment has been difficult to obtain
• high attrition rates in treatment (drop outs)
• short follow-up periods
• lack of reporting for recidivistic behavior

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Batterer Treatment Outcomes

• Drop outs have higher recidivism rates than
  treatment completers
• Predictions of drop-out undereducated,
  unemployment, no court mandate, substance abuse
  problems
• 2001-2002 experimental design research on the
  Duluth type models suggests a reduction in
  recidivism where earlier studies did not

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Improvements for batterer treatment?

• Most likely to be effective if used in
  conjunction with other criminal justice measures
• Individualized triggers incorporated into
  treatment protocol
• Increase duration of therapy

• Specialized domestic violence prosecution
  parole officers
• Effective cj processing in the event of failure
  in treatment or continued violence

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Restraining orders

• Civil court remedy to domestic violence usually
  requested as part of a criminal prosecution
• Designed to prevent future violence
• No-contact orders can be temporary or long-term
  and only require proof of allegations
  preponderance of the evidence

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TRO may include

• No contact with the victim either in person by
  phone or mail, etc
• Restrictions on contact or visitation with minor
  children
• Mandate to leave family residence
• Exclusive use of x property given to victim

• A list of addresses that the offender may not
  visit within x feet
• Prohibitions against stalking or any intimidating
  behaviors

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Advantages to restraining orders

• CJS can respond immediately unlike delays with
  prosecution
• Offer protection beyond the short period of time
  that a defendant is in jail
• Can prevent abuse from escalating
• Victim empowerment and official recognition that
  abuse will not be tolerated
• Does not carry the same costs for victims as does
  prosecution
• Less likely to negatively impact offenders
  employment or employability than traditional
  prosecution
• Decrease in violence w/ certain offending
  populations under strict conditions

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Limitations to restraining orders

• Merely a paper shield ?
• Does not go into effect until abuser served, they
  may avoid this
• Not effective at deterring serious offenders
• Abuse may escalate or shift from physical assault
  to stalking or other forms
• Victims who live in poor communities may have
  increased risk of victimization
• Lack luster law enforcement of violations
• Abuse of restraining orders by victims

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Changing court practices

• No-drop prosecution
• Specialized units
• Victim advocates
• Criminal charges against victims
• Court sponsored Mediation
• Batterer treatment
• Restraining orders
• How effective are these policies?
• How should we define success?