Domestic violence courts are specialized to address the complex issues presented in domestic violence cases. These courts utilize approaches that reflect a significant departure from those of traditional courts. While no single model of a domestic violence court is used by all states, domestic violence courts across the United States share a similar philosophical orientation regarding their role and function. Rather than simply determining facts, applying the law, defending rights, and assigning punishment according to legal rules and procedures, these courts recognize that victim safety is as important as perpetrator accountability. As such, judges and court personnel need to be sensitive to such issues as the risk of future violence to the victim and her children, the victim’s fear and sometimes reluctance to testify, and the need to link victims to services in the community that will help them rebuild their lives, free from violence.
This research paper will discuss the formation of domestic violence courts by examining the unique features of domestic violence cases that led to their formation. It will also examine how domestic violence courts differ from traditional courts, especially in terms of their core principles. In addition, this research paper will describe three different models of domestic violence courts, analyzing the advantages and limitations of each. Finally, we will examine the major criticisms of domestic violence courts, focusing on problems with some of the programs typically used by them.
I. Unique Characteristics of Domestic Violence Cases
II. Core Principles of Domestic Violence Courts
III. Models of Domestic Violence Courts
IV. Criticisms of Domestic Violence Courts
Unique Characteristics of Domestic Violence Cases
Derived from English common law, the American legal system had a long tradition of regarding domestic violence as a private family matter, not subject to criminal prosecution. Early American courts held that husbands acted within their rights when they beat and abused their wives in response to what husbands described as their wives’ ‘‘misbehavior.’’ This view of domestic violence as a private family matter stemmed from a larger body of law and social custom that denied women a separate identity of their own. Indeed, the American legal system did not criminalize domestic violence until the late nineteenth century. It was not until 1871 that a state court, the Supreme Court of Alabama, in Fulgham v. State, determined for the first time that a husband did not have the right to beat his wife. In the years following this decision, several states began adopting laws against domestic violence that made wife beating a crime. Despite these laws, individual opinions held by judges and prosecutors regarding the appropriate role of law in private family matters frequently meant that courts did not enforce these laws.
In the 1970s, the feminist movement focused attention on battered women, leading to some changes in the criminal justice response to domestic violence. The attention drawn by the feminist movement to domestic violence resulted in legal reforms that emphasized the need for court intervention in these matters. The emphasis of these new reforms was on applying sanctions to the batterer through such measures as the enactment of civil order of protection statutes, criminal contempt orders to enforce protection orders, and laws mandating the arrest of batterers. State-funded shelters began to appear as well as batterer intervention programs. However, these reforms did not reduce the number of domestic violence cases.
Critics argued that the reason for the persistence of domestic violence could be explained in part by the limitations in the practices and procedures of traditional courts. One limitation was the inadequacy of orders of protection (restraining orders) to prevent further abuse. Orders of protection impose restrictions on a person’s future behavior. The order may require that there be no contact between the parties, order an abuser to relinquish any firearms, grant possession of a shared residence to the victim, and address such issues as child custody, visitation, and support. Often victims obtained orders of protection through the civil side of the legal system. Victims often appeared pro se because they lacked the financial resources to retain an attorney. While orders of protection represented an important legal remedy, they were not always the most effective means for preventing future violence. Research indicated that batterers often violated orders of protection, sometimes with tragic results, such as the murder of the victim and her children.
A second criticism directed at traditional courts concerns the inherent complexity of domestic violence cases. Domestic violence cases involve complex issues of family dynamics and emotional relationships between the parties. Many domestic violence victims have suffered previous attacks by their batterers, and there may be strong emotional ties between the victim and the batterer because of issues such as the victim’s economic dependence on the batterer and the likelihood that she will have continuing contact with him because of their children. However, criminal courts frequently processed domestic violence cases, especially low-injury or non-injury incidents, in the same manner that they handled other crimes, even though many low-injury domestic violence cases later escalated into high-injury or homicide cases that the legal system could have prevented with effective sanctions at the outset.
A third criticism of traditional courts concerns the barriers that victims encountered in attempting to have effective participation in the criminal justice system. Law enforcement and court personnel often viewed battered women as responsible for the crimes committed against them because they failed to leave the relationship after the batterer had previously harmed them. In addition, domestic violence victims were often reluctant witnesses against their batterers because they feared retaliation. Prosecutors were often reluctant or unwilling to prosecute batterers because of the unwillingness by the victims to cooperate or because of beliefs that women would only return to the abusive relationship.
A final criticism concerned the fragmented nature of the criminal justice system when confronted with domestic violence cases. The criminal justice system depends upon the effective coordination of law enforcement officers, court personnel, and judges. However, these personnel frequently display varied levels of motivation, training, and sensitivity to issues surrounding domestic violence. For example, while a court might demonstrate a willingness to prosecute domestic violence cases, police may be indifferent to responding to such calls or may be ineffective in responding to the needs of victims.
Core Principles of Domestic Violence Courts
Domestic violence courts reflect the growth of other specialty or problem-solving courts in contemporary society, such as drug treatment courts and mental health courts. Common to all problem-solving courts are the goals of solving underlying problems and avoiding a recurrence of criminal behavior. Problem-solving courts require a new view of the judicial process, one in which judges use their authority, in part, to motivate individuals to accept services and then to monitor compliance with them. Problem-solving courts typically focus on a defined population of offenders and rest on an assumption that it is pointless and an inefficient use of resources to send addicts, the mentally ill, and others with ongoing behavioral issues through a revolving door of incarceration and release. Problem-solving courts are also known as therapeutic courts because these courts view crimes and other dysfunctional behaviors as rooted in behavioral, emotional, and psychological disorders that will recur unless individuals address underlying problems.
Problem-solving or therapeutic courts originated in the late 1980s with the emergence of a legal perspective known as therapeutic jurisprudence. Arising originally from mental health law, therapeutic jurisprudence is a scholarly, interdisciplinary movement toward legal reform. The basic principle underlying therapeutic jurisprudence is that law is a social force that has inevitable and often unintended consequences for the mental health and psychological functioning of those it affects. These consequences may have either therapeutic effects that enhance an individual’s social functioning, or negative, anti-therapeutic effects. Scholars define ‘‘therapeutic’’ very broadly to include any effects that improve the psychological, physical, or emotional health of the person. The goal of therapeutic jurisprudence is to increase the therapeutic effects of the law while decreasing its anti-therapeutic effects. In order to accomplish this goal, therapeutic jurisprudence examines the costs and benefits of the law’s effect on the mental and physical health of an individual through a social science lens. It assesses the costs and benefits of enforcing laws by evaluating the overall consequences on individuals in society. This assessment should reveal whether laws are accomplishing their public policy goals.
Domestic violence courts are problem-solving courts that generally share many of the ideas embodied in therapeutic jurisprudence. However, one important difference is that domestic violence courts center on the principles of victim safety as well as defendant accountability and rehabilitation. This means that while domestic violence courts must uphold the basic principles of protecting defendants’ rights, providing a fair and impartial hearing as well as opportunities for rehabilitation, domestic violence courts also focus on providing avenues for the safety of victims and their children. Courts manifest this emphasis on safety by linking victims and their children to services while they are participating in the judicial process. This does not mean that the court acts as a direct service provider, but rather that the structure of the court enables it to link victims to advocates who can meet with victims to provide needed services, such as emergency shelter, counseling, economic assistance, legal assistance, and services for children. The services provided are noncompulsory; the emphasis is on victims determining their own needs. In addition to services, domestic violence courts keep victims informed about all aspects of the case, such as its status and the terms of an order of protection.
In order for courts to hold batterers accountable and attempt their rehabilitation, they must closely monitor defendants to ensure that they comply with all court conditions and that they face swift and certain consequences if they fail to do so. This requires that judges and other criminal justice personnel have accurate and up-to-date information concerning all issues that bear on the case, such as the defendant’s criminal history, whether the defendant is attending court-mandated programs, and any violations of an order of protection. Typically, domestic violence courts bring defendants back for regular review or status hearings during the duration of court proceedings. During status hearings, judges review reports to the court from agencies that traditionally monitor defendants, such as probation programs. Domestic violence courts also develop sentencing models for handling cases that will promote offender accountability. This can include sentences that contain court-ordered conditions and monitoring by agencies to ensure compliance with court-mandated conditions. This type of sentencing is especially important when the court does not incarcerate the batterer. For example, domestic violence courts can include such conditions as mandated participation in a batterers’ intervention program, parenting skills programs, and substance abuse treatment.
Domestic violence courts typically accomplish the goals of victim safety and offender accountability through coordinated community responses. The need for such responses grew out of the recognition that a significant lack of coordination and systemic response to intimate partner violence probably put many victims at greater risk because there were few standards, little consistency, and even less institutional accountability among agencies in a community. While coordinated efforts may take a variety of forms, they generally include a variety of system partners, including but not limited to judges and judicial officers, law enforcement, prosecutors, defense attorneys, advocates for children, victim advocates, shelter providers, corrections, probation, parole, and child protective services. Coordinated community responses typically embrace the following ideas. First, the emphasis is on community partnerships to develop effective work plans. Second, these efforts focus on providing community intervention projects that provide direct services to batterers from entry into to exit from the system. Third, task forces or coordinating councils provide assessments of community needs and recommendations for changes. Fourth, coordinated community responses provide mechanisms for training, technical assistance projects, and community initiatives. Ideally, successful, coordinated community responses send the message that the system will protect victims and hold batterers accountable.
Models of Domestic Violence Courts
There are diverse models of domestic violence courts. Some handle all criminal and civil cases involving domestic violence. Others handle only civil matters, only criminal domestic violence cases, or only misdemeanor criminal cases. Other court systems have dedicated teams of prosecutors that work only on domestic violence cases. Dedicated courts and prosecutions have many advantages. Since the same judges or prosecutors hear all domestic violence cases, these individuals are able to gain expertise in the issues and ensure more consistency in the treatment of cases. They are likely to be more sensitive to the needs of victims and can direct them to community resources. Dedicated courts or prosecution teams can process cases more quickly, thus reducing the opportunity for the batterer to intimidate his partner into abandoning the charges. In addition, judges who consistently deal with domestic violence cases will see repeat offenders, who will consequently expect increasing penalties and greater accountability.
While there is significant variation in how domestic violence courts are structured, there are a number of important similarities that enable them to identify themselves as separate and distinct from other courts. Whether civil or criminal, domestic violence courts pay particular attention to how cases are assigned, the need to screen for related cases, who performs intake-unit functions, the need to provide services to victims and batterers, and the monitoring of batterers. Some examples of different models of domestic violence courts can illustrate this point.
In one model, the court may specialize in handling civil protection orders. A full-time dedicated judge may handle these cases, or judges who rotate through the court calendar will preside over the cases, but the calendar is always specialized. This model includes a fully dedicated court that handles only civil protection orders all the time, as well as a court that devotes perhaps one day a week to focus on these cases. This model offers many of the advantages that a domestic violence court can provide, such as increased safety for victims, educated judges, and access to advocacy. On the other hand, this structure is limited because it generally allows for follow-up monitoring only when there is a violation of the order of protection. While it is possible for the court to conduct a more intensive follow-up, there are usually no conditions imposed beyond compliance with the order of protection that would trigger court monitoring. Some civil protection courts also handle related civil matters. This provides these courts with the ability to handle custody and visitation matters concerning children of the parties.
One of the more common models for domestic violence courts segregates criminal cases for specialized, concentrated handling by one or more judges. Most states have created specialized misdemeanor domestic violence courts. Some states have created courts that handle only felony abuse cases, while others have created courts that handle both misdemeanors and felonies. Since domestic violence defendants tend to have repeated and often escalating cases, when courts can hear both misdemeanor and felony cases a clearer picture of these defendants emerges. Compliance follow-up is more likely to occur in a criminal model because these courts have mechanisms to facilitate such followup, such as probation or incarceration. On the disadvantage side, just as a purely civil court cannot address criminal cases that may be occurring, a criminal-only court does not address related civil cases that may be ongoing.
A third model attempts to address the disadvantages raised in the previous models by combining domestic violence cases and related matters. These courts, often known as integrated domestic violence courts, or IDV courts, recognize that both victims and perpetrators often have related issues before the court, such as a criminal matter, an order of protection, child support, custody, or divorce. This type of model addresses more comprehensively the issues that families dealing with domestic violence face. The court has access to complete information on a family, lending itself to consistency of orders and outcomes. For example, if the judge issues an order of protection, that same judge will make a child visitation order that is compatible with the order. However, one problem with IDV courts is the difficulty of keeping civil and criminal matters separate. For example, the attorneys in both cases may work on a resolution for both cases at the same time. Another disadvantage of this model is that if participants do not like a particular judge, they are nevertheless dependent on that judge for decisions on every aspect of their various cases.
Criticisms of Domestic Violence Courts
Critics argue that the very act of creating a separate domestic violence court creates potential benefits as well as potential disadvantages. Four potential disadvantages or criticisms are especially noteworthy. First, creation of separate courts may be a result of an overreaction to the uniqueness of domestic violence cases, especially in terms of attempts to provide services for the batterer. The struggle between those who think that domestic violence cases should be set apart for special treatment and those who think that individual treatment can create the perception that the justice system is treating domestic violence perpetrators less seriously than other criminals is difficult to reconcile. Critics argue that if the community perceives that domestic violence courts are more likely to use diversion or counseling instead of holding batterers accountable for their behavior, then the community may lose faith in the ability of these courts to address domestic violence cases effectively.
A second criticism concerns the multidisciplinary approach embedded in many domestic violence courts. This approach involves numerous parties with a variety of perspectives, beliefs, and goals. Police officers, judges, prosecutors, victim advocates, and social service agencies may all be involved in a single domestic violence case. As a result, although there may be theoretical agreement that victim safety and defendant accountability are the primary goals of abuse intervention, the potential exists for creating conflict on a practical level in the actual implementation of interventions designed to further these goals. For example, through criminalization of domestic violence, the legal system validates women’s experiences by treating domestic violence crimes as seriously as stranger crimes. However, despite improvement in recent years, many officials still apply the law half-heartedly. In some instances, systematic gender bias or a reluctance to change the traditional justice system exists, resulting in insensitivity to victims despite innovative programs created to enhance sensitivity and to prevent victim mistreatment. For example, some judges may hesitate to mandate batterer intervention programs for men who have job and travel constraints. Prosecutors may also play a large role in promoting domestic violence laws or, alternatively, in limiting the use of such laws. When time and resources run low, some prosecutors prioritize their cases and discourage battered women from going forward with prosecution. Conversely, situations exist in which a city’s system has a sincere desire to implement domestic violence programs and policies, but case-specific circumstances dictate otherwise.
A third criticism concerns the uncertainty that exists over the effectiveness of batterer intervention programs. Most mainstream batterer programs, which are often court-mandated as an alternative to incarceration, utilize a group approach requiring batterers to attend weekly group sessions run by program staff and composed of other batterers. Each of these programs, however, may vary in overall length and number of sessions, as well as content of the curriculum. Although researchers have conducted several evaluation studies of batterer intervention programs, the outcome is inconclusive as to whether they actually result in reduced levels of violence. Moreover, a source of controversy involves the use of valuable domestic violence resources on services for perpetrators. Many battered women’s advocates object to spending money on long-term interventions for batterers when doing so diverts limited funds away from services for battered women. Advocates argue that with the effect of batterer programs so indeterminate, battered women are losing resources to interventions that may not even benefit them.
A fourth criticism concerns the impact of alternative legal sanctions on the recidivism rate of domestic violence offenders. Traditionally, legal sanctions included arrest and incarceration in serious cases of domestic violence, with courts giving perpetrators in less serious cases less punishment. Domestic violence courts, however, have promoted not only a greater variety of legal sanctions, with the advent of alternative sentences such as court-mandated counseling, but also greater severity of sanctions in cases that previously went unpunished, such as mandatory arrest, more stringent monitoring of defendant behavior by the court, and greater enforcement of orders of protection through criminalization of violations. However, research concerning whether such approaches deter future domestic violence is inconclusive. For example, traditionally experts considered arrest to be the primary tool for deterrence in domestic violence cases because of the 1980 Minneapolis Domestic Violence Study that found a dramatic decrease in repeat domestic violence incidents following arrest. Since that time, however, other studies have produced conflicting results. Furthermore, in the context of domestic violence courts, the newly created courts have taken straightforward legal sanctions and intertwined them with a host of other factors, making it difficult to assess the impact of any given legal sanction. Therefore, it is not known what legal sanctions, if any, actually deter future cases of domestic violence.
Domestic violence courts represent a potentially significant approach to dealing with the complexity characteristic of most domestic violence cases. The principles of offender accountability and victim safety provide domestic violence courts with important challenges to develop programs and monitoring that address both principles. Using dedicated resources and having coordinated community responses are important steps toward making domestic violence courts effective.
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