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A Judge’s Survival Guide to Domestic Violence Judge Elizabeth Hines Judge Catherine Shaffer Judge Elizabeth Berns.

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Presentation on theme: "A Judge’s Survival Guide to Domestic Violence Judge Elizabeth Hines Judge Catherine Shaffer Judge Elizabeth Berns."— Presentation transcript:

1 A Judge’s Survival Guide to Domestic Violence Judge Elizabeth Hines Judge Catherine Shaffer Judge Elizabeth Berns

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3 Our Objectives Learn to manage DV defendants, in and out of the courtroom Deploy best practices with substance abuse and mental health issues Understand and use best practices handling cases involving DV in LGBTQ relationships.

4 Dealing with Defendants In Court And Out Of Court

5 DV Defendants: Your Observations

6 Some Important Recurring Issues Lethality factors No contact orders Bail decisions Courtroom Control Crawford and 404(b) Issues

7 Lethality Factors What are they? How do they affect your no contact orders and bail decisions?

8 Courtroom Control Some ideas Your thoughts?

9 DV Evidence The Crawford Analysis Dealing with “Prior Bad Acts” in DV Cases

10 Crawford v. Washington analysis 6 th amendment in play? Is the statement “testimonial?” If so, did government produce the declarant for cross examination? If so, has the defendant been afforded sufficient opportunity to cross examine?

11 Recognized Crawford Exceptions Statements to undercover officers Excited utterances Statement for purposes of medical diagnosis/treatment Statements by children to fami ly Business/public records Statements made by a victim if defendant killed victim to prevent that testimony

12 404(b) in DV Cases Evidence of other crimes, wrongs, acts inadmissible to “prove the character of a person to show action in conformity therewith” “Suspect in Arson Had a History of Domestic Violence”

13 Bases for Admissibility Evidence of other crimes, wrongs, acts, may be admissible – To prove motive, opportunity, intent, plan, knowledge, absence of mistake or accident May also be admissible in DV cases to show Reasonable fear Reasons for recantation or minimization Why reporting was delayed

14 Some Practice Tips If possible, get briefing Look at 404(b) case law and cite it Balance probativeness versus danger of unfair prejudice on record Keep record of rulings Limiting instruction very advisable, on admission and in closing set

15 What about the Kids?  Juggling Conflicting Orders  Kids in Court

16 The Defendant Out of Court Questions to Ask about local “DV Treatment” Programs How to monitor and review Co-occurring issues

17 Your Local “DV Treatment” Program Is it really just -- “Anger management” Personal individual counseling Couples counseling Some hallmarks of helpful DV treatment programs Victim contact Collateral source checks Handling co- occurring treatment issues Accountability in a group setting

18 LOW OR NO CO$T STRATEGIES Recognize that proper handling of DV is homicide prevention Focus on victim safety Expedite DV Court hearings (Rocket Docket) Conduct frequent court reviews to ensure compliance

19 LOW OR NO CO$T STRATEGIES If possible, judge at pretrial keeps case for any trial, sentencing, review Educate courts staff on the importance of DV cases Use BIP that meets state standards (not anger management) Establish procedures to promptly enforce conditions of bond and probation

20 LOW OR NO CO$T STRATEGIES Ban use/possession of firearms, ammunition, illegal drugs and alcohol Know and work with your local victim advocates Improve cross-system communication and training Seek out and attend DV trainings and share the information Take part in a coordinated community response

21 Effective Review with no Money: Judge Shaffer’s Experience

22 Co-occurring Issues

23 Domestic Violence in the LGBTQ Community Understanding the Language Recent Statistics Abuser Tactics Issues in the Courtroom

24 Understanding the Language Identifying language can be affirmation. Language use changes over time. What was once a derogatory term may now be embraced as an affirming one. Avoid problematic or insulting terminology. When in doubt, ask.

25 Language L “Lesbian” G “Gay” B “Bisexual” T“Transgender” Q “Questioning, Queer, or Genderqueer”

26 Language “Sexual Orientation” “Gender Identity” “Gender Expression” “Homophobia, Transphobia, and Heterosexism”

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28 Statistics U.S. Population Identifying as LGBTQ About 3.5% of U.S. adults identify as lesbian, gay, bisexual or transgender (2012) Hawaii has 2 nd largest population at 5.1 % (D.C. has 10%) National Youth Statistics: 5% to 10% of youth identify as LGBTQ 40% of homeless youth identify as LGBTQ (2010)

29 National DV Statistics Violence by an Intimate Partner: Women In 2010, women suffering rape, other violence and/or stalking by intimate partner during lifetime: 43.8% of lesbians 61.1% of bisexual women 35.0% of heterosexual women

30 National DV Statistics Violence by an Intimate Partner: Men In 2010, men suffering rape, other violence and/or stalking by an intimate partner during lifetime: 26.0% of gay men 37.3% of bisexual men 29.0% of heterosexual men

31 Myths & Stereotypes “ Violence between two men or two women is a ‘fight’ between equals.” “If one person fights back, then it’s not abuse.” “Women are not violent.” “Lesbian relationships are based on equality -- lesbians have ideal, loving relationships.” “Domestic violence primarily occurs among LGBTQ people who hang out at bars, are poor, or people of color.” “The law does not and will not protect victims of same-sex domestic violence.”

32 Abusers Tactics General Behaviors of Abusers Using Coercion & Threats Using Children Using Economic Abuse Isolation Using Emotional Abuse Minimizing, Denying, & Blaming

33 Abusers Tactics Behaviors Unique to LGBTQ Abusers Forcing sexual intercourse to prove the domestic violence survivor a “true” LGBTQ person Hiding or destroying hormones (for transgender survivors) Saying all LGBTQ relationships “are like this” Accusing survivor of mutual abuse

34 More Behaviors Unique to LGBTQ Abusers Threats to “out” the survivor or disclose HIV status to family, friends, or employer Using sexual orientation to alienate domestic violence survivor from family, community, and organizations Accusing survivor of being an unfit parent because of HIV or LGBTQ status Threats to “out” survivor to police or other authorities to have children taken away

35 LGBTQ DV Issues in Court Minimal evidence Lack of police reports and witnesses Allegations of long-standing abuse but no supporting records or evidence Dual arrests Cross-filed protection order petitions

36 Creating a Knowledgeable and Compassionate Courtroom Treat LGBTQ DV crimes as gender- neutral Abusers can be of either gender Abusers can be of either gender Abusers may use tools other than physical power to control partners Understand the already-marginalized LGBTQ community Carefully consider protective order or sentencing decisions

37 Creating a Knowledgeable and Compassionate Courtroom (2) Carefully consider protective order or sentencing decisions Understand that traditional safety planning responses may take survivors completely out of their communities This can be less effective for LGBTQ survivors This can lead to further isolation

38 Creating a Knowledgeable and Compassionate Courtroom (3) Amend forms and procedures to allow victims to seek legal relief without having to “come out” Educate all court personnel on how to support access to justice for LGBTQ people Establish & enforce rules regarding offensive conduct & statements made by staff and others in the courtroom


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