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

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
And
Out Of
Court
In Court

5. DV Defendants: Your Observations
This is where we want our audience to talk to us about what they see in terms of DV defendants. A flip chart might be a good way to note comments. For example, I find they are outstanding at organizing their personal lives and appearing on time for court. They also have superior self presentation skills.

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?
Excellent recent New Yorker article called “A Raised Hand” by Rachel Louise Snyder on the use of a multidisciplinary team to identify high risk cases in Massachusetts, using Jacquelyn Campbell’s risk factors/Danger Assessment Tool -- downloadable at We should provide these references and also have our audience respond to both questions.

8. Courtroom Control Some ideas Your thoughts?
Judge Shaffer has an armed officer present, keeps all parties seated, uses court personnel to move documents and exhibits around for parties, sets out her procedures up front and enforces them, allows advocates, and arranges for staged (and if necessary escorted) departures.

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

10. Crawford v. Washington analysis
6th 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?
Testimonial: a reasonable witness would reasonably have believed the statement would be used as evidence at a trial. Note Crawford is also in addition to, not a substitute for, an inquiry into whether hearsay exception applies.

11. Recognized Crawford Exceptions
Statements to undercover officers
Excited utterances
Statement for purposes of medical diagnosis/treatment
Statements by children to family
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”

28. U.S. Population Identifying as LGBTQ
Statistics
U.S. Population Identifying as LGBTQ
About 3.5% of U.S. adults identify as lesbian, gay, bisexual or transgender (2012)
Hawaii has 2nd 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 “If one person fights back, then it’s not abuse.”
“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 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