A Judge ’ s Survival Guide to Domestic Violence

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

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 • 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?

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. 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 StatisticsViolence 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 StatisticsViolence 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 TacticsBehaviors 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