TO DOMESTIC VIOLENCE
Although prosecutors and forensic
doctors in countries in CEE/CIS often have considerable control over the
initiation and course of criminal proceedings, judges can help protect
victims and ensure
batterer accountability in many ways. In the courtroom, they enforce and
interpret existing laws; they may also have the ability to establish courtroom
and procedures that enhance victim safety. Outside of the courtroom, judges
are often community leaders, and can help shape a community’s response
to domestic violence by mobilizing other professionals and through example.
like prosecutors and police, are also a critical part of a coordinated
community response; coordination of judicial responses with
those of other actors in the legal, medical and advocacy communities can
avoid inconsistent responses that undermine victim safety and batterer accountability.
Judges can protect victim safety and
increase batterer accountability by enforcing existing laws. In many countries,
general criminal laws for assault are the only means available for sanctioning
a batterer. Judges can enforce the existing laws by treating assaults committed
by partners as serious crimes.
Similarly, prompt and consistent enforcement
of civil orders for protection, where
these are available, is critical. Research indicates that even a short time
in jail for violations of protection orders highlights for the abuser the
seriousness with which the legal system will view domestic abuse. Giving
“second chances” endangers the victim and sends a message to
both abuser and victim that the protection order will not be enforced.
Judges can also inform batterers when
the protection order is issued that violations will be punished. Research
indicates that pairing the order with a verbal warning not only increases
the likelihood that the batterer will comply with the order, but also communicates
to the victim (and to all others in the courtroom) that she has a right to
be free from violence and that the community will not tolerate domestic violence.
Judges can also alleviate some of the threat of retaliation by emphasizing
that the issuance of a protection order is the responsibility of the court,
not the victim— thus also making clear that the abuse is not a “private” matter
but rather a community concern.
Judges may also have discretion in
interpreting or enforcing the laws. Sometimes judges exercise their discretion
in ways that undermine victim safety and batterer accountability. For example,
in Poland, judges routinely suspend sentences for domestic violence convictions.
A suspended sentence reinforces the batterer’s belief in his right to use
violence to establish power and control over his partner, as well as his perception
that such violence will not be punished. From MAHR, A
Report on Domestic Violence in Poland
While prosecutors may have the authority
to determine the charges brought against a defendant, judges may be able to
choose among different penalties. Different sentences may be called for in
different contexts. For example, a monetary fine is often borne by the family
of the abuser; as a result, restitution—orders to the abuser to pay the victim
for lost wages, destroyed property, or medical expenses—may be more appropriate.
In some countries, such options may not be available. In Uzbekistan, for example,
research revealed that women were reluctant to use the legal system because
there were no sanctions available short of fines or imprisonment. From
Violence in Uzbekistan
25 (2000). In these situations, creative approaches may be necessary to fashion
a remedy that ensures the safety of the victim while sanctioning the batterer.
Judges may also have discretion in family law matters. Divorce is one
of the only forms of legal relief available to battered women in many countries;
mandatory mediation not only places them in danger of retaliation from the
batterer, but may provide the batterer with opportunities to intimidate and
coerce. In some countries, such mediation is mandatory, while in others it
is discretionary. To the extent a judge has discretion in requiring mediation,
setting the length of time allotted to mediation, or granting a divorce,
should exercise this discretion carefully. The dangers faced by victims in
attempting to leave a relationship should be recognized and reflected in
Finally, judges may also have the
authority to make decisions about applications for pretrial release. Because
victims of domestic violence are most vulnerable when they attempt to leave
a relationship, such decisions should be based on the risk posed by release
to the victim. In criminal cases, judges may be able to deny release, impose
conditions on the release, or issue a no contact order to ensure that the
abuser does not attempt to retaliate against the victim. No contact orders
in criminal cases direct the abuser to stay away from the victim pending resolution
of the case. They are similar to orders for protection in some ways.
Establishing Policies and Procedures
Judges may have the authority to establish
courtroom policies and procedures that can enhance victim safety. Batterers
may attempt to intimidate or even harm victims in the courtroom or on the
way to or from the courthouse. Judges may be able to ensure that victims are
provided with a separate waiting area; they may also be able to offer to send
an escort with the victim to her mode of transportation, or require the batterer
to delay his departure to ensure that he does not follow or attack her. Metal
detectors can be set up at courthouse entrances to screen for weapons.
Judges may be able to establish policies
or issue orders that require victims to be notified prior to a defendant’s
release. Women are in significant danger of stalking
and retaliatory violence after they seek to use the legal system to
protect themselves from abuse. Notifying a woman that her batterer is about
to be released can provide her with the time she will need to plan
for her safety.
Courthouse policies and procedures
can also be revised to enhance victim access. Courts can create emergency
hours, establish multiple locations at which victims can file for orders for
protection, offer multilingual services when necessary, and ensure that the
courthouse and courtrooms are accessible for people with disabilities. Judges
may be able to streamline courthouse procedures through the development of
common forms, checklists, and protocols, to shorten the time required to obtain
Courthouse policies and procedures
can also be developed to increase coordination between different agencies.
Such procedures can, for example, enhance post-conviction monitoring.
batterer has been ordered to participate in a batterer’s
it may be useful to provide ways
for that treatment program to notify the court or another law enforcement
agency if the batterer fails to comply with his sentence. Recent efforts
coordinate judicial responses in the United States have focused on the use
of web-based technology to share information.
Judges can also affect victim safety
and batterer accountability through their demeanor. When seeking assistance
through the legal system, many victims fear retaliation from the abuser, intimidation
by an unfamiliar and complicated legal process, and disbelief by the presiding
judge. Being willing to listen, taking the women’s words seriously, considering
her needs, making eye contact—all are ways in which judges can counter such
fears. Judicial demeanor also sets the tone for the demeanor of other courtroom
personnel. If judges treat domestic violence cases seriously, other criminal
justice personnel are more likely to follow this lead.
Advocacy Strategies for Judicial Reform
Advocates can use a number of different
strategies to promote improved judicial responses. Court
monitoring, for example, helps to identify areas of
concern and increase the visibility of these issues. Regular observation
and reporting by community members on judicial responses increases the visibility
of these responses in a particular community, as well as of domestic violence
issues generally. Observing itself can also increase judicial self-awareness;
many judges may become more aware of their own handling of domestic violence
cases and the effect they can have on perpetrators and victims simply because
of the presence of outside observers in the courtroom. Court monitoring also
sends a message to the legal system that domestic violence is a community
of judges and other courtroom personnel (security, clerks, etc.)
can also have a significant impact on judicial responses to domestic
violence issues in the courtroom. Training can provide judges
with the information they need to better address the needs of
battered women and ensure batterer accountability. Such training
can focus on challenging the myths surrounding domestic violence,
the effect of domestic violence on victims, the needs of victims,
victim experiences in courts, and the impact of judicial demeanor
on abusers. Training can help judges become more sensitive to
the needs of victims and the dynamics of domestic violence. For
example, judges should be aware of the fact that a woman seeking
to withdraw a protection order or a criminal case may have been
threatened by the abuser.
Adapted from Judge Jerry J. Bowles,
Judicial Response to Domestic Violence (2000); James Ptacek, Battered Women
in the Courtroom: The Power of Judicial Responses (1999); Richard Ducote,
The Family Law Commentator 4 (1998); Gail A. Goolkasian, Confronting Domestic
Violence: The Role of Criminal Court Judges 4 (1986).
The American Judges Foundation and
American Judges Association offer a pamphlet for judges, Domestic
Violence and the Courtroom: Understanding the Problem . . . Knowing the Victim,
that discusses forms of abuse, dynamics of domestic violence, and ways in
which judges can help protect
victims of domestic violence. Portions of this pamphlet may be particularly
as handouts in training sessions. Safety
and Accountability: The Underpinnings of a Just Justice System,
provides a detailed discussion of some of the barriers faced by battered
in accessing the court system.