A Judge’s Survival A Judge’s Survival Guide to Domestic Guide to Domestic

ViolenceViolence

Judge Elizabeth HinesJudge Elizabeth HinesJudge Catherine ShafferJudge Catherine ShafferJudge Elizabeth BernsJudge Elizabeth Berns

Our ObjectivesOur Objectives

Learn to manage DV defendants, in Learn to manage DV defendants, in and out of the courtroomand out of the courtroom

Deploy best practices with Deploy best practices with substance abuse and mental health substance abuse and mental health issuesissues

Understand and use best practices Understand and use best practices handling cases involving DV in handling cases involving DV in LGBTQ relationships.LGBTQ relationships.

Dealing with DefendantsDealing with Defendants

In CourtAnd OutOfCourt

DV Defendants: Your DV Defendants: Your ObservationsObservations

Some Important Recurring Some Important Recurring IssuesIssues

Lethality factorsLethality factorsNo contact ordersNo contact ordersBail decisionsBail decisions

Courtroom ControlCourtroom Control

Crawford and 404(b) IssuesCrawford and 404(b) Issues

Lethality FactorsLethality Factors

What are What are they?they?

How do they How do they affect your no affect your no contact contact orders and orders and bail bail decisions?decisions?

Courtroom ControlCourtroom Control

Some Some ideasideas

Your Your thoughts?thoughts?

DV EvidenceDV Evidence

The Crawford AnalysisThe Crawford Analysis

Dealing with “Prior Bad Dealing with “Prior Bad Acts” in DV CasesActs” in DV Cases

Crawford v. Washington Crawford v. Washington analysisanalysis

66thth amendment in play? amendment in play?

Is the statement “testimonial?” Is the statement “testimonial?”

If so, did government produce the If so, did government produce the declarant for cross examination?declarant for cross examination?

If so, has the defendant been If so, has the defendant been afforded sufficient opportunity to afforded sufficient opportunity to cross examine?cross examine?

Recognized Crawford Recognized Crawford ExceptionsExceptions

Statements to undercover officersStatements to undercover officers

Excited utterancesExcited utterances

Statement for purposes of medical Statement for purposes of medical diagnosis/treatmentdiagnosis/treatment

Statements by children to famiStatements by children to familyly

Business/public recordsBusiness/public records

Statements made by a victim if defendant Statements made by a victim if defendant killed victim to prevent that testimonykilled victim to prevent that testimony

404(b) in DV Cases404(b) in DV Cases

Evidence of Evidence of other crimes, other crimes, wrongs, acts wrongs, acts inadmissible to inadmissible to “prove the “prove the character of a character of a person to show person to show action in action in conformity conformity therewith”therewith”

“Suspect in Arson Had a History of Domestic Violence”

Bases for AdmissibilityBases for Admissibility

Evidence of other Evidence of other crimes, wrongs, crimes, wrongs, acts, may be acts, may be admissible –admissible –

To prove motive, To prove motive, opportunity, opportunity, intentintent, , planplan, , knowledge, knowledge, absence of absence of mistake or mistake or accidentaccident

May also be May also be admissible in DV admissible in DV cases to showcases to show

Reasonable fearReasonable fear

Reasons for Reasons for recantation or recantation or minimizationminimization

Why reporting Why reporting was delayedwas delayed

Some Practice TipsSome Practice Tips

If possible, get briefingIf possible, get briefing

Look at 404(b) case law and cite itLook at 404(b) case law and cite it

Balance probativeness versus danger of Balance probativeness versus danger of unfairunfair prejudice on record prejudice on record

Keep record of rulingsKeep record of rulings

Limiting instruction very advisable, on Limiting instruction very advisable, on admission and in closing setadmission and in closing set

What about What about the Kids?the Kids?Juggling Juggling

Conflicting Conflicting OrdersOrders

Kids in CourtKids in Court

The Defendant Out of The Defendant Out of CourtCourt

Questions to Ask about local Questions to Ask about local “DV Treatment” Programs“DV Treatment” Programs

How to monitor and reviewHow to monitor and review

Co-occurring issuesCo-occurring issues

Your Local “DV Treatment” Your Local “DV Treatment” ProgramProgram

Is it really just --Is it really just --

““Anger Anger management”management”

Personal Personal individual individual counselingcounseling

Couples Couples counselingcounseling

Some hallmarks of Some hallmarks of helpful DV helpful DV treatment treatment programsprograms

Victim contactVictim contactCollateral source Collateral source checkschecksHandling co-Handling co-occurring occurring treatment issuestreatment issuesAccountability in Accountability in a group settinga group setting

LOW OR NO CO$T LOW OR NO CO$T STRATEGIESSTRATEGIES

Recognize that proper handling of Recognize that proper handling of DV is homicide preventionDV is homicide prevention

Focus on victim safetyFocus on victim safety

Expedite DV Court hearings Expedite DV Court hearings (Rocket Docket)(Rocket Docket)

Conduct frequent court reviews to Conduct frequent court reviews to ensure complianceensure compliance

LOW OR NO CO$T LOW OR NO CO$T STRATEGIESSTRATEGIES

If possible, judge at pretrial keeps case If possible, judge at pretrial keeps case for any trial, sentencing, reviewfor any trial, sentencing, review

Educate courts staff on the importance of Educate courts staff on the importance of DV casesDV cases

Use BIP that meets state standards (not Use BIP that meets state standards (not anger management)anger management)

Establish procedures to promptly enforce Establish procedures to promptly enforce conditions of bond and probationconditions of bond and probation

LOW OR NO CO$T LOW OR NO CO$T STRATEGIESSTRATEGIES

Ban use/possession of firearms, ammunition, Ban use/possession of firearms, ammunition, illegal drugs and alcoholillegal drugs and alcohol

Know and work with your local victim advocatesKnow and work with your local victim advocates

Improve cross-system communication and Improve cross-system communication and trainingtraining

Seek out and attend DV trainings and share the Seek out and attend DV trainings and share the informationinformation

Take part in a coordinated community responseTake part in a coordinated community response

Effective Review with no Money:Effective Review with no Money:

Judge Shaffer’s ExperienceJudge Shaffer’s Experience

Co-occurring IssuesCo-occurring Issues

Domestic Violence in the Domestic Violence in the LGBTQ CommunityLGBTQ Community

Understanding the LanguageUnderstanding the Language

Recent StatisticsRecent Statistics

Abuser TacticsAbuser Tactics

Issues in the CourtroomIssues in the Courtroom

Understanding the Understanding the LanguageLanguage

Identifying language can be affirmation. Identifying language can be affirmation.

Language use changes over time. What Language use changes over time. What was once a derogatory term may now was once a derogatory term may now be embraced as an affirming one.be embraced as an affirming one.

Avoid problematic or insulting Avoid problematic or insulting terminology.terminology.

When in doubt, When in doubt, askask..

LanguageLanguageLL “Lesbian” “Lesbian”

GG “Gay” “Gay”

BB “Bisexual” “Bisexual”

TT “Transgender” “Transgender”

QQ ““Questioning, Queer, or Questioning, Queer, or GenderqueerGenderqueer””

Language Language ““Sexual Orientation”Sexual Orientation”

““Gender Identity” Gender Identity”

““Gender Expression”Gender Expression”

““Homophobia, Transphobia, and Homophobia, Transphobia, and HeterosexismHeterosexism””

Statistics Statistics U.S. Population Identifying as LGBTQU.S. Population Identifying as LGBTQ

About 3.5% of U.S. adults identify as About 3.5% of U.S. adults identify as lesbian, gay, bisexual or transgender (2012)lesbian, gay, bisexual or transgender (2012)

Hawaii has 2Hawaii has 2ndnd largest population at 5.1 % largest population at 5.1 % (D.C. has 10%) (D.C. has 10%)

National Youth Statistics:National Youth Statistics:

5% to 10% of youth identify as LGBTQ5% to 10% of youth identify as LGBTQ

40% of homeless youth identify as 40% of homeless youth identify as LGBTQ (2010) LGBTQ (2010)

National DV StatisticsNational DV StatisticsViolence by an Intimate Partner: Violence by an Intimate Partner:

WomenWomen

In 2010, women suffering rape, other In 2010, women suffering rape, other violence and/or stalking by intimate violence and/or stalking by intimate partner during lifetime:partner during lifetime:

43.8% of lesbians43.8% of lesbians

61.1% of bisexual women61.1% of bisexual women

35.0% of heterosexual women 35.0% of heterosexual women

National DV StatisticsNational DV StatisticsViolence by an Intimate Partner: Violence by an Intimate Partner:

MenMen

In 2010, men suffering rape, other In 2010, men suffering rape, other violence and/or stalking by an intimate violence and/or stalking by an intimate partner during lifetime: partner during lifetime:

26.0% of gay men26.0% of gay men

37.3% of bisexual men 37.3% of bisexual men

29.0% of heterosexual men 29.0% of heterosexual men

Myths & Myths & Stereotypes Stereotypes

““Violence between two men or two women is Violence between two men or two women is a ‘fight’ between equals.” a ‘fight’ between equals.”

““If one person fights back, then it’s not If one person fights back, then it’s not abuse.”abuse.”

““Women are not violent.”Women are not violent.”

““Lesbian relationships are based on equality Lesbian relationships are based on equality -- lesbians have ideal, loving relationships.”-- lesbians have ideal, loving relationships.”

““Domestic violence primarily occurs among Domestic violence primarily occurs among LGBTQ people who hang out at bars, are poor, LGBTQ people who hang out at bars, are poor, or people of color.”or people of color.”

““The law does not and will not protect The law does not and will not protect victims of same-sex domestic violence.”victims of same-sex domestic violence.”

Abusers Tactics Abusers Tactics General Behaviors of Abusers General Behaviors of Abusers

Using Coercion & Threats Using Coercion & Threats

Using Children Using Children

Using Economic Abuse Using Economic Abuse

Isolation Isolation

Using Emotional AbuseUsing Emotional Abuse

Minimizing, Denying, & Blaming Minimizing, Denying, & Blaming

Abusers TacticsAbusers TacticsBehaviors Unique to LGBTQ Behaviors Unique to LGBTQ

Abusers Abusers Forcing sexual intercourse to prove Forcing sexual intercourse to prove the domestic violence survivor a the domestic violence survivor a ““truetrue”” LGBTQ person LGBTQ person

Hiding or destroying hormones (for Hiding or destroying hormones (for transgender survivors)transgender survivors)

Saying all LGBTQ relationships Saying all LGBTQ relationships ““are are like thislike this””

Accusing survivor of mutual abuseAccusing survivor of mutual abuse

More Behaviors Unique to More Behaviors Unique to LGBTQ AbusersLGBTQ 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

LGBTQ DV Issues LGBTQ DV Issues in Courtin Court

Minimal evidenceMinimal evidence

Lack of police reports and witnesses Lack of police reports and witnesses

Allegations of long-standing abuse but Allegations of long-standing abuse but no supporting records or evidence no supporting records or evidence

Dual arrestsDual arrests

Cross-filed protection order petitionsCross-filed protection order petitions

Creating a Creating a Knowledgeable and Knowledgeable and

Compassionate Compassionate CourtroomCourtroom

Treat LGBTQ DV crimes as gender-Treat LGBTQ DV crimes as gender-neutralneutral

Abusers can be of either genderAbusers can be of either genderAbusers may use tools other than Abusers may use tools other than

physical power to control partners physical power to control partners

Understand the already-Understand the already-marginalized LGBTQ communitymarginalized LGBTQ community

Carefully consider protective order Carefully consider protective order or sentencing decisions or sentencing decisions

Creating a Creating a Knowledgeable and Knowledgeable and

Compassionate Compassionate CourtroomCourtroom (2) (2)

Carefully consider protective order or Carefully consider protective order or sentencing decisions sentencing decisions

Understand that traditional safety Understand that traditional safety planning responses may take planning responses may take survivors completely out of their survivors completely out of their communities communities

This can be less effective for LGBTQ This can be less effective for LGBTQ survivorssurvivors

This can lead to further isolation This can lead to further isolation

Creating a Knowledgeable Creating a Knowledgeable and Compassionate and Compassionate

CourtroomCourtroom (3) (3)

Amend forms and procedures to allow Amend forms and procedures to allow victims to seek legal relief without victims to seek legal relief without having to having to ““come outcome out””

Educate all court personnel on how to Educate all court personnel on how to support access to justice for LGBTQ support access to justice for LGBTQ people people

Establish & enforce rules regarding Establish & enforce rules regarding offensive conduct & statements made offensive conduct & statements made by staff and others in the courtroom by staff and others in the courtroom