Judicial Perspectives on Domestic Violence Research Paper

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Introduction

Despite the steady accumulation of research findings on the criminal justice system’s processing of domestic violence cases, relatively little is known about the beliefs and perceptions of a critical group of actors in that system, trial court judges and magistrates. For many reasons, it is important to understand how judges think about the nature and causes of domestic violence, and their perspectives on the efficacy of current practices and proposed reforms. Judges have considerable discretion at multiple decision points in criminal cases, so their decisions may be shaped by their beliefs as well as by legal aspects of cases. The overwhelming majority of domestic incidents are processed in the lower courts, where they receive even less time, documentation, and visibility than do felonies (Spohn and Cederblom 1991). Further, judges not infrequently express their views to their courtroom audiences and may thereby shape the expectations for justice held by victims, offenders, and bystanders. Finally, domestic violence has been the subject of a broad array of reforms, new programs, and legal mandates, some of which have challenged judges’ traditional roles, and few of which have enjoyed widespread endorsement from the bench. The implementation and success of many of these programs may hinge on judicial acceptance and support.

This research paper summarizes what social scientists have learned about judges’ attitudes and perceptions about domestic violence. Very briefly noted are the legal and historical contexts that form the backdrop of judges’ training and common-law understandings of domestic violence. The methodological challenges that have limited research on this question are then discussed. Lastly, theoretical and empirical studies that start to fill in the questions about judges’ attitudes about domestic violence are addressed, concluding with some observations on fruitful directions for future research and implications of current knowledge for policy and practice.

The Historical Context of Judicial Decision Making in Family Violence Cases

The legal history of domestic violence law and policy is well documented. While traditional common law did not endorse partner violence, neither did it expressly prohibit it. As heads of households, husbands and fathers were authorized to control their family members, and physical ‘‘discipline’’ was deemed unlawful only in extreme cases. Case law began to develop on this topic as women sought not criminal convictions, but civil divorce, in cases of physical abuse; the courts concerned themselves for several decades with defining exactly how much physical violence, inflicted under what sets of circumstances, constituted grounds for cruelty and therefore dissolution of marriage (Friedman 1985; Pleck 1987; Ryan 1986). The notion that wife assault might constitute criminal behavior made only halting inroads into American criminal law.

This case law on spouse abuse, only a few generations removed from contemporary legal training, has yet to evaporate from criminal case processing, despite several decades of explicit reforms (Zorza 1992). It is true that in almost all states, statutory changes have reclassified violent acts among family members as equal to, or even more serious than, assaults committed by strangers. However, enforcement of such laws has been uneven (see, for example, Avakame 2001), evidence for the efficacy of these reforms has been mixed, and the most recent innovations depart from a strictly criminal law treatment of domestic assault. For example, in some states, such as New York, criminal charges of assault are eligible to be heard either in criminal court or family court (or both). The institutionalization of ‘‘integrated domestic violence courts’’ (which bundle criminal charges, child support complaints, visitation disputes, and the like into a single jurisdiction presided over by a single judge) inadvertently sustains the premise that criminal cases of partner assault cannot, and should not, be separated from other problematic relationship issues. Against this unresolved legal backdrop, judges, along with other criminal justice practitioners, must settle on norms for processing complaints of domestic violence.

The Challenges of Studying Judges’ Attitudes and Beliefs

Social scientists have studied the beliefs of the public, as well as of criminal justice and social services professionals, about domestic violence. They have reached some consensus about these beliefs. For example, research shows that in general, the public condemns physical violence between family members and believes that criminal justice agents have a role to play in crisis intervention, but places more hope in prevention and rehabilitation than in punishment and deterrence (Klein et al. 1997; Worden and Carlson 2005). Studies of practitioners suggest higher levels of factual knowledge about the etiology of domestic violence and the law, although not much more optimism about the effectiveness of interventions (Belknap 1995; Ferraro 1989; Johnson, Sigler, and Crowley 1994) and lingering skepticism about victims’ motivations and roles in violent incidents (Davis 1983; Worden andMcLean 2000). However, these studies have seldom included judges. As a result, what is known about variation in judges’ perceptions and beliefs, as well as factors that might account for that variation, is quite limited.

Why do social scientists know so little about judges’ beliefs about domestic violence? In general, social scientists know little about judges’ attitudes about most topics, for several reasons. First, many studies of courthouse decision making are limited to a single jurisdiction, so few judges become research subjects. Relatively few social scientists have succeeded (or perhaps attempted) to interview judges directly about their work, relying instead on social characteristics (such as age, sex, gender, and professional experience) as proxies for attitudinal constructs, and case outcomes as proxies for judicial decisions (despite the fact that decisions such as convictions, pleas, and sentences are usually the product of courtroom workgroup dynamics). Data collection strategies that more directly address judges’ attitudes are costly and subject to limitations. Some court researchers have relied on mail surveys to study topics such as sentencing preferences (Frank, Cullen, and Cullen 1987), attitudes about plea bargaining (Worden 1995), and preferences for handling child sexual abuse cases (Saunders 1987). However, these studies sometimes suffer from limited generalizability and are not always well suited for capturing complex attitudinal constructs.

Other methodological approaches include courtroom observational studies (e.g., Goolkasian 1986; Meyer and Jesilow 1997; Ptacek 1999); historical (Merry 1995) and more contemporary (Crocker 2005; Schafran 1995) content analyses of written case opinions; and intensive case studies (Nicolson 1995). These studies offer some purchase on the public legal choices and justifications judges select to resolve cases. However, they are still several steps removed from measures of judicial beliefs and attitudes.

Interviews with judges, designed expressly to tap their thinking about domestic violence, may be the most promising approach. As of this writing, only a few such studies have been undertaken, however, and not all involved judges (for example, Fahnestock’s [1991] study of rural domestic violence provides useful insight into the values of court clerks and administrators, but not judges). These include Hartman and Belknap’s (2003) study of Midwestern judges; Ptacek’s (1999) interviews with progressive Massachusetts jurists; and McLean’s (2003) interviews with a sample of rural New York magistrates. Coupled with the findings of survey-based studies and those relying on other methodological strategies, the results of these studies suggest that (1) most judges hold fairly decisive views about the nature and causes of domestic violence, as well as about appropriate social and legal responses, but (2) there may be little agreement among judges on these questions. A review of the findings of these studies is below, followed by a consideration of the factors that might explain variation in judges’ beliefs.

Judges’ Beliefs

The Nature and Causes of Domestic Violence

Judges differ in their thinking about the nature of domestic violence. Like most other criminal justice professionals, they tend to define domestic violence in terms of physical assault (Johnson et al. 1994), although this does not necessarily mean that they are oblivious to the toll taken by emotional abuse. Crocker (2005) observed that in written trial court opinions, Canadian judges tended to strongly condemn partner violence, seldom minimizing its gravity even when they found justification for mitigating its punishment.

When asked about the causes of domestic violence, judges give the same array of answers offered by the public (Carlson and Worden 2005).Many judges link violence to alcohol and substance abuse (Fahnestock 1991; McLean 2003, but see Crocker 2005; Worden and McLean 2000), dysfunctional relationships (McLean 2003; Schornstein 1997), and unemployment and financial stress (McLean 2003). There is ample evidence in early and more recent research to suggest that some criminal justice practitioners are wary of victims’ motives and tolerant of perpetrators’ behavior. Interviews with judges have uncovered these views (Hartman and Belknap 2003; Worden and McLean 2000). However, when asked to evaluate circumstances that should, or should not, factor into court decisions, judges provide little systematic evidence that these cynical attitudes have a significant impact on case dispositions. For example, few Midwestern judges agreed that victims were unlikely to testify, and most dismissed victims’ continued relationships with abusive partners, their own substance abuse, or other victim characteristics as irrelevant to their discretionary decisions (Hartman and Belknap 2003). Similarly, Crocker (2005) reports that a major theme in judicial decisions is documentation of victims’ credibility in court; most judges seemed not only sympathetic but also respectful of victims’ statements.

But the regard for victims expressed by many judges is countered by suspicion and cynicism among others. Some court officers are quick to point out that complainants are vengeful (Fahnestock 1991; McLean 2003) and manipulative (Worden and McLean 2000). Further, even judges who hold victims blameless are inclined to fault circumstances, rather than personal culpability, for men’s violence, going to great lengths to document perpetrators’ reputations, economic standing, and community ties to dismiss what appears to be anomalous behavior (Crocker 2005).

In sum, research supports the statement that judges’ beliefs about the nature and causes of violence vary considerably; however, researchers do not yet know enough to say how these beliefs are distributed.

Social and Legal Responses to Domestic Violence

A great deal of policy reform has centered on criminalization of partner violence, as well as on exhortation of criminal justice professionals and communities to collaborate in holding offenders accountable and keeping victims safe. These directives, while not always embraced by law enforcement and prosecutors, are at least consistent with their core missions of apprehending and convicting offenders. However, judges’ professional roles are more complex: They are obliged to maintain neutrality and impartiality, to refrain from advocacy, and to sustain high standards of proof for conviction (Killian 2001). Judges’ attitudes about appropriate responses to domestic violence tend to reflect this role conflict; furthermore, they mirror the views of the public and many other groups of practitioners in their pessimism about the effectiveness of criminal sanctions (Hartman and Belknap 2003; Johnson et al. 1994).

Research suggests that even judges and courtworkers who are sympathetic to victims may identify more strongly with their formal courthouse role than with policy reformers (Fahnestock 1991).Many judges are troubled by the problems of evidence and proof required for criminal conviction, especially when victims are unwilling or unable to help make the case. Meanwhile, many judges believe that reforms, such as mandatory arrest laws and calls for more aggressive prosecution and sentencing, have increased caseloads, reduced police discretion, and even prioritized one particular type of crime over other community problems (Worden andMcLean 2000).

All the same, when judges are asked what they think should be done to reduce violence, they tend to answer in a criminal justice paradigm (Johnson et al. 1994): Many recommend restrictions on plea bargaining, no-drop prosecution policies, and harsher punishment. One might infer that these views stem from a belief in deterrence, and there is some evidence to support this inference (Crocker 2005). However, not all judges offer such recommendations. A study of misdemeanor court judges found that some recommended more specialized domestic violence courts and more coordination between family and criminal court authorities (Worden and McLean 2000). Still others adopted a more therapeutic approach, favoring counseling (for one or both parties) (Hartman and Belknap 2003; Worden and McLean 2000). An important question, still unanswered by research, is what sorts of counseling they would favor, and under what conditions: mandated batterers’ treatment, aimed at adjusting offenders’ attitudes and behavior? counseling for women to empower them to exit or manage violent relationships? or the traditional practice, now statutorily banned in most states, of ‘‘sentencing’’ victims and perpetrators to mediation and couples therapy?

To summarize, researchers have limited empirical purchase on judges’ attitudes about what society should, and should not, do in response to domestic violence. What research suggests is that their opinions vary greatly. They range from traditional attitudes that effectively minimize violence, either through distributing blame across both parties and/ or classifying such incidents as properly the province of civil courts and social services, to attitudes more collinear with contemporary policy reforms that emphasize formal mechanisms to ensure offender accountability and victim safety.

Factors Associated with Judges’ Beliefs

There is a rich theoretical literature on models of judicial decision making, much of which taps into theories about the relationships between core values, such as religious views and political ideology, and legal decisions, such as appellate opinions and felony sentencing. Therefore, although there exists little in the way of empirical findings about explanations for judges’ views on domestic violence specifically, it is possible to propose some hypotheses that are consistent with previous researchers’ models.

First, judges’ beliefs about gender and relationships may shape their thinking about the criminal courts’ role in criminalizing violence. Previous research suggests that among the public and some groups of practitioners, traditional gender role attitudes are linked to beliefs that minimize violence, attach blame to victims, and justify offenders’ actions. Even among judges who are protective of victims, Crocker (2005) observed paternalistic and chauvinistic themes. Likewise, fundamental attitudes about the purposes of criminal sanctions, rehabilitation, and personal responsibility may affect beliefs about how to deal with many types of crime, including domestic violence (Frank et al. 1987; Worden and McLean 2000).

Second, judges’ decision context may influence their notions of what is, and is not, legitimate and relevant information in domestic violence cases. Courthouse setting may matter: For example, judges sitting in urban, bureaucratized courtrooms will seldom know anything more about cases than the facts included in a police report and perhaps a bit of testimony, but judges in small towns and rural areas may have a wealth of background information about one or both parties’ lifestyles, characters, and problems. Such judges may define this information as relevant if only because it is almost impossible to disregard (Fahnestock 1991; McLean 2003; Websdale 1998).

Third, some have hypothesized that common social experiences associated with age or generation, gender, race, ethnicity, and professional background may indelibly stamp judges’ attitudes about crime and justice long before they reach the bench. The intuitive appeal of these sorts of hypotheses is countered, however, by the lack of empirical research; most studies find few differences across groups of judges (or other criminal justice professionals, for that matter) defined by these variables (e.g., Spohn 1990), perhaps because individuals whose socialization left them with attitudes very different from those of most jurists are unlikely to seek (or find) positions on the bench.

Fourth, reformers have suggested that deliberate resocialization efforts, in the form of judicial education, might account not only for variation in beliefs but also for changes in beliefs about domestic violence. While some evidence lends support to this hypothesis (e.g., Fahnestock 1991; Schafran 1986), there is competing evidence to suggest that judicial education has no discernible effect on knowledge or attitudes concerning domestic violence (Morrill et al. 2005). One cannot say with much confidence that attitudes are easily manipulated. It is unlikely that judges, who enjoy little public scrutiny and considerable job security in most communities, would undergo significant attitude or behavioral change about the causes and blameworthiness of domestic violence simply because they were told that they should (Burt et al. 1996). However, judges who acknowledge that they know little about the causes and consequences of violence might be receptive to additional information and education, which might result in changed ideas about effective and ineffective responses.

Finally, a strong body of research has documented the fact that although criminal courts all work with the same laws in any state, their processes and outcomes vary considerably, and this is particularly pronounced at the misdemeanor court level. Attempts to understand this variability typically model court behavior as the collective product of interorganizational dynamics and of community political forces. To the extent that judges internalize the views of colleagues in the courthouse or have been socialized into the values of their communities, these levels of analysis would be relevant to the present topic as well. However, as of this writing, there are virtually no published studies that impose and test these models in domestic violence court cases.

Conclusion

From this review of what is known about judges’ perceptions and attitudes about domestic violence, one can conclude the following:

First, court actors’ attitudes about domestic violence are probably influenced in subtle ways by the case law and common law, which historically resolved the conflict between husbands’ roles as heads of households and their culpability as batterers in favor of the former. While such laws are long gone from the books, the fact remains that judges express difficulty and sometimes frustration in separating familial and legal relationships from conventional perpetrator–victim ones.
Second, however, judges’ attitudes about the causes of violence do not fit a single mold. While many judges, like most other practitioners and the public, equate domestic violence with substance abuse, judges locate the causes of violence in economic problems, social class identities, and temporary lapses on the part of offenders. Some judges blame victims; however, the authors of this entry have found no evidence to support the stereotype that most judges hold victims responsible for their abuse. Further, there is little systematic evidence that judges see most victims as reluctant or uncooperative.
Third, research indicates that most judges define domestic violence as a legal rather than a social matter, for the purposes of their own decision making. However, at the same time, many judges are not optimistic about the impact of legal actions (such as arrest and incarceration) on offenders’ behavior. Overall, they are more optimistic about social services interventions, particularly counseling, but do not necessarily see that aspartof the legal system’s responsibility.
Fourth, although one can confidently conclude that judges’ beliefs vary considerably on these matters, very little research has examined the factors that account for this variation.

Does it matter how judges think about domestic violence? Given their influence over court decisions and their ability to shape the policies and decisions of criminal justice agents such as police and prosecutors, the answer is surely in the affirmative. Courts are famously resistant to reform, especially those that are generated by outsiders. Domestic violence has been the subject of tremendous policy reform over the past decades, but the success of these reforms (and even researchers’ ability to evaluate their effectiveness) depends on their implementation at the courthouse level. Future research should address the gaps in knowledge about the nature and causes of variation in judges’ beliefs.

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