Taking the next step in the legal response to domestic violence: the need to reexamine specialized domestic violence courts from a victim perspective.

Author:Wellman, Kathryn Gillespie
 
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INTRODUCTION

S.S. and R.T.'s story involved many of the elements common to domestic violence cases: multiple instances of physical, verbal, and psychological abuse of S.S. by her ex-boyfriend R.T.; initial reluctance on S.S.'s part to report the incident to the authorities out of hope that the violence would simply cease; and the eventual arrest of and entry of an order of protection against R.T. that he repeatedly violated, resulting in the filing of additional charges against him. (1) As these charges moved into court, S.S. assisted the prosecution by providing "detailed written depositions outlining the history and circumstances of the altercations" between her and R.T. (2) Soon afterwards, the case, People v. Tancredi--like many others involving multiple, interconnected matters related to domestic violence in New York--ended up in one of the state's Integrated Domestic Violence ("IDV") courts. (3)

Then, less than a month after R.T. was arraigned in IDV court, his attorney filed a separate lawsuit on S.S.'s behalf, alleging that certain state actors had violated her civil rights by coercing her into testifying. (4) Given the essential role S.S. was playing in the prosecution, the state immediately filed a motion to appoint independent counsel for her. (5) The IDV court, recognizing elements of domestic violence in R.T.'s actions, readily granted the motion:

This Court is part of the community's coordinated response to domestic violence. It would be contrary to our purpose and mission, if individuals charged with domestic violence offenses are permitted to utilize such a questionable attorney client relationship, as a sword, and thereby strategically block the prosecution of their cases.... Victims of domestic violence often fail to follow through with their initial willingness to cooperate with the People's prosecution. Many victims return to their abusive partners due to financial concerns ... [or] due to fear for their safety or that of their family and children. And for some women, having become so entrenched in a cycle of abuse and violence, they return out of habit. By inducing, or by merely permitting a victim to enter into an attorney-client relationship with them, it is conceivable that the attorney participates knowingly or otherwise in the defendant's "strategy of coercive control." (6) The court thus undertook to "provide the victim with a list of advocate organization[s]" to facilitate her access to "an independent and experienced attorney who is fully familiar with the special and unique dynamics of representing a victim of domestic violence." (7)

Tancredi offers a view into the ways in which specialized domestic violence courts, like the IDV court highlighted in the case, can offer an effective response to what has been recognized as a societal epidemic of domestic violence. (8) These courts--although they take slightly different forms in each of the jurisdictions in which they are implemented--are typically defined by a docket dedicated solely to domestic violence-related matters, court personnel trained in intimate panner violence, and close ties to community organizations that offer, among other things, batterer intervention programs and victim support. Whereas a non-specialized court's lack of resources might have prevented it from giving due attention to the state's motion, the Tancredi court was able to analyze in detail the issues it presented. Further, rather than simply assuming that an order of protection alone would keep S.S. safe, the Tancredi court--because of its specialized training in domestic violence--remained attuned to the ways R.T. could harm her, even recognizing how his supposedly benevolent move of aiding S.S. in seeking legal redress for violation of her civil rights might fit into his pattern of manipulation and control. Finally, the court's alliances with domestic violence related community organizations allowed it to facilitate S.S.'s access to qualified counsel, effectively cutting off this route of domination from R.T.

While Tancredi shows specialized domestic violence courts to be a promising step in improving the effectiveness of legal interventions for domestic violence victims, it also illuminates some potential unanticipated consequences a specialized court system could create for victims, in particular, the effect of wide-ranging and centralized judicial intervention on victim self-determination. (9) Battered women's advocates have written extensively on the many unanticipated consequences stemming from initial legal responses to domestic violence in the 1970s. However, there has yet to be a systematic analysis of the origins, history, and causes of these unintended harms over time, leaving a gap in our understanding of the ways in which current interventions may or may not be adequate in addressing them.

As this Note will demonstrate, the specialized domestic violence courts that have sprung up in jurisdictions nationwide over the past few decades have sought to address the unanticipated consequences of prior legal reforms by striving for a more therapeutic, problem-solving approach. Nevertheless, these changes may not adequately address some of the key factors contributing to past harms inflicted on domestic violence victims by the legal system. First, the shift towards specialized domestic violence courts has not fully resolved the epistemological limitations and systemic biases inherent in the judicial system--including the inability of courts to gain adequate knowledge about the experiences, needs, and desires of the actual parties involved in a dispute, prevailing assumptions about the needs and characteristics of victims, and an institutional orientation toward law enforcement goals. Second, the therapeutic problem-solving approach embraced by domestic violence courts brings potential new barriers for victim empowerment and self determination, as individual judges become highly involved in every aspect of victims' lives. As a result, policymakers must recognize the ongoing potential for the legal system to cause collateral injuries to victims. More importantly, they can and should address these possible harms by creating avenues for domestic violence victims to share the stories of their encounters with the legal system, thereby also giving victims a role in reshaping this system to better accommodate their wide-ranging needs.

This Note will draw on Robert Merton's sociological theory of unanticipated consequences to demonstrate how the potential problems identified above may develop in the specialized domestic violence court context and to argue a corresponding need for policymakers to take a second look at these courts from a victim's perspective to ensure the legal system is responding to domestic violence in the most effective and least harmful way possible. Part I will set the framework for this Note by describing Merton's theory. Part II will examine the history of the legal response to domestic violence and the unanticipated consequences that advocates have identified as arising from the very first legal interventions. Part II will then apply Merton's theory to explain how the diverse and widely varied characteristics of domestic violence victims, as well as the values and motives underlying the legal system's involvement, caused these consequences to develop. Part III will describe the latest legal innovation in the field of domestic violence--specialized domestic violence courts--and demonstrate the ways in which the design and functioning of these courts respond to many of the unanticipated consequences that arose from previous legal reforms. Yet, Part III will also discuss how, despite the domestic violence court movement's careful attention to these prior problems, unanticipated consequences for victims are still a potential concern, requiring further scrutiny of specialized courts. Finally, Part IV will conclude that, in order to reexamine these courts from a victim's perspective, it is necessary for policymakers to integrate battered women's voices into their evaluative processes and suggest guiding principles to employ in doing so. (10)

  1. Robert Merton's Theory of Unanticipated Consequences

    Robert Merton first developed his theory of unanticipated consequences in a 1936 paper. (11) Describing how theorists had identified unanticipated consequences in such divergent fields as "moral responsibility" and "social prediction, planning and control," (12) Merton demonstrated the need for a "systematic, scientific analysis" of the phenomenon so as to elucidate where and how unanticipated consequences arise. (13) Merton then set out to provide such an analysis through his own framework, limiting the application of this framework to "purposive social action." (14) Thus, Merton was concerned with conduct motivated by priorities and needs on a societal, rather than individual, level, and with intentional "action which involves motives and consequently a choice between various alternatives." (15)

    Merton's framework describes how five factors influence the development of unintended consequences in any given field of purposive action: (1) inadequate knowledge, (2) error, (3) imperious immediacy of interest, (4) basic values, and (5) self-defeating prediction. (16) Inadequate knowledge may result either because those implementing an action are unaware of "certain aspects of the situation" or as a result of the range of possible consequences that could follow a given action and the corresponding inability of individuals to predict which consequence will occur in a particular case. (17) The error, imperious immediacy of interest, and basic values factors of Merton's framework are interrelated. (18) Error may occur when a group or government planning a particular type of action either assumes that actions that have led to desired outcomes in the past will continue to do so Or attends only to some relevant aspects of the situation at hand...

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