Do no harm: an analysis of the legal and social consequences of child visitation determinations for incarcerated perpetrators of extreme acts of violence against women.

• Author: Conner, Dana Harrington

When the events are natural disasters or "acts" of God," those who bear witness sympathize readily with the victim. But when the traumatic events are of human design, those who bear witness are caught in the conflict between victim and perpetrator. It is morally impossible to remain neutral in this conflict. The bystander is forced to take sides. (1)

It is very tempting to take the side of the perpetrator. All the perpetrator asks is that the bystander do nothing. He appeals to the universal desire to see, hear and speak no evil. The victim, on the contrary, asks the bystander to share the burden of pain. The victim demands action, engagement, and remembering. (2)

**********

The right of an individual in the "care, custody, and management" (3) of his or her children is one of the interests that "form the core of our definition of 'liberty.'" (4) The Supreme Court of the United States has held consistently that the liberty interest guaranteed by the Due Process Clause of the Fourteenth Amendment includes an individual's right to raise his or her children. (5) Directly connected to this liberty interest in rearing one's children is a parent's freedom from government interference. Legal scholars and students of the law have expanded upon this reasoning to argue in support of incarcerated parents' interest in a continuing relationship with their children--specifically, an entitlement to prison visitation. (6) Unlike the recognized parental liberty right in rearing one's child, a parent's right to visitation remains the subject of open debate. (7)

Courts have found that imprisonment alone is an insufficient basis upon which to deny a parent continued contact with his or her child. (8) At the same time, courts also suggest that incarceration does not create an automatic right to visitation. (9) While research suggests prison visitation can benefit parent-child bonding, which is essential to the healthy development of children, (10) it also indicates that the nature of the parent-child bond is a significant factor to be considered in determining visitation rights. (11)

Childhood trauma associated with exposure to severe acts of violence against a parent (12) and the way that exposure shapes bonding complicates this issue further. (13) Regrettably, legal scholars have given little consideration to the nature of the crime for which a parent is incarcerated. (14) Likewise, they have failed to consider how intimate partner violence affects parent-child bonding and ultimately, prison visitation determinations. (15) In addition, a battered woman's right against state interference in the management of her children has garnered little attention in the debate over the visitation rights of incarcerated fathers. (16)

The presumption that parents "will make a child's interest 'their basic concern,'" (17) does not apply to batterers because they tend to manipulate both their victims and the legal system in forcing visitation contrary to the best interest of their children. If a parent's desire to visit with his or her child has little to do with the child's welfare, courts can no longer view this parent as a protector of the child vested with standard privileges.

Unlike with other incarcerated parents, in the case of the batterer father, the nature of his conviction and his distinct characteristics directly relate to his ability to spend time with his children without doing them more harm. Accordingly, courts have a unique opportunity to stop the violence in clear cases involving highly destructive and dangerous role models. In light of these concerns, this Article examines current guidelines that courts use to assess the appropriateness of prison visitation generally and suggests a specialized test for incarcerated batterers. (18)

Accepting the premise that parents have a liberty interest in the "care, custody, and control" of their children, we can move to the crucial issue: that no right is absolute. (19) As a result, this Article argues that violence described by Bonita C. Meyersfield as "extreme acts of violence" against women has legal and social consequences beyond the criminal act. (20) The result in some cases are multiple harms that place children at risk of short-term and long-term negative effects, foreseeable to the batterer, the legal system, and society as a whole. (21) The consequences for causing foreseeable injury to secondary victims like children may include criminal charges and, when necessary, diminished privileges. (22) Some batterers are so dangerous that they must forfeit visitation with their children, (23) while in other cases batterers and children may benefit from therapeutic visitation. (24)

Some may view such restrictions on a parent's interest in visitation with his child as a punishment. (25) The remedy, however, must be understood for its intended purpose--to act as a protective measure for a child who may be suffering from psychological trauma. (26) The debate should center on what is in the best interest of the child, not what is best for the incarcerated parent. (27)

The best interest of the child may be an elusive goal for a system ill-informed about intimate partner violence and childhood trauma. For many judges, the link between intimate partner violence and harm to children is not clear. (28) As a result, judicial visitation determinations made to benefit incarcerated batterers may further traumatize and impede the recovery of children exposed to extreme acts of violence against their mothers. To the extent that future injury is foreseeable, our system of justice must properly respond to the needs of children. (29) Although exposure to extreme acts of violence will not harm all children, (30) by acknowledging that exposure places children in jeopardy, (31) our system can begin to identify those children suffering from trauma and respond to their needs. (32)

1. DEFINING THE ISSUES

   Various forms of legal process define the harm of battering differently and convey particular messages about its social impact. (33) According to the Bureau of Justice Statistics, in 1999, state and federal prisons housed an estimated 721,500 parents. (34) Fathers were more likely than mothers to be violent offenders. (35) In state prisons, forty-five percent of fathers were incarcerated as a result of a violent offense, whereas only twenty-six percent of mothers were incarcerated as a result of committing a violent crime. (36) "Almost half--forty-six percent--of parents in state prison were violent recidivists (repeat offenders with either a current or past violent offense)." (37) The Bureau reports that incarcerated parents in state prisons engaged in other dangerous behavior associated with alcohol use, namely arguments with family members and physical violence. (38) In local jails the situation is worse. The Bureau of Justice Statistics estimates that approximately "1 in 4 convicted violent offenders confined in local jails had committed their crime against an intimate partner]." (39) One study in particular indicated that "[w]omen in the United States are more likely to be victimized, through assault, battery, rape, or homicide, by a current or former male partner than by all other assailants combined." (40) Additionally, experts estimate that approximately ten million children each year witness serious acts of violence committed predominantly against their mothers. (41)

   To discuss intelligently an incarcerated male batterer's legal interests in contact with his children, (42) one must clearly define the individuals in need of protection and the acts at issue. (43) With regard to what has traditionally been called "domestic violence," Elizabeth M. Schneider suggests, at a most basic level of discussion, that how we define the terms and the values we attach to names are particularly important. (44) Many feminists and legal scholars have moved away from the term "domestic violence" to describe the acts of abuse that occur within the context of an intimate relationship and use "intimate partner violence" (IPV) as an alternative term to describe the abuse perpetrated by one adult against another within an intimate relationship. For some, the term "IPV" may also fail to capture the intent and meaning of the violence as it occurs in the family unit. By its characterization, IPV focuses on the violence in the adult relationship, possibly to the exclusion of the children involved. However, when intimate partner violence occurs in the context of the family unit, it is violence to the family as a whole. (45)

   Nevertheless, there are valid reasons why feminists may want to discard the terms "domestic" or "family violence." (46) As Schneider suggests, these long-standing terms devalue the many surrounding issues. (47) Historically, American society has treated domestic and family violence as private matters. (48) The answer, however, may be a simple one. Call it what it is: violence to women and children. As a result, this Article will use the terms "domestic violence," "family violence," and "intimate partner violence" in moderation; the term "violence to women" will serve to signify abuse to women in intimate partner relationships involving children. (49)

   This discussion examines what Bonita C. Meyersfield describes as "extreme violence" including, but not limited to, rape, attempted rape, sexual assault, burning, stabbing, shooting, strangulation, physical torture, intentionally causing "substantial bodily" injury, (50) or threat of serious physical harm perpetrated by one parent against the other parent or household member. (51)

   The intent and focus of this analysis is on individuals who commit intentional acts of violence to harm another--not acts of self-protection. (52) The crimes considered are narrowly defined, focusing on perpetrators to the exclusion of incarcerated survivors who seek access to their children. This Article proposes solutions to respond to the trauma that mothers and children...