The federal legal definition of “domestic violence” differs from many state definitions, which may differ from the definition in a municipal ordinance. Some prosecutor’s offices may restrict the definition for their domestic violence team to limit the number of cases a team has to handle, or it may expand the definition to ensure advocacy services for vulnerable victims.
For example, many legal definitions of “domestic violence” include parties who have lived together, but many prosecutors’ offices will give cases involving roommates with no romantic attachment to the regular trial team, not the domestic violence team. Prosecutors can also influence “domestic violence” dockets by not charging domestic assault and charging regular assault, trespass, robbery or some sort of other crime instead.
Child abuse and sexual abuse are often crimes prosecuted by attorneys in specialized units. Separating “child abuse” from “domestic violence” may obscure the reality of the family violence and cause duplicative or conflicting court orders (such as the child abuser who is also a domestic abuser being ordered by one court to take parenting classes in order to reunite with the child, while being ordered by another court to stay away from the child).
Courts may also limit the number of domestic violence cases by defining the definition of “domestic violence” more narrowly than the pertinent statute allows.
Any community considering a specialized criminal domestic violence court should consider whether the existing legal definition of a “domestic” relationship is too restrictive or expansive to be practical. The community must consider whether the definition of a “domestic” relationship should include:
- Spouses and former spouses
- Persons living together or have resided together in the past
- Persons who have a child in common, including gay and lesbian parenting couples and cases where the woman is pregnant but the child has not been born
- Persons related by blood or adoption, including parent-child, siblings, half-siblings and step-siblings.
- Gay and lesbian relationships
- Persons involved in a significant sexual or romantic relationship
Bringing the players to the table
Prosecutor Denice Biros of Vancouver, Washington noted that creation of a specialized domestic violence court is a “difficult process and what’s really important is the cooperation of all the different agencies.”
Judge Fritzler, the major force behind the creation of the Vancouver domestic violence court, explained that popular support, while essential, cannot sustain reform alone. It is a complicated process that can only be successful if all the essential participants and service providers are included in the process. All these participants must buy into the basic principles and concepts… [of a] dedicated domestic violence court.
Corrections Counselor Beth Sharpe of Clark County District Court noted the need in the planning process to “talk to rank and file people.”
The challenge in beginning the process of creating a specialized domestic violence court is bringing together a group that includes the key players without it being too big to be unmanageable. The most important player is often the judiciary because the court cannot specialize without the court itself deciding to do so.
Prior to 1998, the Clark County District Court in Vancouver, Washington had no specialization of any kind. Judge Fritzler envisioned a specialized domestic violence court with combined civil and criminal jurisdiction. With the help of a university professor to organize meetings for interested parties every two weeks for six months, Judge Fritzler had a domestic violence court up and running within a year and a half despite the reluctance of his fellow judges. Judge Fritzler described the purpose of the meetings as, “I wanted input, and I wanted everybody to have their say.”
Any community should consider ways to seek input from the following people:
- Court Administrative personnel
- Court reporters
- Law clerks
- Public Defenders
- Private criminal defense attorneys
- Jail personnel
- Civil process servers
- Treatment providers
- Government Officials
- Advocacy Community
- Survivors of Domestic Violence
- Communities of People of Color
- Non-English speaking communities
- Religious communities
- Gay and Lesbian communities
- Educational community
- Medical community
Funding about Domestic Violence
The creation of the Sacramento Domestic Violence Home Court was made possible by a Violence Against Women Act (VAWA) grant in the amount of $939,020 in 1997. The Sacramento court applied for additional federal funding in 1998 of $2,100, 678 to continue the work of the court and provide for the additional prosecutor, public defender, probation and court staff.
In contrast, the Clark Country Domestic Violence Court experience proved it was “possible to create a major innovative progressive court project within the existing structure of the court without extensive additional funding or outside sources of money.’’ After the court was up and running the decision came to apply for a VAWA grant. The problem, according to Judge Fritzler, was that “everybody wanted a piece of it,’’ including the sheriff’s department, victim advocates of the YWCA, and treatment providers. Despite the difficulty of reaching consensus on the most pressing and necessary services needed, the grant request was submitted and is awaiting review.
Judge Fritzler stressed the importance of providing detailed “state of the court” reports to the county board to ensure consistent funding. Presentations by judges and court staff to the County Commissioners provided an important picture of the anticipated benefits of a specialized domestic violence court. The Superior Court has recently appropriated ten million dollars to construct a family court center that would provide increased security measures, child care, and meeting rooms for victims’ advocates. Judge Fritzler fears that this appropriation is not enough to fund all the services desired.
Jurisdiction and Domestic Violence
1. Civil and Criminal
The Clark County Domestic Violence Court hears both criminal misdemeanor domestic violence and petitions for Orders for Protection. This combined jurisdiction required the Superior Court to allow the District Court jurisdiction over the civil OFPs, matters previously heard only in Superior Court. Communities considering specialization should consider whether civil and criminal jurisdiction can and should be shared between two different court systems.
As discussed previously in this paper, combined jurisdiction may lead to increased pressure on the court and prosecutor to reduce or eliminate criminal consequences if the defendant cooperates in the divorce proceeding. In addition, combined jurisdiction may increase the possibility of a defendant’s Fifth Amendment right being violated if s/he testifies at the civil proceedings, or it may increase the possibility of a victim being cross-examined by the criminal defense attorney.
The advantage of combined jurisdiction is that it reduces or eliminates the possibility of conflicting terms in OFPs and criminal “no contact” orders.” As it is easier for the abuser to manipulate the court system when the abuser appears in front of multiple judges, combined jurisdiction may minimize this possibility.
2. Misdemeanor and felony
Many jurisdictions such as Seattle, Washington have separate courts and prosecuting authorities depending on whether the crime is a felony or misdemeanor. The Municipal Court of Seattle has a specialized domestic violence pretrial calendar for misdemeanor domestic violence cases while felony domestic violence offenses are heard in Superior Court. The Seattle City Attorney’s Domestic Violence Unit prosecutes misdemeanor cases. Court and prosecutor specialization occurs most often at the misdemeanor level because there are virtually always many more misdemeanor domestic violence cases in a jurisdiction than felony cases.
a. Judge acceptable to prosecution and defense. Because both prosecutors and defense attorneys can remove a judge without a stated reason once in a criminal proceeding, it is important that any judge on a domestic violence court be acceptable to both sides. Otherwise, one side could routinely file an affidavit of prejudice on the judge, disrupting the smooth operation of the court. Another option is to have a designated second (or even third) judge; thus, if one side filed on the judge, all parties would know who the alternate judge would be.
All three prosecutor offices in the jurisdictions surveyed for this paper took volunteers for their specialized domestic violence units. This helps ensure that the units self-select prosecutors that have some degree of victim sensitivity.
The Sacramento District Attorney’s Office requires a prosecutor to have some experience in a “victim-sensitive” area (sex crimes or domestic violence) to be eligible for promotion to the highest attorney level. This helps ensure that the prosecutors in these units receive some professional status and that sex crimes and domestic violence are not just dismissed as “women’s issues.” On the other hand, this promotional requirement may mean that prosecutors will request the sex crimes and domestic violence units simply to fulfill the requirement. These prosecutors may not have a high degree of understanding of the complex dynamics of family violence, or the desire to learn those dynamics.
It is worth noting that prior to the creation of the new Domestic Violence Unit in Sacramento, all the attorneys handling domestic violence cases in the old Domestic Violence Unit were women. Now the supervisor and two lead attorneys are male, as are approximately half of the other attorneys in the unit (the current District Attorney is a woman). The influx of money, resources, status and promotional opportunities into a specialized prosecutor unit or court may affect the gender balance in the unit.
Experience of Domestic Violence
As a general estimate, one prosecutor stated that 80% of victims recant or minimize the assault at some point in the criminal justice process. Often, prosecutors will dismiss a case upon the recantation of a victim. In the Sacramento District Attorney’s Domestic Violence Unit, prosecutors must have tried over ten jury trials before coming to the unit. The theory is that experienced trial attorneys are better able to try a case without a victim. Before the Domestic Violence Unit and Domestic Violence Home Court, the average number of domestic violence trials was twenty-one per year. In 1997, there was only one misdemeanor domestic violence jury trial. In 1998, the Domestic Violence Unit tried over thirty jury trials, including ten misdemeanor cases and four cases without a victim.
Physical facilities and Domestic Violence
Domestic violence cases involve not only increased personnel such as probation officers and witness assistants and/or victim advocates, but defendants and victims often have children, family and friends accompany them to court. This requires a courtroom with adequate space. Increased courtroom security is necessary to ensure that victims are not contacted by the defendant in the courtroom as well as walking to and from the courtroom. Ideally, the court provides a separate waiting area for victims. Finally, a large number of defendants typically in custody may require a large holding facility in the courtroom, as well as additional jailers to move the defendant to and from the court.
Probation by Domestic Violence
Court services (probation) officers may perform a variety of functions, including making a lethality assessment for the case, making victim contact by phone or in court, and providing recommendations for release and sentencing conditions. Both the Vancouver, Washington and the Sacramento, California Domestic Violence Courts require automatic court appearances by defendants to check on the status of their participation in batterer intervention programs. Out of court, probation officers may be required to monitor defendants on supervised or intensive probation, meeting with the defendant on weekly or monthly schedules to monitor progress.