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January 23, 2012

JEC- Overview of Domestic Violence

In whatever context it occurs, domestic violence presents the court with unique concerns, the foremost of which is the safety of the litigants and court personnel. These heightened safety concerns arise from the intimate relationship between the perpetrator and the victim of domestic violence. This relationship increases the potential for danger in the following ways:

1.1 Introduction
Domestic violence can affect proceedings in all of New Mexico's courts. It arises in various criminal contexts, ranging in seriousness from misdemeanor property offenses to murder. It can also be an important factor in civil proceedings, most notably in the area of domestic relations. In whatever context it occurs, domestic violence presents the court with unique concerns, the foremost of which is the safety of the litigants and court personnel. These heightened safety concerns arise from the intimate relationship between the perpetrator and the victim of domestic violence. This relationship increases the potential for danger in the following ways:
  • A domestic violence perpetrator typically has unlimited access to the victim. The perpetrator and victim may live together, or have regular contact for purposes of exercising parental rights. If the perpetrator and victim are not living together, the perpetrator typically knows the victim's daily routine, or has ready access to information about the victim's whereabouts.
  • Domestic violence perpetrators exercise a pattern of physical, social, psychological, and/or economic control over their intimate partners. Many abusers who perceive a loss of control over their partners will resort to physical violence to regain it. Accordingly, a court's intervention in abusive behavior may increase the risk of violence for everyone concerned with the case.
  • Domestic violence typically occurs in the privacy of the home, where its only witnesses are under the control of the abuser. These circumstances often impede the court's fact finding process, as well as a victim's ability to participate in it. They may also cause a victim to behave in ways that appear "crazy" to outside observers who do not have the information to discern the "craziness" as a normal response to abuse.
To respond to these concerns, this chapter briefly summarizes some of the research findings on the dynamics of domestic violence, in the assumption that an understanding of this subject will help the court to promote the safety of the parties and court personnel. In using this chapter, however, the reader is cautioned that domestic violence research is a relatively new field of study - psychologists and sociologists have only turned their attention to it within the last 25 to 30 years. Because this field is so new, the following caveats apply:
  • Domestic violence perpetrators can be men or women involved in heterosexual or same-sex intimate relationships, and New Mexico's laws against domestic violence make no distinction based on the parties' gender or sexual orientation. Nonetheless, the discussion in this chapter will assume a heterosexual relationship with a male abuser unless otherwise indicated. The discussion uses this assumption because most domestic violence research has been done in this context. Violence in same-sex relationships and in heterosexual relationships with female abusers has not been much studied to date, and is not well understood. According to the National Crime Victimization Survey (1992-1996), about 85% of victims of intimate violence are women. Although less likely than men to experience violent crime overall, women are 5 to 8 times more likely than men to be victimized by an intimate. Greenfeld, et al, Violence by Intimates, p. 1, 4 (Bureau of Justice Statistics, 1998).
  • While much research regarding heterosexual relationships with male abusers has been published, many questions remain about this type of domestic violence, and studies of it are ongoing. Far less is known about same-sex domestic violence, though some research is beginning to emerge. See, e.g. Lemon, Domestic Violence Law 190-231 (2001) (discussing gay and lesbian battering). Accordingly, the reader should be alert for new information that is likely to appear after the publication date of this Benchbook.
1.2 Defining Domestic Violence
A discussion of all forms of intra-family violence is beyond the scope of this Benchbook. For purposes of this Benchbook, the terms "domestic abuse" or "domestic violence" will be used interchangeably to refer to the following behaviors and parties:
  • In the context of this Benchbook, "domestic violence" or "domestic abuse" is more than an isolated instance of physical abuse within an intimate relationship - it is a pattern of physical, sexual, emotional, and/or financial abuse, perpetrated with the intent and result of establishing and maintaining control over an intimate partner. Ganley, Domestic Violence: The What, Why and Who, as Relevant to Civil Court Cases, Appendix C, p. 2-6, in Lemon, Domestic Violence and Children (Family Violence Prevention Fund, 1995). The abuser's pattern of behavior may include both criminal and non-criminal acts. Criminal behaviors may include: hitting, choking, kicking, assaulting with a weapon, shoving, scratching, biting, raping, kidnapping, threatening violence, stalking, destroying property, and attacking pets. Non-criminal behaviors may include: making degrading comments, interrogating children or other family members, threatening or attempting to commit suicide, controlling access to money, and monitoring the victim's time and activities. The abuse may be directed at persons other than the victim (e.g., children) for the purpose of controlling the victim.
  • The parties to abuse who are the focus of this Benchbook are the adult intimates who form the nucleus of a past, present, or incipient family relationship in its broadest sense. These adults can include past or present spouses, cohabitants, sexual intimates, and dating acquaintances. A discussion of juvenile parties to abuse outside of dating relationships is beyond the scope of this Benchbook. Elder abuse occurring outside the family relationship context is also beyond the scope of this Benchbook.
1.3 Patterns of Violence
Some studies indicate that domestic violence tends to escalate in frequency and seriousness over time, particularly where there is no effective intervention from the criminal justice system or other social institutions. Walker, The Battered Woman Syndrome, p. 26 (Springer, 1984); Civil Protection Orders: The Benefits and Limitations for Victims of Domestic Violence, p. 32 (Nat'l Center for State Courts, 1997). This dynamic makes it important to treat domestic violence incidents as a serious threat to the victim from their earliest manifestations - many domestic violence homicides may be prevented with early intervention against abusive behavior.
Researchers have also reported that in some relationships, domestic abuse follows a predictable course, of which the victim may be aware. Although all violent relationships do not exhibit predictable patterns, some victims may have experienced the abusive pattern so often that they can anticipate when a violent incident is about to occur. Where the parties' relationship exhibits a pattern of violence, the court's understanding of the pattern can provide insight into the parties' behavior and inform efforts to promote safety.
The "cycle of violence" is one common abusive pattern noted in the research. It consists of three stages:
  • During the first stage of the cycle, tension builds gradually between the parties. The abuser expresses dissatisfaction and hostility, but not in an extreme or explosive form. The victim tries to placate the abuser. The victim may succeed for a time, which reinforces an unrealistic belief that it is possible to control the abuser.
  • When the tension becomes unbearable, the abuser proceeds to the second stage - the acute battering incident. This incident becomes inevitable without intervention.
  • After the release of tension in the abusive incident, a third loving contrition stage follows. In this stage, the abuser may express remorse, behave affectionately toward the victim, and promise that the abuse will end. The abuser may sincerely believe that violence will never occur again. Both parties may deny or minimize the abuse, or the victim may accept the abuser's blame for provoking the abuse.
Walker, The Battered Woman Syndrome, p. 95-97 (Springer, 1984).
Researchers studying abuse in same-sex relationships have noted cyclical patterns of violence similar to the "cycle of violence" described above. One study of domestic abuse in lesbian relationships has also reported that like heterosexual violence, lesbian violence tends to escalate over time. Coleman, Lesbian Battering, in Domestic Partner Abuse, p. 79-80 (Hamberger & Renzetti ed., Springer, 1996).
Another dynamic noted by researchers working with victims in abusive relationships is the "Stockholm Syndrome." This dynamic was first noticed in 1973 after hostages in a bank holdup in Stockholm, Sweden, bonded with the captors who had held them for six days. Based on studies of this group and other hostage groups (including battered women), researchers have posited that bonding to an abuser or captor may be an instinctive survival function for individuals who:
  • Perceive a threat to survival and believe that their captor is willing to carry out the threat;
  • Perceive a small kindness from the captor within the context of the terrifying experience;
  • Are isolated from the perspectives of persons other than their captors; and,
  • Believe they cannot escape.
The effect of these conditions on the captive individual has been described as follows:
"As a result of being traumatized, the victim needs nurturance and protection. Being isolated from others, the victim must turn to her abuser for the needed nurturance and protection if she turns to anyone. If the abuser shows the victim some small kindness, this creates hope in the victim, who then denies her rage at the terror-creating side of the abuser - because this rage would be experienced as overwhelming - and bonds to the positive side of the abuser. With the hope that the abuser will let her live, the victim works to keep the abuser happy, becoming hypersensitive to his moods and needs. To determine what will keep the abuser happy, the victim tries to think and feel as the abuser thinks and feels. The victim therefore (unconsciously) takes on the world view of the abuser. Because so much is at stake, namely her survival, the victim is hypervigilant to the abuser's needs, feelings and perspectives. Her own needs (other than survival), feelings and perspectives must take second place to the abuser's. Also, the victim's needs, feelings and perspectives can only get in the way of the victim doing what she must do to survive: they are, after all, feelings of terror. Therefore, the victim denies her own needs, feelings and perspectives. She sees the captors as the 'good guys' and those trying to win her release (for example parents, police or therapists) as the 'bad guys,' as this is the way her captor sees things. The victim projects the anger of the abuser onto the police, whom she sees as more likely to kill her (or get her killed) than the captors....If the victim is given the opportunity to leave the abuser, she will have an extremely difficult time doing so. Having denied the violent, terrifying side of the abuser as well as her own anger, the victim sees no reason to leave him."
Graham & Rawlings, Bonding with Abusive Dating Partners: Dynamics of Stockholm Syndrome, in Dating Violence: Young Women in Danger, p. 121-122 (Levy, ed., Seal Press, 1991).
1.4 Causes of Abuse
Because domestic violence is a relatively new field of study, its causes are still not fully understood.
Many researchers have posited that domestic violence is caused by a combination of social and individual factors. Most characterize it as a pattern of behavior that is learned and chosen by the abuser, and encouraged or discouraged by the abuser's social environment. This section explores the role that various social factors play in the abuser's choice to use violence.
1.4.1 The Environment of Abuse
Researchers have noted three circumstances that are generally present in an environment where abuse is occurring:
The perpetrator has learned to abuse
Domestic violence perpetrators have learned that violence is an effective, legitimate means of controlling their partners. They have learned this lesson by observing violent behavior in others or by engaging in it themselves on a trial-and-error basis, and discovering that it is tolerated, or even rewarded. In New Mexico in 1999, over half of offenders (59%) and victims (57%) served by domestic violence service providers reported experiencing abuse as a child. Caponera, Incidence and Nature of Domestic Violence in New Mexico: An Analysis of 1999 Data from the New Mexico Domestic Violence Data Central Repository, p. iv (June 2000). Violent behavior can be fostered in various private and public social settings. Violent families and societal attitudes that devalue women can contribute to an environment that teaches abuse. The criminal justice system also teaches that abuse is acceptable when it fails to impose appropriate sanctions on violent behavior.
The perpetrator has found the opportunity to abuse
Although violent behavior can be learned in violent families, not all children of violent homes become abusive as adults. Likewise, the vast majority of men who are exposed to social attitudes that devalue women do not commit acts of violence against their domestic partners. For violence to occur, the perpetrator must also find the opportunity to "get away with it," and choose to act on this opportunity. Opportunities for domestic violence occur in environments where it is tolerated. Abusers who believe that they will "get away with" violence against their domestic partners will have no motivation to change their behavior, particularly if they have learned that violence is an effective tool for asserting control in their intimate relationships. Indeed, social tolerance for domestic violence reinforces the lessons of violence by allowing abusers to succeed in asserting control over their victims without suffering negative consequences. The criminal justice system plays a critical role in ending opportunities for abuse by treating violence against an intimate partner at least as seriously as it treats violence against a stranger.
The perpetrator has chosen to abuse
Learning and opportunity alone do not produce domestic violence. The third prerequisite to violent behavior is the perpetrator's choice to engage in it. Domestic violence is not "out-of-control" behavior. Common abusive behavior patterns illustrate how abusers calculate their actions to avoid risk to themselves, while maximizing control over their victims. Some abusers injure only those parts of the victim's body that are not readily seen by others. Others batter the victim as a surrogate for someone over whom they have no control, such as an employer. Many abusers will destroy only the victim's possessions, while leaving their own intact. These behaviors evidence choice, refuting the notion that domestic violence involves the abuser's loss of control.
These circumstances are noted in: Ganley, Domestic Violence: The What, Why and Who, as Relevant to Civil Court Cases, Appendix C, p. 9-14 in Lemon, Domestic Violence and Children (Family Violence Prevention Fund, 1995); Merrill, Ruling the Exceptions: Same-Sex Battering and Domestic Violence Theory, p. 14-17, in Violence in Gay and Lesbian Domestic Partnerships (Renzetti & Miley, ed., Harrington Park Press, 1996); and, Farley, A Survey of Factors Contributing to Gay and Lesbian Domestic Violence, p. 36-41 in Violence in Gay and Lesbian Domestic Partnerships, above.
Note: Some researchers have posited that the foregoing circumstances are also prerequisites to violence in same-sex relationships. These researchers cite evidence that a significant percentage of lesbian and gay abusers may have learned violence in their families of origin. They further note that the opportunity to abuse arises from society's reluctance to accept same-sex relationships as legitimate, and from the reluctance of the lesbian and gay communities to acknowledge that same-sex violence occurs. These attitudes contribute to an environment in which the abusive partner can batter the victim without fear of intervention or consequence, and reinforce the choice to use violence. See Merrill, above, and Farley, above.
Courts can play a critical role in discouraging domestic abuse by treating violence between domestic partners at least as seriously as violence between strangers. Indeed, domestic violence may be a more serious threat to the victim and society than stranger violence, for it entails an increased risk of repeat assault on the victim and the potential for long-term damage to children who are present in a violent home. When courts consistently and fairly enforce the laws against domestic violence they help to remove opportunities for violence, and contribute to an environment in which domestic violence is just as unacceptable as any other type of violence. Many abusers will be motivated to stop their violent behavior upon discovering that it will cause them significant legal and social consequences. Fagan, The Criminalization of Domestic Violence: Promises and Limits, p. 14, 39 (Nat'l Inst of Justice, 1996). See Section 1.8 on the effects of domestic violence on children.
1.4.2 Factors That Commonly Accompany Domestic Violence Without Causing It
Although abusive behavior occurs because the abuser chooses it, many people (including abusers) erroneously characterize domestic violence as out-of-control behavior caused by circumstances commonly present in violent households, such as alcohol and drug use, stress, unresolved anger, or problems inherent in the relationship. While these factors often accompany domestic abuse and may intensify its severity, they do not cause it. The following discussion explores the relationship between these factors and domestic abuse.
Alcohol and drug use
Researchers generally agree that alcohol and drug use do not cause domestic violence. Ganley, above, p. 11-12; Civil Protection Orders: The Benefits and Limitations for Victims of Domestic Violence, p. 33, 45-46 (Nat'l Center for State Courts, 1997). Although studies show a high correlation between these two behaviors, researchers have rejected a causal connection between them, noting that most abusive men who successfully complete alcohol or drug treatment continue to abuse their partners if the violence is not also addressed separately. In New Mexico in 1999, one third (34%) of domestic violence cases reported by law enforcement identified alcohol/drug use. Of these, 95% (6,079) involved use of alcohol/drugs by suspects, and 14% involved used of alcohol/drugs by victims. Caponera, Incidence and Nature of Domestic Violence in New Mexico: An Analysis of 1999 Data from the New Mexico Domestic Violence Data Central Repository, p. iv (June 2000). The connection between these behaviors appears to arise from the intensifying role that alcohol and drug use may play in violent relationships. Researchers have reported that abusers with a history of heavy drug or alcohol use tend to engage in intensified violence toward their domestic partners. Alcohol and drug use can lower the abuser's inhibitions and provide an excuse for "losing control." Indeed, some abusers admit to using alcohol in certain situations in order to batter.
Because alcohol or drug use do not cause domestic violence, effective intervention in cases where the abuser is drug or alcohol dependent must be directed at both the violence and the substance abuse. Because it may intensify the severity of violence, drug and alcohol use is one of the factors to consider in assessing whether the abuser is likely to kill or seriously injure the victim.
Stress and anger
Stress and anger are not primary causes of domestic violence. Studies show that many battering episodes are calculated to gain the victim's compliance, and occur when the abuser is not emotionally charged. Indeed, an abuser's display of anger may merely be a tactic to intimidate the victim. Moreover, when domestic violence is regarded as a pattern of behavior that unfolds over time, specific irritants or stressors become less meaningful in explaining the entire pattern. Ganley, above, p. 12-13.
Many researchers believe that effective intervention in abusive behavior must focus on the fact that abuse is the sole choice and responsibility of the abuser. Although abusers may benefit from learning stress or anger management skills, they will not cease to abuse unless these skills are taught in the context of a program that regards violence as a choice for which abusers must be held accountable. See Stordeur & Stille, Ending Men's Violence Against Their Partners, p. 29, 50, 57 (Sage Publications, 1989).
Problems inherent in the relationship
Abusers frequently escape responsibility for their violent choices by blaming the abuse on their victims. Blaming the relationship is a variation on this theme, because it gives the victim at least partial responsibility for the abuse. A troubled intimate relationship does not inevitably lead to violence, however; most people who experience relational difficulties respond to them without violence. Ganley, above, p. 13-14. Safe, effective domestic violence interventions recognize that only the abuser has the power to stop the abuse.
Victims are endangered by interventions that require them to share responsibility for the abuse by working cooperatively with the abuser to resolve the parties' relational difficulties. Accordingly, couples counseling and family therapy are inappropriate as primary interventions for abuse. These interventions endanger victims by putting them into a situation where they must disclose information that their abusers may subsequently use against them. Moreover, couples or family counseling may put the parties into physical proximity with one another, creating opportunities for abuse. Finally, where the victim shares responsibility for resolving the parties' difficulties, the abuser may feel justified in using abuse as "punishment" when the couple's difficulties continue; indeed, many victims report assaults following couples therapy sessions. Stordeur & Stille, above, p. 25-26; Walker, The Battered Woman Syndrome, p. 118 (Springer, 1984).
For similar reasons, mediation, community dispute resolution, and arbitration are also inappropriate interventions for violent relationships. Because these interventions require equal bargaining power between the parties, they cannot operate fairly in situations involving domestic violence, where the abuser wields all the power. Furthermore, domestic violence cannot be a subject for negotiation or settlement between the victim and abuser because the victim has no responsibility for changing the abuser's behavior. This is particularly true where the abuse rises to a criminal level; mediation between a crime victim and perpetrator is just as inappropriate in cases involving domestic violence as it is in cases involving stranger violence.
1.4.3 Illness-Based Violence
Most researchers regard domestic abuse as a learned, chosen pattern of behavior characterized by calculated actions versus a lack of control by the abuser. In some cases, however, domestic violence may be a product of a mental illness, such as psychosis or Alzheimer's Disease. Unlike cases where the violence is learned, chosen behavior, these cases truly involve a loss of control by the abuser. Illness-based violence can be distinguished from learning-based violence in several ways:
  • The perpetrator of illness-based violence does not usually select a particular, consistent victim; instead, abuse is directed at any person present when the violent impulses arise.
  • Illness-based violence is often accompanied by other symptoms of disease, such as changes in speech or gait, or delusional thinking.
  • Poor recall of the abuse does not necessarily indicate illness-based violence. Abusers who are not mentally ill often deny or minimize their behavior.
Stordeur & Stille, above, p. 24-26; Ganley, above, p. 11.
1.5 Understanding the Abuser - Assessing Lethality
This section will explore some common characteristics of domestic abusers, as well as factors indicating that an abuser is likely to kill or inflict serious physical harm.
1.5.1 Characteristics of the Abuser
Domestic violence occurs in all social groups, without regard to the parties' racial, ethnic, economic, religious, educational, professional, or social backgrounds, or their sexual orientation. It is not restricted to the ranks of the impoverished, unemployed, or substance-dependent. Because it often occurs within the privacy of the home, domestic violence may be well-hidden from outside observers, including family members who are not living in the household where the abuse occurs. Indeed, many abusers appear to be devoted to their families, and have positive characteristics that mask the injuries they inflict. Rygwelski, Beyond He Said/ She Said, p. 11, 20- 24 (Michigan Coalition Against Domestic Violence, 1995).
Although there is no "typical" abuser, domestic violence perpetrators commonly exhibit certain characteristics. Some of these characteristics include:
Dependency and jealousy
Many victims report that their abusers are extremely jealous and possessive. Possessive abusers are emotionally dependent on their partners, which makes them susceptible to a number of conflicting emotions, including fear of abandonment, and anger at their dependence. In the context of these feelings, an abuser's behavior may be seen as an effort to prevent abandonment, or as a means of denying the need for the victim's companionship. Extremely jealous abusers may be so possessive that they are willing to kill their victims rather than face losing control over them. Stordeur & Stille, Ending Men's Violence Against Their Partners, p. 44-46 (Sage Publications, 1989).
Belief in men's entitlement to dominate women
Male abusers may subscribe to a rigid ideal of men's dominant role, with the accompanying belief in men's entitlement to control over persons and events in the household. Id., p. 51-52. Although this characteristic (male domination of women) is unlikely to describe abusers in same-sex relationships, domination and control are common, if not central, features of both heterosexual and gay and lesbian battering. See generally Lemon, Domestic Violence Law 190-231 (2001) (discussing domestic violence in same-sex relationships).
Abusers are often psychologically and socially isolated. They tend to be distrustful of others, afraid of intimate relationships, and unable to share or recognize emotions other than anger. While they may have numerous contacts and acquaintances within the community, these tend to be superficial. Isolation increases an abuser's dependence on the victim, along with the attendant jealous, possessive behavior. Id., p. 49-50.
"Jekyll and Hyde" personality
Most abusers are not violent all the time - victims and others often describe them as charming and lovable. The loving, caring facet of an abuser's behavior can be one means of convincing the victim to stay involved in the relationship after a violent incident. Id., p. 48-49.
Poor interpersonal skills
As children, abusers may have had little opportunity to learn interpersonal skills in their families. Their lack of skills gives them few alternatives other than anger and violence to manage conflict or express feelings. Abusers may lack the ability to recognize or acknowledge the emotions they feel, and may perceive most negative feelings as anger. They often have problems with verbally expressing their thoughts, feelings, and needs. Some researchers have noted that assaultive men are poor listeners who cannot communicate directly, especially about their feelings. An abuser may confuse assertiveness with aggression. Abusers frequently misperceive neutral communications or interactions as being threatening or insulting to them; for example, a partner's brief delay in meeting him may cause an abuser to assume that she is having an affair. Id., p. 38-41.
Refusal to accept responsibility for the violence
When confronted with their violent behavior, abusers commonly avoid responsibility by denying that it occurred, lying about it, minimizing its nature or significance, or blaming it on outside factors such as stress, drunkenness, or provocation from the victim. Ganley, Domestic Violence: The What, Why and Who, as Relevant to Civil Court Cases, Appendix C, p. 14 -16 in Lemon, Domestic Violence and Children (Family Violence Prevention Fund, 1995). The court may hear such statements as:
"It was an accident."
"I didn't hurt anyone."
"I didn't even use my fist."
"The kids didn't see it."
"The cop didn't like me."
"I couldn't take the nagging anymore."
"I was drunk."
"I've been under a lot of pressure lately, and I lost control."
"She's having an affair. I just want to save my family."
1.5.2 Lethality Factors
Domestic violence kills its victims with alarming frequency. F.B.I. statistics indicate that 30% of all reported female homicide victims in the United States each year are killed by a current or former husband or boyfriend. Special Report, Bureau of Justice Statistics, U.S. Dept. of Justice (May 2000). This deadly potential requires vigilance in all cases involving domestic violence.
Assessing the lethality of a situation is difficult, because abusive relationships can be unpredictable. Lethal violence may occur unexpectedly, without any advance warning from the abuser's behavior, or it may be preceded by one or more circumstances that serve as danger signals. In the latter case, researchers have found that certain factors can often reveal an abuser's potential for serious violence.
One such "lethality factor" is the recent separation of the couple. The U.S. Department of Justice has reported that 75% of the domestic assaults reported to law enforcement agencies occur after the victim is divorced or separated from the assailant. Bureau of Justice Statistics, Report to the Nation on Crime and Justice, p. 33 (U.S. Dept. of Justice, 1988). This statistic reflects the dynamic of power and control that is present in abusive relationships. Abusers who perceive that they have lost control over their victims will often intensify their efforts to regain it, resorting in extreme cases to homicide as the ultimate act of dominance over the victim.
Other lethality factors are noted in the following list. While it is impossible to predict with certainty what a given abuser will do, the presence of the following factors can signal the need for extra safety precautions - the more of these factors that are present in a situation, the greater its danger.
  • The victim (who is familiar with the abuser's patterns of behavior) believes the abuser's threats may be lethal.
  • The abuser threatens to kill the victim or other persons.
  • The abuser threatens or attempts suicide.
  • The abuser fantasizes about homicide or suicide.
  • Weapons are present, and/or the abuser has a history of using weapons.
  • The abuse involves strangling, choking, or biting the victim.
  • The abuser has easy access to the victim or the victim's family.
  • The couple has a history of prior calls to the police for help.
  • The abuser exhibits stalking behavior.
  • The abuser is jealous and possessive, or imagines the victim is having affairs with others.
  • The abuser is preoccupied or obsessed with the victim.
  • The abuser is isolated from others, and the victim is central to the abuser's life.
  • The abuser is assaultive during sex.
  • The abuser makes threats to the victim's children.
  • The abuser threatens to take the victim hostage, or has a history of hostage-taking.
  • The severity or frequency of violence has escalated.
  • The abuser is depressed or paranoid.
  • The abuser or victim has a psychiatric impairment.
  • The abuser has experienced recent deaths or losses.
  • The abuser was beaten as a child, or witnessed domestic violence as a child.
  • The abuser has killed or mutilated a pet, or threatened to do so.
  • The abuser has started taking more risks, or is "breaking the rules" for using violence in the relationship (e.g., after years of abuse committed only in the privacy of the home, the abuser suddenly begins to behave abusively in public settings).
  • The abuser has a history of assaultive behavior against others.
  • The abuser has a history of defying court orders and the judicial system.
  • The victim has begun a new relationship.
  • The abuser has problems with drug or alcohol use, or assaults the victim while intoxicated or high.
Rygwelski, above, p. 49-52; Walker, et al, Domestic Violence and the Courtroom: Understanding the Problem ... Knowing the Victim, p. 4 (American Judges Foundation, 1995).
1.6 Abusive Tactics
An abuser's primary motivation is to maintain control over the victim. Abusers are master manipulators who employ physical assault in conjunction with other tactics to achieve their objective. Abusers' tactics have been compared to the brainwashing tactics used against prisoners of war, which include isolation, threats, occasional indulgences, demonstrations of omnipotence, degradation, and enforcement of trivial demands - abusers may employ similar patterns of physical, sexual, financial, and emotional coercion to control their victims. Walker, The Battered Woman Syndrome, p. 27- 28 (Springer, 1984); Graham & Rawlings, Bonding with Abusive Dating Partners: Dynamics of Stockholm Syndrome, in Dating Violence: Young Women in Danger p. 121-122 (Levy, ed., Seal Press, 1991). These tactics prevent victims from leaving abusive relationships. In addition to physical assaults or threats, abusers' control tactics may include:
Emotional abuse of the victim
Emotional abuse may consist of isolating the victim from family and friends, making degrading remarks to the victim, blaming the victim for the abuse, constantly monitoring the victim’s activities, stalking, playing “mind games,” threatening suicide if the victim leaves the relationship, and making and enforcing extensive, egregious rules.
Using children as vehicles for abuse of the victim
Abusers frequently involve the victim's children in their efforts to assert control. Some abusers kidnap, sexually abuse, or physically harm the victim's children, or threaten to commit one of these acts. Others initiate or threaten to initiate court proceedings to remove the children from the victim's home, or use court-ordered parenting time as an opportunity to harass the victim. Abusers may also force children to act as informers against the victim, or to deliver threats to the victim.
Controlling the finances
An abuser may maintain control in a relationship by limiting the victim's access to the couple's money, or by preventing the victim from getting or keeping a job. This interference with the victim's economic independence makes financial abuse a major factor in preventing victims from leaving abusive relationships.
Sexually abusing the victim
This form of abuse includes rape, forced sexual acts, verbal degradation, forced sexual contact in front of the children, threats to find another partner if the victim refuses sex, and injury to the sexual areas of the victim's body. Sexual abuse may also include the abuser's refusal to take appropriate precautions against unwanted pregnancy or sexually transmitted diseases.
Note: Domestic violence victims in same-sex relationships are subject to the same abusive tactics as heterosexual victims. Like heterosexual domestic violence victims, lesbian and gay victims may suffer emotional, sexual, and psychological abuse in addition to physical assault. Like heterosexual abusers, lesbian and gay abusers target particular vulnerabilities of their victims. One commonly exploited vulnerability in same-sex relationships is the victim's fear of being publicly exposed as lesbian or gay. Victims who fear such exposure experience extreme isolation, which prevents them from leaving the violent relationship, or from seeking assistance outside of it. Another common vulnerability arises from the HIV infection of one of the partners. In a variation of the notion that "if I can't have you, no one can," an infected abuser may deliberately infect the victim to keep the victim in the relationship. An HIV infected victim may be threatened with public exposure of his or her HIV status, or with interference in efforts to obtain medical attention. Elliott, Shattering Illusions: Same-Sex Domestic Violence, p. 3-4, and Letellier, Twin Epidemics: Domestic Violence and HIV Infection Among Gay and Bisexual Men, p. 72-76, in Violence in Gay and Lesbian Domestic Partnerships, (Renzetti & Miley, ed., Harrington Park Press, 1996).
Abusers may extend their controlling tactics to situations within the courtroom. Such tactics may be employed before, during, and after court proceedings to demonstrate control to the victim, and to manipulate the court's response to the abuser. The following list gives examples of abusive tactics that court personnel may encounter:
  • Physical assaults or threats of violence against the victim, those providing refuge, and others inside or outside the courtroom.
  • Threats of suicide.
  • Threats to take the children.
  • Harassment intended to coerce the victim to dismiss proceedings, or to recant previous testimony.
  • Following the victim in or out of court.
  • Sending the victim notes or "looks" during proceedings.
  • Bringing family or friends to the courtroom to intimidate the victim.
  • Long speeches about how the victim "made me do it."
  • Statements of profound devotion or remorse to the victim and to the court.
  • Repeated requests for delays in proceedings.
  • Requests for changes of counsel or failure to follow through with appointments of counsel.
  • Intervening in the delivery of information from the court to the victim so that the victim will be unaware of when to appear in court.
  • Requests for mutual orders of protection as a way to continue control over the victim and manipulate the court.
  • Continually testing the limits of parenting time or support arrangements, e.g., arriving late or not appearing at appointed times.
  • Threats and/or initiation of custody fights to gain leverage in negotiations over financial issues.
  • Initiating retaliatory litigation against the victim or others who support the victim.
  • Making false reports of child abuse or neglect by the victim.
  • Enlisting the aid of parent rights groups to verbally harass the victim (and sometimes courts) into compliance with demands.
  • Using any evidence of damage resulting from the abuse as evidence that the victim in an unfit parent.
From Tennessee Domestic Abuse Benchbook, p. 23- 24 (Tenn. Task Force Against Domestic Violence, 1996). See also Zorza, Batterer Manipulation and Retaliation in the Courts, 3 Domestic Violence Report 67 (June/July, 1998).
The court can take steps to intervene in abusive courtroom tactics, as follows:
  • Develop a safe place in the courthouse for victims to wait until their case is called. In criminal proceedings regarding felonies or serious misdemeanors, the court should provide a waiting area for the victim separate from the defendant, defendant's relatives, and defense witnesses, if such an area is available and the use of the area is practical. If a separate waiting area is not available or practical, the court should provide other safeguards to minimize the victim's contact with defendant, defendant's relatives, and defense witnesses during court proceedings.
  • Call domestic violence cases as early as possible on the court docket or have a docket that is solely for domestic violence cases.
  • Communicate from the bench that the court takes evidence of domestic violence seriously.
  • Require the alleged perpetrator to remain in the courtroom until the victim has left the building.
  • Provide victim with an escort from the courthouse.
  • Be alert for multiple court actions or orders concerning the same parties, including conducting checks of the protective order registry.
1.7 Understanding the Victim
This section will explore victims' coping and survival strategies, and the effect that they can have on victims' interactions with the court system.
1.7.1 How Victims Cope With Domestic Violence
Domestic violence victims vary in their survival strategies, depending upon their individual personal characteristics and the nature of the social environment in which they find themselves. Walker, The Battered Woman Syndrome, p. 7-10, 33 (Springer, 1984). They exhibit no specific "personality profile." Some victims may appear to be no different from other people, having adopted behavior that conceals the abuse they suffer. Other victims may appear to engage in "crazy" behavior. Despite appearances of "craziness," most researchers do not believe that domestic violence victims suffer from masochism or other types of psychological disorders; rather, they agree that seemingly "crazy" behavior exhibited by some victims is better understood as a normal survival or coping response to the abuser's "crazy" behavior.
The following discussion lists common survival or coping strategies that victims may display:
Minimizing or denying the violence
Like abusers, some victims minimize or deny the violence in their lives. Some victims deny or minimize the violence in the abuser's presence or in public settings (such as courtrooms) in order to protect themselves from further retaliatory violence. Victims may also minimize their experiences with violence or their emotional responses to it to survive the emotional trauma they suffer. Douglas, The Battered Woman Syndrome, in Domestic Violence on Trial, p. 43 (Sonkin, ed., Springer, 1987). In other circumstances, victims may minimize or deny the violence due to fear of immigration repercussions, limited ability in English, or religious beliefs. Ramos, M.D., Cultural Considerations in Domestic Violence Cases: A National Judges Benchbook §2.34 at p. 2-43 (1999) [hereinafter Ramos, Cultural Considerations].
Taking responsibility for the violence
Instead of objecting to the violence against them, some victims may blame themselves for it, focusing on their own perceived failings as a cause of the abuse. This attitude may arise because the abuser has convinced the victim to take the blame, or because the victim has acceded to the abuser's exercise of control in the relationship. Abusers encourage this response to violence because it reinforces their own efforts to deny responsibility. Rygwelski, Beyond He Said/ She Said, p. 25 (Mich. Coalition Against Domestic Violence, 1995).
Using alcohol or drugs
Domestic violence victims may use alcohol or drugs as a means of numbing the effect of the violence. If the abuser is alcoholic or drug dependent, the victim may be forced to join in the use of these substances to prevent abuse. Some victims receive prescription medication from their physicians as a means to cope with the anxiety resulting from the abuse. These medications may impair a victim's ability to judge the dangerousness of an abusive situation or to seek protection. Douglas, above.
Self defense
Domestic violence victims may act to defend themselves or their children. An analysis of data on crimes by current or former spouses, boyfriends, or girlfriends published by the Bureau of Justice Statistics reported that 77% of female victims of nonlethal intimate violence actively defended themselves. Greenfeld, et al, Violence by Intimates, p. 19 (Bureau of Justice Statistics, 1998; data collected between 1992-1996). Of these, 43% tried to escape from the offender, called the police or other help, or used other non-confrontational means of self-defense. Thirty-four percent confronted the offender by struggling, shouting, chasing or other means without a weapon (30%) or with a weapon (4%).
Religious, cultural constraints
If a female victim believes that the male partner must be the dominant figure in a household, she may regard his abuse as an acceptable extension of his dominance. Under this family concept, she may believe that her efforts to escape are inappropriate or that others in her community will ostracize her if she attempts to leave.
Seeking help
Many domestic violence victims actively seek help, often without success. Some researchers have found that victims’ efforts to seek help tend to increase as the danger to themselves and their children increases.
Other victims may experience cultural pressures not to discuss the abuse outside of their communities, making it difficult for them to seek medical, legal, and other help. Ramos, Cultural Considerations §1.39 at p. 1-33. Moreover, language differences and lack of familiarity with available social and legal services may prevent some victims from seeking help. Id. §2.17 at p.2-15.
Remaining in the abusive relationship
Leaving an abusive relationship can have serious physical consequences for the victim. In response to victims' efforts to leave, many abusers will escalate the physical violence - often to lethal levels - as they seek to reassert control in the relationship. The victim's recent separation from the abuser is a lethality factor. When seen in this light, a victim's "crazy" decision to stay with an abuser makes sense as a survival tactic.
The threat of death or serious injury upon separation from the abuser is not the only obstacle to leaving a violent relationship. Victims trapped in a violent relationship often face other formidable barriers to escape, including:
  • The victim feels that staying in the relationship is best for the children.
  • The victim has no employment skills or is financially dependent on the abuser.
  • The victim has no housing if she leaves the relationship.
  • The victim cannot afford legal assistance with divorce, custody, or protection order proceedings.
  • The victim fears the intervention of the court system.
  • The victim fears losing custody of children if the violence is reported or revealed in divorce proceedings. Some abusers deliberately give victims misinformation about their legal rights to prevent them from seeking legal recourse.
  • The abuser has isolated the victim from the social or family connections that could otherwise provide support after leaving the relationship.
  • The victim has accepted the blame for the abuse and is attempting to change in the hope that it will stop.
  • The abuser has expressed remorse and promised to change. A victim who loves the abuser will want to believe such promises.
  • The abuser has degraded the victim, making statements such as, "You are worthless without me," or "Nobody cares about you but me." Victims who believe these types of statements do not have the self-confidence necessary to escape the violence.
Jones, Why Doesn't She Leave? 73 Mich. Bar Journal 896 (1994); Ganley, Domestic Violence: The What, Why and Who, as Relevant to Civil Court Cases, Appendix C, p. 20-25, in Lemon, Domestic Violence and Children (Family Violence Prevention Fund, 1995).
Note: Lesbian and gay victims stay in violent relationships for the same reasons as heterosexual victims stay - financial dependence, fear of retaliation, fear of court intervention, and lack of will to resist the violence. Due to society's reluctance to accept same-sex relationships as legitimate, the social isolation that many heterosexual victims feel is often felt more intensely by lesbian and gay victims. Lesbian and gay victims may be reluctant to seek outside intervention in an abusive relationship because they fear discrimination by criminal justice authorities, or public exposure as members of the lesbian or gay communities. For HIV infected victims who are financially or physically dependent on their abusers, leaving the relationship may seem completely impossible. For victims whose abusive partners are HIV infected, leaving the relationship may mean leaving an ill or dying person without a primary caregiver, and facing the disapproval of a circle of friends who may not regard the abuse as a serious problem. Elliott, Shattering Illusions: Same-Sex Domestic Violence, p. 5-7, and Letellier, Twin Epidemics: Domestic Violence and HIV Infection Among Gay and Bisexual Men, p. 77-78 in Violence in Gay and Lesbian Domestic Partnerships, (Renzetti & Miley, ed., Harrington Park Press, 1996).
1.7.2 Victims in Court
Victims may fail to participate in court proceedings in the following ways:
  • Publicly agreeing with the abuser's denial or minimization of a violent incident.
  • Avowing love for the abuse.
  • Making statements supporting the abuser.
  • Fleeing the jurisdiction, along with the children.
  • Abandoning proceedings.
Although these actions may seem illogical to observers outside of the violent relationship, they can make sense if they are regarded as survival tactics. Domestic violence victims know their abusers better than anyone else and they choose strategies to minimize injury based on past success. Although the strategies above may be ineffective to end the abuse in the long term, many domestic violence victims are so involved in a day-to-day struggle to preserve their own lives and the lives of their children that they cannot focus on the long range effects of the violence or on the possibility of forging a new life apart from the abuser. Accordingly, they are likely to view the court's intervention only in terms of its immediate effect upon their safety and/or the relationship. Ganley, above, p. 23; Rygwelski, above, p. 26. They are most likely to participate in court proceedings if they perceive some immediate benefit from going forward. The following discussion explores some of the specific concerns that affect domestic violence victims during court proceedings.
Many victims fail to participate in court proceedings due to a legitimate fear of death or injury at the hands of the abuser. Abusers frequently coerce victims to remain silent about the violence, either by injuring them so that they cannot speak or by threatening them with death or injury. Coercive threats may also extend to others who associate with a victim. The following factors may indicate that a victim's failure to participate has been coerced:
  • The victim appears in court with the abuser to request that court proceedings be terminated.
  • One attorney appears in court to act on behalf of both the victim and the abuser.
  • The respondent has a history of past violence.
  • The allegations of violence are serious.
If any of these factors (or any other suspicious circumstance) is present, the court should consider obtaining more information about the parties' situation before taking action.
Ambivalence about the outcome of court proceedings
Domestic violence victims desire protection. They also share with the court its purpose to stop the violence. They may, however, be apprehensive about the effects of court proceedings on their relationships, particularly when it comes to abuser accountability. Victims who are not committed to abuser accountability may abandon legal proceedings after the violence has stopped but before the abuser has suffered the legal consequences for it. Some researchers have pointed out that victims may negotiate their safety by threatening criminal prosecution, without intending to follow through. If the threat of prosecution has the effect of stopping the violence, the criminal justice system has succeeded from the victim's point of view, even if it has not meted out punishment to the abuser. Tolman & Edleson, Intervention for Men Who Batter, in Understanding Partner Violence: Prevalence, Causes, Consequences, and Solutions, p. 264 (Nat'l Council on Family Relations, 1995).
Particularly when the abuser faces a jail term, a victim's ambivalence about abuser accountability may stem from concern with family preservation or improvement of the relationship with the abuser. A victim may also be concerned with the potential for financial hardship if the abuser is jailed or for retaliatory violence when the jail term is completed. Despite these legitimate victim concerns, being held accountable in court can be a powerful impetus for an abuser to change. The victim's concerns with abuser accountability can be addressed in the following ways:
  • Stress to all parties concerned that the court is in control of the proceedings, not the victim. In criminal matters, let the alleged abuser and victim know that criminal proceedings are a matter between the defendant and the state, not between the defendant and the victim.
  • Permit work release in appropriate cases.
  • Provide for adequate family support whenever appropriate.
  • Impose immediate sanctions upon violations of court orders restraining violent behavior.
  • If the victim abandons a court proceeding, make it clear to all parties concerned that the court's doors will remain open to offer future protection if necessary. Like any other major life transition, separation from a domestic partner is a process, rather than one specific event. The victim may leave and return to the abuser several times before making a permanent end to the relationship; this process may not succeed unless the court's doors remain open to offer necessary protection. Rygwelski, above, p. 50.
Lack of confidence that the court will be effective in stopping the violence
A victim's past experience with the justice system may contribute to the perception that it will neither stop the violence nor offer adequate protection from injury. The following factors can erode the victim's confidence:
  • Procedural delays.
  • Complex court proceedings.
  • Discourteous court employees.
  • Misinformation about the court system given by the abuser or uninformed service providers.
  • Recurrence of violence despite the issuance of court orders restraining the abuser.
  • Failure of law enforcement officers to arrest abusers who violate court restraining orders.
  • Failure of prosecutors to prosecute domestic violence offenses.
  • Failure of courts to impose appropriate sanctions for domestic violence offenses.
A court can increase its credibility as a resource for domestic violence victims in a number of ways:
  • Maintain the confidentiality of information in court documents that would identify the victim's whereabouts, if the victim is in hiding from the abuser and there is a reasonable apprehension of acts or threats of physical violence or intimidation by the abuser.
  • Provide for expedited proceedings in cases involving domestic violence. Under the Victims of Crime Act, §31-26-1, the victim has a right to "speedy disposition of the case." §31-26-4(B)
  • Provide domestic violence training for court personnel.
  • Provide clear information about court proceedings to unrepresented parties.
  • Treat domestic violence offenses as least as seriously as offenses involving stranger violence.
  • Work with community criminal justice and social service agencies to develop a clear, coordinated policy for domestic violence offenses.
1.8 Domestic Abuse and Children
This section discusses children's involvement in adult domestic violence and its effects on them.
1.8.1 Children's Involvement in Adult Violence
Children are exposed to adult domestic violence in various ways: they witness it; they are used by the abuser to control the victim; and they suffer physical consequences incident to the adult violence.
Witnessing the violence
Although parents often minimize or deny the presence of children during violent incidents, studies show that up to 90% of children from violent households are aware of the abuse. In New Mexico in 1999, 3,710 children were present at the scene of 19,822 cases of domestic violence as reported by law enforcement. Almost 3/4 (74%) of the children who witnessed domestic violence were not yet adolescents (12 years and under). There were 6,687 domestic violence service provider reports that identified 2,545 (38%) domestic violence incidents where children were present at the scene. Additionally, 25% (3,313) of the 13,184 clients served by statewide domestic violence service providers were children. Nationally, more than half of female domestic violence victims live in households with children under age 12, and 4 in 10 offenders in state prisons for crimes against intimates had an average of 2.2 young children residing with them. Caponera, Incidence and Nature of Domestic Violence in New Mexico: An Analysis of 1999 Data from the New Mexico Domestic Violence Data Central Repository, p. iv (June 2000).
Children perceive the adult violence in their homes in a variety of ways. They may be eyewitnesses to all or part of a violent incident, or they may catch a fleeting glance of it. They may hear the sounds of abuse - the screaming or crying, the breaking glass, the impact of the blows. Children can also see the victim's tears, along with the blood, bruises, torn clothing, splintered furniture, and broken glass that evidence abuse after an incident has occurred. Finally, children notice the tension between the adults in a violent home - they see their mother jump when her abuser's car pulls in the driveway or when the abuser enters the room. Hart, Children of Domestic Violence: Risks and Remedies, Child Protective Services Quarterly (Pittsburgh Bar Ass'n, Winter, 1992); Walker, The Battered Woman Syndrome, p. 59 (Springer, 1984).
Using children to control the adult victim
A common tactic of domestic abusers is to use the children in the household to control the adult victim. Ganley, Domestic Violence: The What, Why and Who, as Relevant to Civil Court Cases, Appendix C, p. 27, in Lemon, Domestic Violence and Children (Family Violence Prevention Fund, 1995). Domestic abusers are likely to:
  • Deliberately abuse their adult victims in the presence of the children.
  • Interrogate the children about the victim's activities.
  • Force the victim to be in the company of a child always.
  • Take the child away after a violent episode to prevent the victim from fleeing.
  • Threaten violence against the child, or against a pet or object that is important to the child.
  • Encourage the child to participate in the physical or emotional abuse of the victim.
  • Isolate the child along with the victim.
Because domestic violence often escalates when the victim attempts to leave the abusive relationship, the victim's separation from the abuser will not always be sufficient by itself to protect the children from the violence. The following abusive tactics may be employed after a violent couple separates:
  • Engaging in lengthy battles over custody or parenting time.
  • Detaining or concealing children.
  • Abducting the children, or holding them hostage.
  • Using parenting time to interrogate the children about the victim or to blame the victim for the separation.
  • Using parenting time to abuse the children.
  • Demanding unlimited access to the children.
  • Making abusive contacts with the victim's home or work place under the pretext of arranging for access to children.
Physical consequences of violence for children
Children living in violent households are at increased risk for suffering bodily injury. In New Mexico, 22% (576) of children victim-witnesses as reported by domestic violence service providers experienced physical abuse from the current offender of the adult victim, and 7% (147) experienced sexual abuse from the current offender of the adult victim. A 1990 study found that as violence against women becomes more severe and more frequent in the home, children experience a 300% increase in physical violence by the male batterer. Caponera, Incidence and Nature of Domestic Violence in New Mexico: An Analysis of 1999 Data from the New Mexico Domestic Violence Data Central Repository, p. iv (June 2000). Such injury may be unintentional, occurring incident to the adult violence. Some children are harmed when they intervene to defend or protect a parent victim. Assaults on victims who are holding young children in their arms often result in injury to the children as well as the victims. Children can also be struck by furniture or other objects thrown by adults during a violent incident. Ganley, above, p. 26.
Adult domestic violence can have other devastating physical consequences for children beyond bodily injury. Domestic violence can deprive children of housing, schooling, or medical care. Flight from domestic violence often leads to homelessness among victims and children, and is a primary reason why adolescents run away from home. Richie, The Impact of Domestic Violence on the Children of Battered Women, Children's Aid Society Newsletter, p. 3 (Spring, 1992). Because abusers sometimes find victims who are in hiding by obtaining addresses from children's school or health care records, some victims fail to enroll their children in school or seek medical care for them out of fear that the abuser will discover their whereabouts.
Children from violent households can also face dislocation at the hands of the court or child protection system, which may remove them from the victim's care - or terminate the victim's parental rights - due to a "failure to protect" them. Advocates for domestic violence victims assert that the removal of children from the home on this basis is founded on two faulty assumptions, namely: (1) the victim is principally responsible for the safety of the children; and (2) the victim has the power and resources to protect the children. These assumptions overlook the abuser's control of the choice to behave violently toward the victim, and the abuser's deliberate use of physical and psychological tactics to incapacitate the victim. Furthermore, these assumptions reinforce abusive behavior by placing the blame for it on the victim, thus allowing the abuser to escape responsibility for the negative consequences of the violence. Victim advocates suggest that a more effective way to protect children from adult violence is to protect the abused parent by intervening in the abuser's patterns of power and control and insisting that the abuser take responsibility for the violence. Zorza, Batterer Manipulation and Retaliation in the Courts, 3 Domestic Violence Report 68, 75 (June/July, 1998); Jackson, Intervention with Children Who Have Witnessed Abuse, p. 3-4 (House of Ruth, Baltimore, MD, 1996).
1.8.2 Effects of Adult Violence on Children
Whether they witness the abuse or are abused themselves, children suffer from involvement with adult domestic violence. In addition to causing physical injury, domestic violence can have a profound impact on children's core beliefs about themselves, those in authority, and those with whom they have intimate relationships. The trauma and anxiety it produces can impede children's development by preventing them from forming healthy emotional attachments with others, and by derailing their efforts to learn basic social skills. This devastating emotional, cognitive, and behavioral damage can be manifested even after a child reaches adulthood. The following discussion explores some specifics of these effects. Jackson, above, p. 4-5; Ganley, above, p. 28-29.
Emotional effects
Domestic violence terrorizes children. Once a violent incident has occurred, children may experience pervasive anxiety that another attack is imminent. They may feel rage at both the abuser and the victim, or confusion, guilt, shame, and helplessness. If the family is separated as a result of the abuse, children often experience grief and depression. See Saunders, Child Custody Decisions in Families Experiencing Woman Abuse, 39 Social Work 51, 52-53 (1994), and Crites & Coker, What Therapists See That Judges May Miss, Judges' Journal, 9, 11-12 (Spring, 1988).
Cognitive effects
Domestic violence teaches children that violence is normal, effective behavior. Children in violent homes with a heterosexual male abuser learn that men are aggressive and domineering, while women are powerless and deserving of abuse. They learn that they and their mothers are worthless, and that adults cannot be trusted. Children in violent homes may learn to equate caring with abuse. They frequently believe that they are to blame for the abuse, particularly if the parental conflict involves child care issues. This belief is reinforced when the abuser tells the children that the victim deserves the abuse, or that it is occurring for their own good. If children are threatened or punished when they disclose the violence in their homes, they may learn to be deceptive and indirect in their communication with others.
Behavioral effects
Domestic violence can cause developmental delays in children. Children in violent households may experience delayed development of speech, motor, and cognitive skills. Anxiety over their family situation may interfere with their ability to function in school or cause learning disabilities. They may also develop somatic complaints, such as insomnia, diarrhea, bedwetting, or frequent illnesses. Some children experience eating or sleeping disorders, withdrawal, over-compliance, clinginess, aggression, destructive rages, detachment, regressive behavior, a fantasy family life, or thoughts of suicide.
A few children turn to violent behavior themselves as a result of observing adult domestic violence. Sixty-three percent of all males between ages 11 and 20 who are imprisoned for homicide in this country killed their mother's batterer. An Oregon study reported that 68% of the delinquent youth in treatment programs had witnessed their mother's abuse and/or had been abused themselves. These youth had committed such crimes as arson, assault, rape, and murder. Ninety percent of the youth within the group were abusing alcohol, and 89% were abusing drugs. A 1985 Massachusetts study found that children who witnessed the abuse of their maternal caretaker were:
  • 24 times more likely to commit sexual assault crimes.
  • 50% more likely to use drugs and/or alcohol.
  • 74% more likely to commit crimes against another person
  • 6 times more likely to commit suicide.
Studies cited in Edwards, Reducing Family Violence: The Role of the Family Violence Council, 43 Juvenile and Family Court Journal 1 (1992), and Jackson, supra, p. 5.
Effects on adult behavior
Children carry the effects of domestic violence into their adult lives. The failure to acquire normal academic or interpersonal skills in childhood may adversely impact an adult's abilities to maintain a job or an intimate relationship. Moreover, children - especially males - who have witnessed domestic violence in their homes are at increased risk for perpetuating abuse in the families they form as adults. In one study, men who had seen their parents physically attack each other were three times more likely to hit their wives than those who had not. The Effects of Women Abuse on Children, p. 11-12 (2d ed., Nat'l Center on Women & Family Law, 1994).
1.9 Ethical Concerns with Judicial Participation in a Coordinated Community Response
Judges may find it valuable to participate in or even organize a vehicle for coordinating the response of governmental and non-governmental domestic violence services providers in their communities. Some communities within New Mexico and across the country have established domestic violence coordinating councils to bring together courts, probation services, domestic violence shelters, anger management therapists, prosecuting and defense attorneys, law enforcement, and others involved in assisting treatment programs and victim protection efforts. Councils address such issues as efficiency of services, avoiding duplication, and exchanging information about services and problems, among other issues.
A judge who wishes to participate in coordinated planning efforts with other community providers of domestic violence services should do so, but must be careful to observe limitations imposed by the New Mexico Code of Judicial Conduct, as it has been interpreted by opinions of the Advisory Committee on the Code. These limitations are primarily aimed at preventing any actions undermining the appearance of judicial impartiality, or of lending the prestige of judicial office to support private interests. In particular, the Advisory Committee has emphasized in analogous situations the importance of avoiding service on boards where the organization or its members or clients are likely to appear before the judge with any degree of frequency.
Please note that the following discussion is intended as a general guide to ethical issues that a judge should consider before participating in a domestic violence coordinating council or similar effort. It is not an authoritative advisory opinion on which a judge may rely. Whether or not a judge may participate in such efforts will vary with on the circumstances of each situation. A judge should consult the Advisory Committee on the Code of Judicial Conduct before engaging in any undertakings that may be questionable under the Code.
The New Mexico Coalition Against Sexual Assault has created a legal judicial committee that includes judges as members, but not officers. The mission statement of the committee has been carefully crafted to avoid ethical conflicts for the participating trial judges and may serve as a model for other communities:
Legal Judicial committee will meet for the purposes of
  1. Information exchange with members
  2. Having a better understanding of the operational activities of each organization
  3. Taking a critical look at the systemic issues within the legal judicial system and identify problems
  4. Developing information to provide to the coalition with the ultimate goal of improvement of the legal judicial system (i.e., Legislative education and awareness).
A judge's participation in a domestic violence coordinating council is subject to the general constraints on participation in extra-judicial activities set forth in the Code of Judicial Conduct:
21-500. A judge shall so conduct the judge's extra-judicial activities as to minimize the risk of conflict with judicial obligations.
A. Extra-judicial activities in general. A judge shall conduct all of the judge's extra-judicial activities so that they do not:
  1. cast doubt on the judge's capacity to act impartially as a judge;
  2. demean the judicial office;
  3. interfere with the proper performance of judicial duties....
Paragraph C of §21-500 limits the judge's ability to "consult with an executive . . . body or official" to situations where the matters under consideration concern "the law, the judiciary or matters relating to the judiciary or which affect the interests of the judiciary, the legal system or the administration of justice." While a judge's participation in a coordinating council could be construed as "consulting" with any public officials who would almost necessarily serve on such a body, the breadth of this exception would seem to allow the judge's service so long as other requirements of the Code were satisfied. As found in an opinion issued by the New Mexico Advisory Committee on the Code of Judicial Conduct in Advisory Opinion 86-4:
A judge may serve as a member or officer in a council on crime and delinquency as long as the prestige of office is not used for the benefit of the organization.
Indeed, judges are not only permitted, but encouraged by the Code to engage in civic activities that enhance the administration of justice, to the extent that the judge's time permits:
As a judicial officer and person specially learned in the law, a judge is in a unique position to contribute to the improvement of the law, the legal system, and the administration of justice, including revision of substantive and procedural law and improvement of criminal and juvenile justice. To the extent that time permits, a judge is encouraged to do so, either independently or through a bar association, judicial conference or other organization dedicated to the improvement of the law.
Code of Judicial Conduct, official commentary to §21-500(B) [emphasis added].
Even if a domestic violence coordinating council or similar entity is or appears to be a governmental or non-profit organization, a judge may participate as an officer or director of the organization so long as the judge acts within the limits of the Code, §21-500(C):
(3) A judge may serve as an officer, director, trustee or non-legal advisor of an organization or governmental agency devoted to the improvement of the law, the legal system or the administration of justice or of an educational, religious, charitable, fraternal, or civic organization not conducted for profit, subject to the following limitations and other requirements of this Code:
(a) A judge shall not serve as an officer, director, trustee or non-legal advisor if it is likely that the organization:
(i) will be engaged in proceedings that would ordinarily come before the judge; or
(ii) will be engaged frequently in adversary proceedings in the court of which the judge is a member or in any court subject to the appellate jurisdiction of the court of which the judge is a member.
In this regard, the Advisory Committee on the Code of Judicial Conduct has noted the impropriety of a judge's service on the board of a domestic violence shelter:
A judge should not serve as the president of the board of directors of a shelter for victims of domestic violence. Although the board has no fund-raising responsibilities, limits its activities to approving budget items and has no access to the names of those served by the charity, service on this committee would create the appearance of impropriety and cast doubt on the judge's impartiality. The charity is organized to shelter victims of domestic violence, and these persons are likely to appear in court. The defendants in such actions could reasonably believe that the judge knew the victim or that the judge was biased in favor of the victim.
Advisory Opinion 88-7.
The Advisory Committee has expressed its opinion that a judge may serve on the board of a non-profit organization that provides psychological and emotional support for crime victims, so long as the organization or individuals receiving its services would not be likely to appear in front of that judge, and other requirements of the rule were satisfied. Advisory Opinion 98-05. On the other hand, Advisory Opinion 96-06 stated that a Child Support Hearing Officer may not serve as a member of a Court-Appointed Special Advocates program whose volunteers would appear regularly before the court of which the hearing officer was a part, even though the CASA volunteers did not ordinarily appear before the hearing officer herself.
The Advisory Committee has further recommended against service by a judge on a board of a neighborhood association that identified itself as a "non-profit statewide advocacy organization serving as a voice for children, youth and families and those who love them," where the organization's services included funding programs concerning community patrolling, landlord training, and enforcement of nuisance abatement laws. The organization also was "involved in DWI legislation, compliance checks on outlets selling tobacco to youth, and the shutdown of drug houses." The Advisory Committee noted that the organization or its members, or persons that they advised, or persons charged with violations of the law as a result of the organization's activities, might appear before the judge. Similarly, the judge's impartiality could be called into question since the judge might be called upon for advice to the organization, which might itself become a potential litigant before the judge. The committee felt that these conflicts would violate Rule SCRA 21-500(A) and (C).
The judge thus must avoid service in any capacity to an organization that could cast doubt on the judge's impartiality. In particular, the judge must avoid service altogether to an organization that may appear, or whose members or clients may appear, before that judge or the court of which the judge is a part. Judges must also carefully limit any involvement in fundraising to conform to subparagraph (b) of §21-500 C (3). But while these and similar considerations must be kept in mind and the ethical rules adhered to, this caution need not prevent a judge's service on a domestic violence coordinating council or similar entity whose purposes are properly limited, like the Legal Judicial committee above appears to be.
The underlying support of the Code for judicial involvement in such planning activity lies in the value of such service to the administration of justice. If a community coordinating council can improve the safety of victims, provide the court with more accurate and thorough information on which to base its rulings, provide better opportunities for appropriate treatment referrals, or help various service organizations coordinate their services to allow greater efficiency, faster response times and greater compatibility among treatment and protective services, then the judge's careful participation in such an effort should be consistent with the letter and spirit of the Code of Judicial Conduct.
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