Deborah Epstein,* "Rethinking the Roles of Prosecutors, Judges, and the Court System," 11 Yale J.L. & Feminism 3 (1999).

*Associate Professor and Director of the Domestic Violence Clinic, Georgetown University Law Center. The Author is a member of the D.C.
Domestic Violence Coordinating Council, served as co-chair of the effort to create and implement the District of Columbia's new integrated
Domestic Violence Court, is Co-Director of the D.C. Superior Court's Domestic Violence Intake Center and Director of the D.C. Emergency
Domestic Relations Project. I am indebted to Naomi Cahn, Vicki Jackson, Catherine Klein, Anne Schroth, Michael Shuman, Robert Spagnoletti,
and Wendy Williams for their insightful comments on earlier drafts of this Article. I also would like to thank Rhonda Armstrong, Erica Niezgoda,
and Lila Maxwell for their valuable research assistance.

We have become increasingly content - even complacent - to serve as technicians and tinkerers in the law rather than aspiring to the role of
transformers, system shakers who risk alienation but seek real substantive change. n1

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n1. Craig Haney, Psychology and Legal Change: The Impact of a Decade, 17 Law & Hum. Behav. 371, 384 (1993).

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Introduction

Despite over two decades of reform, fundamental failures persist in the justice system's response to domestic violence. n2 Society now widely
accepts elimination of intrafamily abuse as a crucial goal, and it has been illegal in most states since the late nineteenth century. n3 But the
problem remains one of epidemic proportions. As documented in Part I of this Article, battering by husbands, ex-husbands, or lovers is the single
largest cause of injury to women n4 in the United States, n5 and accounts for approximately thirty percent of all murders of women. n6 Physical
aggression occurs in at least one out of four marriages, and comparable rates exist among couples who are living together, engaged, or dating.
n7 Domestic violence is also a major contributing factor to other social ills such as child abuse and neglect, female alcoholism, drug abuse,
mental illness, attempted suicide, and homelessness. n8

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n2. No single term can adequately capture an individual's experience of domestic violence; I use the terms "victim," "battered woman," and
"survivor" interchangeably.

n3. See Elizabeth Pleck, Wife Beating in Nineteenth-Century America, 4 Victimology: An Int'l J. 60, 60-63 (1979).

n4. The vast majority of domestic violence cases involve male perpetrators and female targets. Although cases exist in which the gender roles
are reversed, or involve same-sex intimate abuse, I will refer to perpetrators primarily as male and targets primarily as female.

n5. See Susan A. MacManus & Nikki R. Van Hightower, Limits of State Constitutional Guarantees: Lessons from Efforts to Implement Domestic
Violence Policies, 49 Pub. Admin. Rev. 269, 269 (1989).

n6. See Bureau of Justice Statistics, Violence by Intimates v (1998).

n7. See Jan E. Stets & Murray A. Straus, The Marriage License as a Hitting License: A Comparison of Assaults in Dating, Cohabiting and Married
Couples, in Physical Violence in American Families: Risk Factors and Adaptations to Violence in 8,145 Families 227, 234; Irene H. Frieze & Angela
Browne, Violence in Marriage, in 11 Family Violence: Crime and Justice - A Review of Research 163, 179 (Lloyd Ohlin & Michael Tonry eds.,
1989); David B. Sugarman & Gerald T. Hotaling, Dating Violence: Prevalence, Context, and Risk Markers, in Violence in Dating Relationships 3,
6-7 (Maureen A Pirog-Good & Jan E. Stets eds., 1989).

n8. See Rita Thaemert, National Center for State Legislatures, Til Violence Do Us Part 26 (Mar. 1993) [hereinafter Til Violence Do Us Part]; Jane
H. Pfouts, Violent Families: Coping Responses of Abused Wives, 57 Child Welfare 101, 105 (1978).

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Yet centuries of strong opposition to - or deep ambivalence about - state intervention in family violence cases has long undermined any
meaningful government response. As detailed in Part II, not long ago the law explicitly endorsed domestic violence, upholding a husband's right
to physically "chastise" his wife. It is only during the last thirty years that public awareness of intimate abuse, the perception that it is
unacceptable, and the political will to effect reform have increased, resulting in substantial improvements on the legislative front. During this
period, every state has enacted civil laws designed to protect victims of family violence, and Congress has appropriated considerable funding of
further efforts to combat the problem. But the state's response to domestic violence remains inadequate. Why?

In contrast to the remarkable progress made by legislators, those responsible for applying and enforcing the law - prosecutors, judges, and the
court system - have lagged far behind. It has long been common practice for police to refuse to arrest, for prosecutors to decline to press
charges, and for judges to be reluctant to issue civil protection orders or impose meaningful sentences on batterers. Overall, the system's
response to domestic violence has been unresponsive and oriented toward non-enforcement.

A law is only as good as the system that delivers on its promises, and the failure of the courts and related institutions to keep up with
legislative progress has had a serious detrimental impact on efforts to combat domestic violence. This gap, between the responsive legislative
branch and the unresponsive judicial and executive branches, suggests where the next generation of reform must focus - on a fundamental
restructuring of the traditional justice system's approach to this age-old social problem.

As discussed in Part III, the criminal justice system still requires substantial improvement, despite the recent enactment of some reforms.
Certainly, costly lawsuits and mandatory arrest laws have reduced instances where the police refuse to respond or take effective action in
domestic violence situations. n9 And prosecutorial refusal to press criminal charges in most intrafamily cases has diminished, in a smattering of
jurisdictions, with the formation of specialized domestic violence units and the adoption of "no-drop" prosecution policies. n10 These changes
have increased general deterrence of domestic violence crimes and greatly improved the prospects for victim safety. But they also raise new
concerns. A survivor may now be forced to assist in the criminal prosecution of an abusive partner, regardless of her physical danger from
retaliation assault, her cultural and religious misgivings about breaking up the family, her economic vulnerability to the loss of spousal support,
and her individual need for agency and control. These difficult issues underscore the need for further improvements, such as the expansion of
specially-tailored prosecution strategies and an increased role for lay victim advocates. An increase in victim advocacy services reduces some
survivors' dependency on the criminal justice system and helps them find the strength to escape the cycle of abuse on their own. And for those
who need government intervention, a lay advocate can amplify a victim's voice so that a prosecutor can better shape his case to meet the
victim's needs.

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n9. See Joan Zorza, The Criminal Law of Misdemeanor Domestic Violence, 1970-1990, 83 J. Crim. L. & Criminology 46, 53-65 (1992); Del Martin,
Battered Wives 92 (1981); Murray A. Straus, Behind Closed Doors: Violence in the American Family 232 (1980).

n10. See Cheryl Hanna, No Right to Choose: Mandated Victim Participation in Domestic Violence Prosecutions, 109 Harv. L. Rev. 1849, 1852-53,
1861-62 (1996).

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The piecemeal nature of the traditional court system, explored in Part IV, presents further obstacles for battered women seeking justice.
Incidents of domestic violence typically trigger multiple civil and criminal cases, each with distinct and complicated intake processes that occur
in different parts of the courthouse or even in different court buildings located miles apart. This fragmented process hopelessly confuses most
victims, and few manage to file for all the forms of complementary relief they need. Those who succeed are then faced with a different judge on
each case, each of whom proceeds in an informational vacuum, with no awareness of related cases. A typical family can find itself coping with
multiple, conflicting orders that simultaneously govern its existence.

One promising solution to these problems has recently been embraced by a handful of jurisdictions: the creation of integrated, specialized
domestic violence courts. Dedicated exclusively to cases involving allegations of intimate abuse and to the integration of civil and criminal
dockets, such a court can provide the kind of comprehensive, coordinated response to family violence that is the key to effective intervention.
n11 A unified intake center can assist with the filing of all civil and criminal claims, and one specialized judge can be assigned to deal with all
issues confronting a single family or intimate partnership. The success of the District of Columbia's new Domestic Violence Court illustrates the
potential benefits of an integrated intake and court calendaring system.

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n11. Specialized courts created to address a particular subject area are slowly becoming a staple of many jurisdictions around the country. The
concept of the "drug court" is a now-familiar alternative approach to handling criminal prosecutions of less serious drug offenders. See generally
Jeffrey Tauber, President's Perspective, National Association of Drug Court Professionals News 1, 1, Winter, 1997. Several states have
implemented or are seriously considering implementing a unified "family court." See National Center for Juvenile Justice, National Council of
Juvenile and Family Court Judges, Snapshot: Family Courts in the United States (Nov. 1996); The Illinois Supreme Court Special Commission on
the Administration of Justice, Final Report Part II 38-39 (Dec. 1993) (on file with author).

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But an increase in information-sharing can create its own problems. For example, it increases the likelihood that battered women who come
forward to seek a civil protection order will expose themselves to government charges of "failing to protect" their children from the batterer's
abuse. This Article explores ways to minimize this disincentive to obtaining assistance, and to maximize the remedial resources available to both
women and children who have suffered physical and emotional harm.

Finally, Part V suggests ways to root out the long-standing hostility exhibited by court personnel and judges toward domestic violence
complainants. Most judges and clerks have little understanding of domestic violence as a complex web of social and psychological difficulties;
instead, they operate from a lifetime of exposure to the myths that have long warped the public's attitude toward the problem. The result is a
widely prevalent anti-victim bias. Judges and clerks tend to be easily frustrated with battered women. They perceive victims as "refusing" to
leave violent relationships, and misinterpret victim behavior as intentional when in fact it may be symptomatic of the psychological trauma
induced by extended abuse. Judicial education, in conjunction with extensive experience with domestic violence cases, can help correct this
problem. But any judicial training program must be designed with care to preserve neutrality, and the defense bar concern that judicial
education may create an anti-perpetrator bias must be taken seriously by the victim advocacy community. A direct relationship exists between
perceptions of "procedural justice" and perpetrator compliance with court orders, and issuance of a civil protection order will mean little to a
victim if the batterer views the order as illegitimate and therefore feels free to ignore it.

Despite their relatively poor track records, prosecutors, judges, and the courts can play a constructive role in combating family abuse. As the
last and sometimes the only resort of victims seeking protection, n12 it is essential that these sectors of the justice system improve their
responses.

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n12. See National Council of Juvenile & Family Court Judges, Family Violence: Improving Court Practice 3 (1990) [hereinafter Improving Court
Practice].

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I. Why Prioritize Domestic Violence in System Reform Efforts?

Three years ago, I sat in the D.C. Superior Court courtroom designated for domestic violence cases. As my client and I waited for her case to
be heard, we listened to another woman tell her story to the judge. n13 She described how her husband had punched her repeatedly in the left
eye, and showed the judge a photograph of her face, her eye bruised and swollen. Her husband then took the stand and denied everything; he
claimed she had walked into a door. At the conclusion of the hearing, the judge turned to the woman and said:

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n13. This story, and others like it throughout this article, is based on my personal experience in working with hundreds of clients litigating
domestic violence cases. The names of all persons have been changed to protect their privacy and, in some instances, attorney-client privilege.
Minor details of some stories have also been altered to make the cases less easy to identify and further protect victim privacy.

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Ma'am, I credit your testimony, and am convinced that your husband assaulted you in violation of the law. As a result, I am authorized to award
you a civil protection order, which could order him to stay away from you and stop hurting you. But I'm not going to do that today. Because
you have children together, you're going to have to find some way to cooperate with each other to raise them. So I want you to go home and
try to work things out in private. And I suggest that you go see a movie I saw recently, called "Mrs. Doubtfire," where Robin Williams and his
wife decide to separate, but still manage to find a creative way to work together when it came to their children.

(In this slapstick comedy, Robin Williams' wife asks him to move out; he gets extra time with the children by dressing up as a woman and
hoodwinking his wife into giving him a job as their nanny).

This story is not atypical of the contemporary response of many judges, prosecutors, and police to victims of domestic violence. But doesn't the
judge in the "Mrs. Doubtfire" case have a point? After all, a punch in the eye is a low-level, misdemeanor offense, especially when compared to
the kind of violence common on our city streets. So many aspects of the justice system cry out for repair; complaints abound about family and
juvenile courts, failures to adopt community policing policies, and the need to adopt a crime victims' "bill of rights." Why prioritize domestic
violence for special reform efforts?

One reason is that domestic violence is rarely a one-time event, and without effective intervention, it typically increases in frequency and
severity over time. n14 A woman who comes to court today with a black eye is likely to return a few months later with a permanent bald spot
caused by her husband pulling a handful of hair out of her head, or with a few of her teeth knocked out with a hammer. n15 A batterer who
enters the criminal justice system later in the abusive dynamic is more likely to commit a felony than a misdemeanor, or to reach the point
where he commits one of the murder-suicides that are relatively common in these cases. n16

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n14. See, e.g., Angela Browne, When Battered Women Kill 68 (1987); Lenore E. Walker, The Battered Woman 43-44 (1979).

n15. I have represented numerous domestic violence survivors who have been subjected to these types of injuries.

n16. Murder-suicides are not uncommon in domestic violence cases. See Jacquelyn C. Campbell, Methodological Issues in Risk Assessment
Research for Family Violence, paper presented at Program Evaluation and Family Violence: An International Conference (July 27, 1998) (stating
that 30% of U.S. intimate partner homicides are homicide-suicides); Department of Justice Canada, Domestic Homicides Involving the Use of
Firearms 29 (Mar. 1992) (stating that 47% of all domestic homicides involving a firearm resulted in suicide or attempted suicide of the accused
and that the same is true for 71% of all firearm-related murders in which husbands killed their wives); Dora Black et al., Father Kills Mother:
Post-Traumatic Stress Disorder in the Children, 57 Psychotherapy & Psychosomatics 152 (1992); Donna Wills, Domestic Violence: The Case for
Aggressive Prosecution, 7 UCLA Women's L.J. 173, 181 (1997).

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A pattern of escalating violence takes a profound toll on women, both physically and psychologically. Women are more likely to be beaten, n17
raped, n18 or killed n19 by a current or former male partner than by anyone else. Between twenty-two and thirty-five percent of women who
visit hospital emergency rooms are there due to injuries sustained as a result of domestic violence. n20 More women seek medical attention for
harm inflicted by a spouse than for injuries caused by auto accidents, rapes, and muggings combined. n21

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n17. See Angela Browne, Violence Against Women: Relevance for Medical Practitioners, 267 JAMA 3184, 3185 (1992).

n18. See Diana E. H. Russell, Rape in Marriage 64 (1982).

n19. See Angela Browne & Kirk R. Williams, Exploring the Effect of Resource Availability and the Likelihood of Female-Perpetrated Homicides, 23
Law & Soc'y Rev. 75, 78 (1989).

n20. See Teri Randall, Domestic Violence Intervention Calls for More Than Treating Injuries, 264 JAMA 939, 939 (1990).

n21. Til Violence Do Us Part, supra note 8, at 26.

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Another reason to prioritize domestic violence is the harm inflicted on children through adult battering relationships. This battering starts early:
national surveys report that seventeen percent of obstetrics patients are battered. n22 Pregnant victims have an inflated risk of miscarriage
and are four times more likely to deliver low birthweight babies. n23 The damage continues after birth. Nearly half of all homeless women and
children have been forced to flee violence in their homes. n24 And children who witness violence between adults are at risk of physical harm
when they are caught in the crossfire, either accidentally or (particularly with adolescent boys) while trying to intervene to protect their
mothers. n25 Approximately sixty-three percent of young men between the ages of eleven and twenty who are imprisoned for homicide have
killed their mothers' batterers. n26 These boys also have higher rates of suicide, violent assault, sexual assault, and alcohol and drug use. n27

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n22. See Judith McFarlane, Barbara Parker, Karen Soeken, & Linda Bullock, Assessing for Abuse During Pregnancy: Severity and Frequency of
Injuries and Associated Entry Into Prenatal Care, 267 JAMA 3176, 3177 (1992) (in study of 691 black, Hispanic, and white women in public
prenatal clinics in Houston and Baltimore, 17% reported physical and/or sexual abuse during pregnancy).

n23. See Judith McFarlane, Battering During Pregnancy: Tip of an Iceberg Revealed, 15 Women & Health 69, 71, 73 (Fall 1989).

n24. See Women and Violence: Hearings Before the Senate Comm. on the Judiciary on Legislation to Reduce the Growing Problem of Violence
Crime Against Women, 101st Cong., 2d Sess., pt. 2, at 142 (1991) (statement of Susan Kelly-Dreiss, discussing several Pennsylvania studies);
Til Violence Do Us Part, supra note 8, at 26.

n25. See, e.g., Peter G. Jaffe et al., Children of Battered Women 26 (1990); Maria Roy, Children in the Crossfire: Violence in the Home - How
Does It Affect Our Children? 92 (1988) (stating that 62% of sons over age 15 living in families where adult-on-adult abuse occurred were injured
in attempts to rescue mothers from beating by male partners). "The younger the children, the more likely injuries would be serious, such as
broken shoulders, ribs, concussions." Id. at 92. These children also suffer psychological injury. See Jaffe et al., supra, at 26-30.

n26. See Women and Violence: Hearings Before the Senate Comm. on the Judiciary on Legislation to Reduce the Growing Problem of Violence
Crime Against Women, 101st Cong. 131 (1991) (statement of Susan Kelly-Dreiss).

n27. See id. (statement of Sarah M. Buel, Assistant District Attorney, Mass., and Supervisor, Harvard Law School Battered Women's Advocacy
Project).

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The impact does not stop with the batterer's children. Growing up, we learn life-long patterns dictating how we will respond when our gut-level
buttons are pushed: with words or with violence. Children who are raised watching one parent abuse the other tend to take the latter course;
boys who witness violence against their mothers are ten times more likely to batter female partners when they reach adulthood. n28 Girls exhibit
a similar pattern of becoming victims of domestic violence. n29 This home-schooling process also forges a link between domestic and stranger
violence. A recent national study, for example, showed that juvenile delinquents are four times more likely to have come from violent homes.
n30

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n28. See id. at 89 (testimony of Charlotte Fedders); see also Naomi R. Cahn, Civil Images of Battered Women: The Impact of Domestic Violence
on Child Custody Decisions, 44 Vand. L. Rev. 1041, 1055-56 (1991); Gerald T. Hotaling & David B. Sugarman, An Analysis of Risk Markers in
Husband to Wife Violence: The Current State of Knowledge, 1 Violence & Victims 101, 106 (1986); Straus, supra note 9.

n29. See, e.g., Hotaling & Sugarman, supra note 28, at 106.

n30. See Bureau of Juvenile Justice, Violence by and Against America's Children, Digest XVII(12), at 6 (on file with author); see also Donna M.
Welch, Mandatory Arrest of Domestic Abusers: Panacea or Perpetuation of the Problem of Abuse? 43 DePaul L. Rev. 1133, 1136-37 & n.31
(1994) (noting that husbands who grow up in violent homes commit three times as many serious domestic assaults as those who do not).

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Early and effective intervention in domestic abuse cases could substantially reduce violence in the home, in the streets, and in future
generations. But how far has our society progressed toward this goal?

II. The Legislature's Response to Domestic Violence: An Overview

Despite the devastating effects of domestic violence, the state has done precious little to alleviate the problem until recently. Indeed, the
European and American legal systems have a long history of complicity in - and even approval of - intimate abuse, particularly when perpetrated
by men against their wives and children. In medieval Europe, wives were legally considered their husbands' chattel and a disobedient woman
risked public chastisement. She might be sentenced to the ducking stool, whipped, or forced to wear an iron muzzle with a padlock and a spike
pinning down her tongue. n31 Husbands were "excused for the injuries they inflicted on their wives.... Provided he neither kills nor maims her, it
is legal for a man to beat his wife when she wrongs him." n32

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n31. See R. Emerson Dobash & Russell Dobash, Violence Against Wives: A Case Against the Patriarchy 59 (1979).

n32. Id. at 60 (quoting Not in God's Image: Women in History 356 (Julia O'Faolain & Laura Martinez eds., 1974)).

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By the advent of the seventeenth and eighteenth centuries, lawmakers began to make feeble efforts to reform these laws. For example, French
communities restricted a husband's legal right to physically discipline his wife to "blows, thumps, kicks or punches on the back if they leave no
lasting traces." n33 This limitation was qualified, however, by the adage: "The man who is not master of his wife is not worthy of being a man."
n34 The nineteenth century witnessed additional Lilliputian steps toward progress. In Britain, one reformer in the House of Commons rose during
debate to insist that "the country should treat its married women no worse than it treats its domestic animals." n35

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n33. Id. at 56 (quoting Nicole Castan, Divers Aspects de la Constrainte Maritale, D'apres les Documents Judiciares du XXIII Siecle, Kath Ryall
trans., (1976) at 6) (emphasis added).

n34. Id. Most cultures have developed similar proverbs. In Russia: "A wife isn't a jug ... she won't crack if you hit her ten times"; in Africa:
"Those whom we marry are those whom we fight"; and in England: "A spaniel, a woman, and a walnut tree, the more they're beaten, the better
they be." Carol Bauer & Lawrence Ritt, "A Husband Is a Beating Animal:" Frances Power Cobbe Confronts the Wife-Abuse Problem in Victorian
England, 6 Int'l. J. Women's Stud. 99, 102 (1983). A pre-revolutionary Chinese proverbs goes, "A wife married is like a pony bought; I'll ride her
and whip her as I like." Lori Heise, International Dimensions of Violence Against Women, 12 Response 3, 3.

n35. Dobash & Dobash, supra note 31, at 68. Henry Fitzroy requested that Parliament provide women with the same protection "as they already
extended to poodle dogs and donkeys, for cruelty to which a person subjected himself, under the Cruelty to Animals Act, to three months
imprisonment, with or without hard labor." Id. at 282 n.145 (quoting 124 Parl. Deb. (3d Sec.) 1414 (1853)). During the same period, John Stuart
Mill protested that even the "vilest malefactor" had "some wretched woman tied to him, against whom he [could] commit any atrocity except
killing her, and, if tolerably cautious, [could] do that without much danger of the legal penalty." John Stuart Mill, The Subjection of Women 35
(1869) (reprinted 1970).

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From the early colonial period onward, American courts followed British common law by affirming the husband's right of domestic chastisement.
In the words of the Mississippi Supreme Court, this rule allowed a husband to "use salutary restraints in every case of a wife's misbehavior,
without being subjected to vexatious prosecutions resulting in the mutual discredit and shame of all parties concerned." n36

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n36. Bradley v. State, 1 Miss. 156, 157 (1824); see also State v. Black, 60 N.C. (Win.) 162,163 (1864) (permitting husband "to use towards his
wife such a degree of force as is necessary to control an unruly temper and make her behave herself; and unless some permanent injury be
inflicted to gratify his own bad passions, the law will not invade the domestic forum, or go behind the curtain."); cf. Robbins v. State, 20 Ala.
36, 39 (1852) (holding that wife's provocation can mitigate husband's fine for assault:

if the husband was at the time ... provoked to this unmanly act by the bad behaviour and misconduct of his wife, he should not be visited with
the same punishment as if he had without provocation wantonly and brutally injured one whom it was his duty to nourish and protect.).

The first law against wife-beating during this period was enacted in Tennessee in 1850, although it is not known whether this statute was
enforced. See Elizabeth Pleck, Criminal Approaches to Family Violence, 1640-1980, 11 Fam. Violence 19, 29, 32 (Michael Onry & Norval Morris
eds., 1989). In some instances, sporadic periods of social awareness concerning domestic violence led to legislative prohibitions in the early
1600s, but no such laws were passed from 1672 to 1850. See id. at 29.

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It was not until the late nineteenth century that states finally began to move away from actually condoning a husband's use of physical force
to discipline his wife. n37 But many still clung to the position that in the absence of "serious" violence, the government should not interfere in
the private, family realm. As late as 1874, the North Carolina Supreme Court stated: "If no permanent injury has been inflicted, nor malice,
cruelty nor dangerous violence shown by the husband, it is better to draw the curtain, shut out the public gaze, and leave the parties to forget
and forgive." n38 This view predominated in most states well into the twentieth century.

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n37. See, e.g., Fulgham v. State, 46 Ala. 143, 146-47 (1871) (stating that privilege to chastise one's wife, "ancient though it be, to beat her
with a stick, to pull her hair, choke her, spit in her face or kick her about the floor, or to inflict upon her like indignities, is not now
acknowledged by our law."); Commonwealth v. McAfee, 108 Mass. 458, 461 (1871) (declaring that "Beating or striking a wife violently ... is not
one of the rights conferred on a husband by the marriage.").

n38. State v. Oliver, 70 N.C. 60, 61-62 (1874); see also State v. Buckley, 2 Del. (2 Harr.) 552, 552 (1838) ("We know of no law that will
authorize a husband to strike his pregnant wife a blow with his fist, such as has been inflicted on this woman.... Any undue or excessive battery
by a husband of his wife either in degree, or with improper means, [is] indictable.") (emphasis added); State v. Hussey, 44 N.C. (Busb.) 123
(1852) (wife's testimony against her husband incompetent in all cases of assault and battery, expect where permanent injury or great bodily
harm is either threatened or inflicted); Richards v. Richards, 1 Grant 389, 392-93 (1856) (denying divorce petition on ground that "it is a sickly
sensibility which holds that a man may not lay hands on his wife, even rudely, if necessary, to prevent the commission of some unlawful or
criminal purpose," a man may be "betrayed" "into the commission of an act, or a harsh expression, for which, in a moment after, he might be
repentant and sorrowful.").

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But by the late 1960s and early 1970s, the domestic violence movement came into full swing and prompted substantial improvements in
statutory law. Over the past generation, the United States has moved from an era when no term for intimate abuse existed in the national
lexicon to one of substantial public awareness of the problem, a growing perception that it is unacceptable, and increasing political will to
intervene. Every state has enacted a civil protection order statute, and the vast majority of these authorize the essential relief necessary for
battered women to leave an abusive relationship. n39 For example, every state provides for emergency ex parte relief, n40 so that a victim has
court-ordered protection during the potentially volatile period between the time of filing a lawsuit and trial. This is the period when the abusive
partner typically is served with court papers spelling out the victim's intent to leave him - a moment that can set off a particularly severe
"separation assault." n41

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n39. For an in-depth analysis of state civil protection order statutes, see Catherine F. Klein & Leslye E. Orloff, Providing Legal Protection for
Battered Women: An Analysis of State Statutes and Case Law, 21 Hofstra L. Rev. 801 (1993); see also Developments in the Law: Legal
Responses to Domestic Violence, 106 Harv. L. Rev. 1498, 1515-18, 1535-43 (1993).

n40. See Klein & Orloff, supra note 39, at 1031-43 (indicating that all jurisdictions authorize some form of emergency ex parte relief upon filing a
complaint for civil protection).

n41. See Martha R. Mahoney, Legal Images of Battered Women: Redefining the Issue of Separation, 90 Mich. L. Rev. 1, 65-71 (1991); see also
Joan Zorza, Recognizing and Protecting the Privacy and Confidentiality Needs of Battered Women, 29 Fam. L.Q. 273, 274 & 274 n.12-13 (1995)
(stating that domestic violence escalates when victim leaves or abuser believes she is going to leave).

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Modern laws governing civil protection orders also authorize fairly comprehensive post-trial relief. In addition to the basic provisions - to not
assault and to stay away - these orders may award temporary child custody, safe visitation arrangements for the non-custodial parent, and
child support. n42 Rapid resolution of these latter issues is critical. One of the primary reasons that victims return to their abusive partners is
the pressure created by the loss of economic support; n43 for a woman with children, a child support award may be the key to freedom.
Similarly, because the potential for renewed violence is greatest during visitation, carefully structured pick up and drop off provisions, designed
to eliminate victim-perpetrator contact, also can have a significant prophylactic effect. n44

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n42. The vast majority of jurisdictions authorize the court to award temporary custody. See Klein & Orloff, supra note 39, at 954 n.968 (citing
statutes from 42 states, the District of Columbia, and Puerto Rico); see also N.Y. Family Court Act 842(i) (McKinney 1998); Va. Code Ann.
16.1-279.1(A)(7) (1998). The same is true for visitation. See Klein & Orloff, supra note 39, at 982 n.1141 (citing statutes from 37 states and
the District of Columbia); see also Alaska Stat. 18.66.100(C)(9) (Michie 1998); Va. Code Ann. 16.1-279.1(A)(7) (1998). Thirty-eight states and
the District of Columbia expressly authorize the award of child support in a civil protection order case. See Klein & Orloff, supra note 39, at 998
n.1254 (citing statutes from 36 states and the District of Columbia); see also N.Y. Fam. Court Act 842 (McKinney 1998); Vt. Stat. Ann. tit. 15
1103(c)(6) (1997).

n43. See Anne L. Ganley, Domestic Violence: The What, Why and Who, as Relevant to Civil Court Cases, in Domestic Violence in Civil Court
Cases: A National Model for Judicial Education 19, 44 (Jacqueline Agtuca et al. eds., 1992); Cris M. Sullivan, et al., After the Crisis: A Needs
Assessment of Women Leaving a Domestic Violence Shelter, 7 Violence & Victims 267, 267 (1992); Martha F. Davis & Susan J. Kraham,
Protecting Women's Welfare in the Face of Violence, 22 Fordham Urb. L.J. 1141, 1155 (1995).

n44. See Peter Finn & Sarah Colson, U.S. Dep't of Justice, Civil Protection Orders: Legislation, Current Court Practice and Enforcement 43-44
(1990). State gender bias task force reports have revealed that poorly structured visitation provisions are the source of a substantial portion of
contempt motions brought to enforce civil protection orders. See, e.g., District of Columbia Courts, Final Report of the Task Force on Racial and
Ethnic Bias and Task Force on Gender Bias in the Courts, App. H at 21 (1992) [hereinafter D.C. Gender Bias Task Force Report] (indicating that
such provisions accounted for 31% of contempt motions in civil protection order cases involving custody).

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Finally, thirty-four states have adopted criminal contempt laws to help enforce protection orders, n45 and forty-five jurisdictions have made
violating a protection order a statutory crime. n46 Effective enforcement is essential to ensure meaningful compliance; otherwise, civil
protection orders become a piece of paper that a batterer can (and often does) ignore with impunity. As one study of the civil protection order
process concluded, "enforcement is the Achilles' heel of the ... process, because an order without enforcement at best offers scant protection
and at worst increases the victim's danger by creating a false sense of security." n47

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n45. The following jurisdictions enforce civil protection orders through criminal contempt sanctions: Ala. Code 30-5A-6 (1998); Alaska Stat.
9.50.010(5) (Michie 1997); Ariz. Rev. Stat. Ann. 13-3602(J) (West 1998); Colo. Rev. Stat. 18-6-803.5(7) (1998); Del. Code Ann. tit. 11, 1271
(1997); D.C. Code Ann. 16-1005 (1997); Fla. Stat. Ann. 741.30(8)(a) (West 1998); Ga. Code Ann. 19-13-6 (1997); Haw. Rev. Stat.
710-1077(1)(g) (1997); 750 Ill. Comp. Stat. 60/223-2(b) (West 1998); Iowa Code 236.8 (1998); Kan. Stat. Ann. 60-3110 (1996); Ky. Rev.
Stat. Ann. 403.760(1) (Banks-Baldwin 1998); La. Rev. Stat. Ann. 46:2137 (West 1998); Md. Code Ann., Family Law 4-508 (1997); Mich. Comp.
Laws 600.2950(23) (1998); Minn. Stat. 518B.01(14)(f)-(g) (1997); Miss. Code Ann. 93-21-21 (1998); N.H. Rev. Stat. Ann. 173-B:8(II) (1997);
N.J. Stat. Ann. 2C:29-9 (West 1998); N.M. Stat. Ann. 40-13-5(B) (Michie 1996); N.Y. Penal Law 215.51(b) (McKinney 1998); N.C. Gen. Stat.
50B-4(b) (1997); N.D. Cent. Code 14-07.1-06 (1997); Ohio Rev. Code Ann. 2705.02(A) (Anderson 1998); Or. Rev. Stat. 107.720(4) (1997); Pa.
Stat. Ann. tit. 23, 6114 (West 1998); R.I. Gen. Laws 15-15-3(c)-(d) (1997); S.C. Code Ann. 20-4-60(b) (Law Co-op. 1997); Tenn. Code Ann.
36-3-610 (1997); Vt. Stat. Ann. tit. 15, 1108(e) (1997); Wash. Rev. Code 26.50.110(5) (1997) (penalty for third conviction); Connecticut v.
Murray, 623 A.2d 60 (1993).

n46. See Klein & Orloff, supra note 39, at 1096 n.1835 (citing statutes in 40 states and Puerto Rico); see also D.C. Code Ann. 16-1005(g)
(1997); Iowa Code 236.8 (1998); S.D. Codified Laws 25-10-13 (Michie 1997).

n47. Finn & Colson, supra note 44, at 49.

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The federal government has acted as well. In 1994, Congress enacted the Violence Against Women Act (VAWA), n48 and "daughter of VAWA"
has just been introduced in Congress. n49 Among other things, these laws condition state receipt of sizable federal funding on the creation of
systems that: (1) ensure that protection orders are given full faith and credit by all sister states; n50 (2) provide government assistance with
service of process in protection order cases; n51 and (3) criminalize violations of protection orders. n52

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n48. Violence Against Women Act, Pub. L. No. 103-322, 108 Stat. 1902 (1994) (codified as amended in U.S.C. sections 8, 16, 18, 28, 42).

n49. See H.R. 3514, 105th Cong. (1998); S. 2110, 105th Cong. (1998). See Sean Scully, Scandals May Ease Renewal of Women's Act, Wash.
Times, Mar. 20, 1998, at A9; Carl Weiser, Biden Introduces Bill to Extend Protection for Battered Women, Gannett News Service, May 21, 1998,
available in 1998 WL 5627720.

n50. See Violence Against Women Act, 18 U.S.C. 2265 (1996).

n51. See Violence Against Women Act, 42 U.S.C. 3796hh(c)(4)(1998). Domestic violence victims cite failure to accomplish service of process as
one of the primary reasons for their failure to follow through on a civil protection order case. See Urban Institute, Court Processing and the
Effects of Restraining Orders for Domestic Violence Victims 30-32 (1993).

n52. See Violence Against Women Act, 42 U.S.C. 3796hh(c)(1). In order to be eligible for certain VAWA grants, state and local governments
must certify that their laws or official policies "encourage or mandate arrest of domestic violence offenders who violate the terms of a valid and
outstanding protection order." Id.

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Although the specifics of protection order legislation vary from state to state and gaps in coverage for battered women certainly remain,
legislation is no longer an obstacle, but a source of hope. Enormous legal strides have been made in a relatively short period of time.

In contrast to this remarkable legislative progress, those responsible for applying and enforcing the law - the executive and judicial branches of
government - have lagged far behind. Only during the last five to ten years have police begun to put effort into achieving timely responses and
reasonable arrest rates; in most jurisdictions this occurred only after a legislative mandate. It is even more recently that a small (but growing)
number of District Attorneys' offices around the country have begun to experiment with specially tailored strategies to prosecute domestic
violence. And the judiciary has shown even less progress; only a handful of jurisdictions have any substantial reform efforts underway. A law is
only as good as the system designed to deliver on its promises, and the failure of the courts and related institutions to keep up with legislative
progress has had a serious detrimental impact on efforts to combat domestic violence.

What would an improved system for dealing with domestic violence cases look like? Reform must occur in each of three components of the
justice system. First, police and prosecutors must continue to improve their historically inadequate practices and to develop specially tailored
responses to domestic violence crimes - while paying special attention to questions of individual victim needs and desires. Second, the court
system itself must adopt new practices that promote coordination and information-sharing in multiple cases involving the same family. Finally,
the judiciary must purge its deep-rooted hostility toward domestic violence victims and adopt an approach that promotes procedural justice for
all parties.

III. Improving the Criminal Justice System's Long Record of Failure in Response to Domestic Abuse

Since the early 1970s, battered women's advocates have called upon police and prosecutors to treat domestic violence "like any other crime."
This plea was voiced in response to a long-standing failure by these officials to recognize a criminal dimension to family abuse. A growing
number of jurisdictions have heeded this call, and arrest and prosecution rates are beginning to increase. But these improvements themselves
have highlighted additional difficulties that must be remedied.

A. Historical Overview of the Criminal Justice Response

Until recently, police officers frequently ignored domestic violence calls or delayed their response by several hours. n53 When they did respond,
they were trained to mediate rather than to arrest. In the words of one police training bulletin:

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n53. See Straus, supra note 9, at 232; Martin, supra note 9, at 92.

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The police role in a [domestic] dispute situation [is] more often that of a mediator and peacemaker than enforcer of the law.... Normally,
officers should adhere to the policy that arrests shall be avoided.... but when one of the parties demands arrest, you should attempt to explain
the ramifications of such action (e.g., loss of wages, bail procedures, court appearances) and encourage the parties to reason with each other.
n54

The experience of the District of Columbia is typical. A study conducted in 1990 showed that police were arresting accused batterers in only
five percent of all domestic violence cases. n55 They failed to arrest in more than eighty-five percent of cases in which the victim had
sustained serious injuries that were visible when the police arrived on the scene. n56 Police were more likely to arrest the perpetrator in
situations where he insulted an officer or damaged a vehicle. n57

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n54. See Oakland, California, Police Department, Training Bulletin on Techniques of Dispute Intervention (1975) quoted in Martin, supra note 9,
at 93-94.

n55. See Sandra Jean Sands et al., Police Response to Domestic Violence 9 n. 15 (June 1990) (presented at Institute for Women's Policy
Research Second Annual Women's Policy Conference) (unpublished manuscript, on file with author).

n56. See id. at 5.

n57. See id. at 5-7.

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Activists have used studies like this one to convince state legislatures to enact mandatory arrest laws. n58 These statutes terminate police
discretion in domestic violence cases; if probable cause exists, the officer must arrest. Looking again at Washington, D.C., soon after the local
mandatory arrest law went into effect, police were arresting perpetrators in forty-one percent of domestic violence calls. n59 This jump, from
five to forty-one percent, reflects a sea change for victims of family abuse. Those who seek access to justice are far more likely to succeed
with the advent of mandatory arrest. n60

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n58. For example, the District of Columbia enacted its mandatory arrest law in 1991. See D.C. Code Ann. 16-1031 (1991).

n59. See National Center for State Courts, Civil Protection Orders: The Benefits and Limitations for Victims of Domestic Violence 80 (Susan L.
Keilitz et al. eds., 1997) [hereinafter NCSC Civil Protection Order Study] (study of women who received civil protection orders in Wilmington,
Delaware, Denver, Colorado, and the District of Columbia). This study focused exclusively on police response vis-a-vis male perpetrators.
However, this study does not reflect the problematic increase in dual arrests - police arrest of both victim and batterer - that activists have
noted across the country. See, e.g., Welch, supra note 30, at 1159. A recent General Order issued by the D.C. Metropolitan Police Department
attempts to eradicate this practice by directing officers to distinguish between the primary aggressor, who must be arrested, and a person who
may have inflicted injury on another, but who did so in self-defense. See D.C. Metro. Police Dep't., General Order 304.11, Intrafamily Offenses
10-12 (Jan. 12, 1998). No data yet exist, however, from which to determine whether the General Order has resulted in a decrease in dual
arrests.

n60. The issue of victims who do not want their abusers arrested or prosecuted is discussed infra text accompanying notes 73-83.

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But mandatory arrest alone is not sufficient to ensure that the criminal aspects of domestic violence cases are taken seriously. Even when
presented with more domestic violence arrests, prosecutors rarely pressed charges and, when they did, they rarely followed through with the
case. In Washington, D.C., for example, the 1995 charging rate was approximately fifteen percent of arrest cases, and very few of these ever
proceeded to plea or trial. n61 Why such low numbers? The prosecutor, like district attorneys across the country, had adopted a special
intimate abuse policy: Charges would be dropped at the victim's request, at any time, no questions asked. The rationale was the belief that
convictions could not be obtained without victim cooperation and testimony. Although some prosecutors recognized that batterers might be
pressuring victims into making the request to drop charges, they claimed that they could not distinguish between a battered woman who was
communicating her true feelings and one who had a literal or figurative gun to her head. n62 So they adopted a uniform approach and dropped
charges in every case.

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n61. See, e.g., Sam Skolnik, Confronting Domestic Violence: D.C.'s Once Shoddy Record Much Improved, Legal Times, Aug. 18, 1997, at 14
(citing 10-30% charging rate).

n62. In the District of Columbia, for example, one prosecutor spent every day for six months interviewing victims of intimate abuse who sought
to drop charges. Interview with Robert Spagnoletti, Chief, U.S. Attorney's Office Domestic Violence Unit, in Washington, D.C. (Sept. 3, 1997).
He found that he was unable to distinguish between those who were responding to a direct threat and those who were not. Id. When he
refused to honor victims' requests to drop a case, many of them called him later to explain that they had been threatened into making the
request against their will and to thank him for pursuing the prosecution. Id.

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This "automatic drop" policy ceded to perpetrators an enormous degree of control over the criminal justice process. All a batterer had to do was
coerce his victim - through violence or threats of violence - into asking the prosecutor to drop the charges; once she did so, the risk of
incarceration instantly vanished.

During the 1980s and 90s, victim advocates lobbied aggressively to change these policies, and they have finally begun make inroads in a
growing number of jurisdictions. For example, still citing the difficulty in distinguishing between those who "really" want to drop charges and
those who do not, many prosecutors have adopted "no-drop" policies - once charges are brought, a case proceeds regardless of the victim's
wishes, as long as sufficient evidence exists to prove criminal conduct. n63

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n63. In a recent survey, 66% of prosecutor's offices in major urban centers reported that they had adopted no-drop policies. Donald J.
Rebovich, Prosecution Response to Domestic Violence: Results of a Survey of Large Jurisdictions, in Do Arrests and Restraining Orders Work?
176, 182-183 (Eve S. Buzawa & Carl G. Buzawa eds., 1996).

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Early data indicate that these no-drop policies yield substantial positive results, including the reduction of homicides. In San Diego, for example,
officials found that under the old policy, when abusers learned that a case would be dismissed if the victim refused to cooperate, levels of
violence increased. n64 In 1985, the city implemented a no-drop policy. Domestic homicides fell from thirty in 1985, to twenty in 1990, to seven
in 1994. n65 No-drop policies also appear to lower recidivism and strengthen the message that intimate abuse will not be tolerated. n66

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n64. See Casey G. Gwinn & Anne O'Dell, Stopping the Violence: The Role of the Police Officer and the Prosecutor, 20 W. St. U. L. Rev. 297, 310
(1993).

n65. See Mark Hansen, New Strategy in Battering Cases, A.B.A. J. 14 (Aug. 1995).

n66. See Hanna, supra note 10, at 1864-65.

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After years of community pressure in the District of Columbia, the U.S. Attorney's Office finally adopted an aggressive approach to prosecution,
including a no-drop policy. n67 Prosecutors assigned to the newly-created Domestic Violence Unit view intimate violence as a crime against the
state and seek to vindicate the government's interests regardless of the individual victim's wishes. Perpetrators no longer are able to manipulate
the system by coercing the victim into dropping the charges; control has been shifted from the perpetrator to the government.

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n67. The Office also adopted a vertical prosecution policy, where a single prosecutor is assigned to a case from beginning to end. Most other
misdemeanors are prosecuted "horizontally," with a different prosecutor handling each stage of the litigation. Vertical prosecution encourages
the development of a continuing relationship between attorney and complaining witness that can contribute to better victim follow-through.

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As in San Diego, Washington, D.C.'s no drop-policy has effected a radical shift in domestic violence prosecutions. In 1989, the office prosecuted
fewer than forty misdemeanor cases out of 19,000 family abuse calls to 911. n68 From 1996-97, during the first year of the new regime, the
Domestic Violence Unit filed approximately 6,000 misdemeanor cases. n69 The statistics for the following year are closer to 8,000. n70 An even
more telling statistic is that the Unit now presses charges in approximately sixty-seven percent of arrest cases - precisely the same rate as in
stranger violence arrests. n71 Similarly, the conviction rate in domestic violence cases now closely approximates that in other misdemeanor
non-jury trials in the District of Columbia - sixty-nine percent. n72

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n68. In 1989, the D.C. Metropolitan Police Department completed written reports in 42 of 19,000 domestic violence calls. See Sands et al.,
supra note 55, at 300. No prosecutions occur in the absence of such a report. Interview with Robert Spagnoletti, Chief, U.S. Attorney's Office
Domestic Violence Unit in Washington, D.C. (Apr. 8, 1999).

n69. See Interview with Robert Spagnoletti, supra note 62. This statistic is derived from the fact that the Domestic Violence Unit prosecuted
approximately 6,400 cases over the 13-month period from Apr. 1, 1996 to Apr. 30, 1997; the number given is the 12-month average.

n70. See id.

n71. See, e.g., Skolnik, supra note 61, at 14.

n72. See Letter from Duane B. Delaney, Clerk of the Court, to Andrew P. McGuire, Esq. 2 (June 23, 1997) (on file with author); Interview with
Robert Spagnoletti, supra note 62. Prior to institution of the new domestic violence court, prosecutors estimate that the conviction rate in
domestic violence trials was 20%, less than a third of the current rate. See Skolnik, supra note 61, at 14.

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Mandatory arrest laws and no-drop prosecution policies have moved domestic violence criminal prosecutions to a position of rough parity with
crimes perpetrated by non-intimates, and have greatly expanded the tools available to battered women seeking to escape abuse. The concept
of treating family abuse "like any other crime" is finally within reach. But is this kind of equality really what is best for battered women?

B. Concerns Raised by Recent Criminal Justice Reforms and Modest Proposals for Improvement

Battered women are far better off today, with police and prosecutors who pay attention to crimes between intimates, than they were ten years
ago when such crimes were routinely ignored. But as police and prosecutors escalate their response to domestic violence cases, survivors
increasingly confront a criminal justice system that can perpetuate the kinds of power and control dynamics that exist in the battering
relationship itself. In many cases, prosecutors take complete control over the case, functioning as the sole decision-maker and ignoring the
victim's voice. If a victim changes her mind mid-way through the litigation and seeks to drop charges so that the father of her children can
continue to work and provide financial support, a prosecutor may refuse to do so, on the ground that this would not serve the interests of the
state in punishing violations of the social contract. n73 Such re-victimization can thwart the survivor's efforts to regain control over her life and
move past the abusive experience.

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n73. A prosecutor dealing with a reluctant victim in a domestic violence case faces a difficult dilemma. Does a dismissal of an individual case
based on the victim's wishes occur at the expense of the public good of punishing criminal conduct and deterring future violence? Does a failure
to honor a victim's wishes result in a re-victimization by subjecting her to further coercion at the hands of the state? For an excellent
discussion of these issues within a feminist theory framework, see Hanna, supra note 10, at 1888-98.

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Thus, where the bulk of control was ceded to the perpetrator under the old automatic drop system, it is now ceded to the prosecutor. Although
battered women have a far greater influence over the criminal justice process today than ever before, the system's responsiveness to their
individual needs remains limited.

Increased intervention by the criminal justice system has been particularly problematic for many subgroups of victims, in particular immigrant
populations n74 and racial minorities. n75 For example, recent reforms in U.S. immigration laws create strong disincentives for immigrant women
to press criminal charges against their batterers. The new laws dictate that an immigrant convicted of a domestic violence offense, stalking, or
a protection order violation becomes deportable, even if he has previously obtained lawful permanent resident status. n76 Many women are
reluctant to expose their partners to the risk of deportation. In addition, they may be ostracized from their communities for doing so, particularly
if the perpetrator might be subjected to political persecution if forced to return to his home country. Deportation of a batterer also may
adversely affect the victim's own petition for legal residency. n77

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n74. See generally Tien-Li Loke, Trapped in Domestic Violence: The Impact of U.S. Immigration Laws on Battered Immigrant Women, 6 B.U. Pub.
Int. L.J. 589 (1997).

n75. See, e.g., Institute on Violence, Inc., Violence in the Lives of African American Women: A Focus Group Study (Beth E. Richie ed., 1996) at
18-19 [hereinafter Violence in the Lives of African American Women].

n76. See Illegal Immigration Reform and Immigrant Responsibility Act, Pub. L. No. 104-208 350 (1996) (amending 8 U.S.C. 1251(a)(2)).

n77. See Tien-Li Loke, supra note 74, at 616. Although the Violence Against Women Act has reduced the scope of this problem, it has not been
entirely eliminated. See id.

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Similarly, African-American women often choose to remain silent about abuse. Kimberle Crenshaw, whose writing explores the "intersectionality"
of experiences of racism and sexism on battered women of color, argues:

Women of color are often reluctant to call the police, a hesitancy likely due to a general unwillingness among people of color to subject their
private lives to the scrutiny and control of a police force that is frequently hostile. There is also a more generalized community ethic against
public intervention, the product of a desire to create a private world free from the diverse assaults on the public lives of racially subordinated
people. The home is not simply a man's castle in the patriarchal sense, but may also function as a safe haven from the indignities of life in a
racist society. n78

In an extensive focus-group study in New York, African-American participants expressed the view that reporting batterers to the police was a
breach of loyalty. n79 Reporting could further contribute to the social stereotyping of black men as particularly violent. n80 In one woman's
words: "The ideas behind ... how Black boys are feared by White people, and how police beat Black men ... it's a bad time to be Black and it's
an even worse time to talk about the problems we face in our community." n81

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n78. Kimberle Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color, 43 Stan. L. Rev. 1241,
1257 (1991).

n79. See Violence in the Lives of African American Women, supra note 75 at 18-19. See also Beth Richie, Battered Black Women: A Challenge
for the Black Community, The Black Scholar, Mar.-Apr. 1985, at 40, 43-44.

n80. See Violence in the Lives of African American Women, supra note 75, at 18-19.

n81. Id. at 19.

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Another set of concerns arises when the problem is viewed from a traditional feminist perspective, focusing on the particular experience of
individual women. A no-drop policy may, in some cases, trigger a physical attack. Although dropping charges in response to a batterer's threat
allows him to retain control, forcible prosecution can result in a deadly retaliation assault.

One approach which may partially alleviate this risk is to give survivors the option of not participating in the prosecution, in the hope that the
perpetrator will be less likely to blame her for what occurs. To do this, the prosecuting attorney must rely on evidence other than victim
testimony, such as recorded 911 calls containing excited utterances, photographs and hospital records that document injuries, and testimony
from police officers who responded to the crime scene. This strategy can be quite successful. In Washington, D.C., for example, the U.S.
Attorney's Office introduces such evidence in every domestic violence case in which it is available, and relies on it exclusively half of the time,
in those cases where the victim declines to testify for the state. n82 The conviction rate in both types of cases is identical. n83

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n82. The prosecutor's office does not always respect the victim's desire to refrain from testifying; in a small number of cases, the victim is
subpoenaed and forced to testify against her will. For an interesting discussion of this practice and its implications for feminist theory, see
Hanna, supra note 10, at 1865-66, 1888-94.

n83. Interview with Robert Spagnoletti, supra note 62. One might expect a higher success rate in cases where a victim actually tells the judge
her story. But there is a persistent and pervasive societal view, documented by Carol Gilligan and others, that women's stories generally lack
credibility. The result is a deep undermining of the persuasive impact of a victim's testimony. See Carol Gilligan, Getting Civilized, 63 Fordham L.
Rev. 17 (1994); Kim L. Scheppele, Just The Facts, Ma'am: Sexualized Violence, Evidentiary Habits, and the Revision of Truth, 37 N.Y.L. Sch. L.
Rev. 123, 126-27 (1992).

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Of course, in some cases, this approach only deflects a batterer's anger; it is a far from perfect strategy for protection from retaliatory abuse.
It also exacerbates another feminist concern with the no-drop approach: the overriding of the individual victim's autonomy. After all, despite the
long-time activist demands that domestic violence crimes be treated the same as those committed by strangers, these cases can be different
from the victim's perspective. Although a person assaulted during a holdup on the street may have an interest in the precise punishment meted
out to the perpetrator, it cannot compare to that of many victims of intimate abuse, whose partners may be sent to jail, families broken up, and
sole sources of child support lost. Of course, not every domestic violence victim is financially dependent on the perpetrator or interested in
keeping the family together; and some victims of non-intimate assault have a connection to the accused. These cases exist on a spectrum;
perhaps the degree of input into the decision of whether to prosecute and how to punish accorded to a victim should be different - and greater
- in those cases where she has a connection - financial, familial, or emotional, to the perpetrator.

So the question remains: How can prosecutors find a satisfactory way to enhance deterrence of intimate abuse and, simultaneously, adequately
protect the safety and autonomy of individual victims? A growing body of research indicates that civil society has an important role to play
here. n84

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n84. See, e.g., National Research Council, Understanding Violence Against Women (N.A. Crowell & A.W. Burgess eds., 1996); Denise J. Gamache
et al., Coordinated Police, Judicial and Social Service Response to Woman Battering: A Multi-Baseline Evaluation Across Three Communities, in
Coping With Family Violence: Research and Policy Perspectives 193-209 (G.T. Hotaling, et al. eds., 1988), Cris M. Sullivan, Societal Collusion and
Culpability in Intimate Male Violence: The Impact of Community Response Toward Women With Abusive Partners, in Violence Between Intimate
Partners: Patterns, Causes, and Effects (Albert P. Cardarelli ed., 1997) 154-64.

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A recent study in East Lansing, Michigan, n85 for example, compared two groups of battered women leaving a domestic violence shelter. One
was a control group; in the other, each woman was assigned a college student volunteer who served as her advocate for six hours a week,
over ten weeks. n86 The advocates had no prior experience working in the domestic violence field, but received ten weeks of training before
embarking on the project. n87 Each student worked with a woman to help her assess her personal needs and goals, and then assisted her in
obtaining limited or difficult-to-access community resources. n88 These resources included housing, employment, legal assistance,
transportation, child care, health care, counseling for the children, and social support. n89

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n85. See Cris M. Sullivan et al., Promising Findings of a Community-Based Advocacy Project for Women with Abusive Partners: Two-Year
Followup, J. Consulting and Clinical Psychology (forthcoming 1999) (on file with author).

n86. See id. at 7-8.

n87. See id. at 27.

n88. See id.

n89. See id. at 10.

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Both groups of women were interviewed every six months for two years. n90 Women in the advocacy group reported less physical violence - in
fact, over twice as many women in the advocacy group experienced no violence whatsoever during the two-year period. n91 They also
experienced less depression and a higher quality of life. And those in the advocacy group who wished to end their abusive relationships were
more effective in doing so. n92 Of particular importance is the fact that women with advocates perceived themselves as significantly more
effective in obtaining community resources and assistance, as well as interpersonal social support. n93

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n90. See id. at 7.

n91. See id. at 26-27.

n92. See id. at 19.

n93. See id. at 21. All of these differences were found to be statistically significant. See id.

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Similar results came from a study of the role of social support from family, friends, neighbors, and coworkers in determining victim follow through
in domestic violence criminal prosecutions. n94 Where "follow through" was defined as cooperating in the prosecution of a batterer (after the
initial decision to press charges) by providing necessary information to prosecutors and expressing a willingness to testify, n95 survivors able to
access more interpersonal support were approximately twice as likely to voluntarily cooperate with the prosecution. n96

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n94. See generally, Lisa A. Goodman et al., Obstacles Women Face in Prosecuting Their Batterers: The Role of Social Support, Violence &
Victims (forthcoming 1998) (on file with author).

n95. See id. at 1.

n96. See id. at 20.

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These results are quite exciting. They indicate that in many cases, an increase in victim support from family, friends, and trained personnel can
be enough to empower victims to exit the cycle of violence. Advocacy services apparently reduce some victims' dependency on the criminal
justice system by helping them find the strength to escape on their own. And for those who need prosecutorial intervention, the presence of an
advocate or supporter enables them to better assert themselves in gaining the help they need. By amplifying victims' voices, advocates can
help the government better respond to individual concerns. Advocates also help the government to better discern those cases in which the
survivor seeks to drop charges because of a considered decision that the course of action is best for herself, her family, and the larger
community to which she belongs. Certainly, domestic violence is a crime against the state and generally should be treated as such; but victim
advocates could be a key to transforming one-size-fits-all prosecution policies into responses that are also tailored to the concerns of individual
women.

Another way that law advocates can enhance victim participation in and impact on the process is through the development of victim impact
statements. These statements, which can be written or oral, are submitted to the court at sentencing. They tell the story of the effect of the
perpetrator's actions on the victim's life and detail her wishes regarding appropriate punishment. When developed with care, these compelling
stories can have substantial impact on the ultimate punishment imposed on the batterer. n97

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n97. Interview with Charlotte Clarke, Coordinator, District of Columbia United States Attorney's Office Domestic Violence Advocacy Program,
Victim Witness Assistance Unit, Washington, D.C. (Sept. 21, 1998).

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Currently, the majority of domestic violence service providers nationwide report that victim demand for advocates far exceeds their availability.
n98 And only a few jurisdictions permit victim advocate offices inside the courthouse, so that women must seek them elsewhere - a hurdle that
many trauma victims are unable to surmount. Recent prosecutorial responsiveness to domestic violence cases must be accompanied by an
equivalent increase in the provision of easily accessible victim advocacy services.

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n98. See Kit Kinports & Karla Fischer, Orders of Protection in Domestic Violence Cases: An Empirical Assessment of the Impact of the Reform
Statutes, 2 Tex. J. Women & L. 163, 173 (1993).

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IV.Integrated Domestic Violence Courts: Remedying Failures in Information-Sharing and Coordination

The piecemeal nature of the traditional court system presents further obstacles for battered women seeking justice. Domestic violence incidents
typically trigger multiple civil and criminal cases, each with distinct and complicated intake processes that occur in different parts of a
courthouse, or even in different court buildings located miles apart. This fragmented process hopelessly confuses most victims, and few manage
to file for all the forms of complementary relief they need. Those who succeed are then faced with a different judge on each case, each of
whom proceeds in an informational vacuum, with no awareness of related cases. A typical family can find itself coping with multiple, conflicting
orders that simultaneously govern its existence.

The convoluted story of Karen and Robert Graves' interactions with the Jefferson County, Kentucky justice system over the course of a year
graphically depicts ways in which the traditional court system's failures in information sharing and coordination contribute to the tragedy of
domestic abuse. From February 1995 to March 1996, Karen and Richard attended sixteen hearings in the local criminal and family courts. n99
The criminal cases were heard by ten different judges, each unaware of the others' cases and rulings. Each of the six warrants issued for
Richard's arrest during that period were set aside - often by another judge. n100 Two different police departments responded to twenty-two
calls for help from Karen's and Richard's residences that year; no responding officer was aware of any previous calls when he arrived at the
scene. n101

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n99. See Jefferson County, Office for Women Mortality Review Committee, Case of Karen Graves: Report to Country Judge/Executive David L.
Armstrong and Domestic Violence Prevention Coordination Council 11 (1996) [hereinafter Case of Karen Graves].

n100. See id.

n101. See id. at 12. A multi-city study of spousal homicide found that in 85% of the cases, the police had intervened on at least one occasion
in the preceding two years; in 54% of the cases, they had intervened on five or more occasions. See Lawrence W. Sherman & Richard A. Berk,
The Specific Deterrent Effects of Arrest for Domestic Assault, 49 Am. Soc. Rev. 261, 263 (1984) (citing 1976 Police Foundation study of
domestic violence in Detroit and Kansas City).

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Both Karen and Richard filed Domestic Violence Petitions against each other, seeking protection from physical abuse. Karen's Petition alleged
that Richard had pulled the phone cord out of the wall when she attempted to call 911 and that he had recently threatened to kill her if she left
him. She described Richard's past abuse, which included hitting Karen in the back with their son's car seat so hard that she had trouble walking;
"stomping" on her ear; and striking her when she refused to have sex. Karen also filed for divorce, custody, and child support. n102 These family
law cases were heard by three different judicial officers and involved eight separate hearings. n103

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n102. See Case of Karen Graves, supra note 99, at Summary of System Contacts, 2-4.

n103. See id. at Summary of System Contacts, 4-18.

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Richard Graves was enrolled in three separate court-ordered counseling programs during this year, two for alcohol and drug abuse. A
sixteen-session anger management program reported his "successful" completion. n104 Advocates from the Center for Women and Families,
Adult Protective Services, Child Protective Services, and the County Attorney's Office all worked on aspects of the couple's lives, but there is
no evidence of any communication among the agencies. n105

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n104. See id. at Summary of System Contacts, 16.

n105. See Case of Karen Graves, supra note 99, at 12.

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The violence in the Graves' relationship escalated rapidly during this period. In May 1995, Richard fired a nine-millimeter handgun into the ground
near Karen's new boyfriend, who was accompanying her as she came to the marital home to pick up her personal belongings. n106 Over the
next several weeks, Richard made repeated death threats. n107 In September 1995, Karen submitted a letter to the court in which she pleaded:

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n106. See id.

n107. See id. at Summary of System Contacts, 10-17.

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I beg this court and all other courts involved to please put this case to rest.... I beg the courts to make Richard follow your orders, and when
he doesn't, give consequences for his actions. I beg the courts to read the entire file from beginning to end before making a decision. I beg the
courts to protect me, and my children. n108

Six months later, in March 1996, Richard took a shotgun to Karen's home, murdered her, and then committed suicide. n109

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n108. Id. at 11 (quoting letter from Karen Graves, dated Sept. 19, 1995).

n109. See id. at Summary of System Contacts, 18.

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A. How the Traditional Court System Has Failed Domestic Violence Victims

The conventional court system's response to domestic violence cases can be woefully ineffective. The problem is attributable, at least in part,
to fundamental failures of information-sharing and coordination within and among each of the agencies involved, from the point of intake to the
time of trial.

1. Failure to Coordinate the Intake Process

The fragmentation of the traditional court intake process prevents many battered women from discovering the multiple and complementary
options available to them. This information barrier deprives victims of the comprehensive protection they need and the relief to which they are
legally entitled.

Although these failures in coordination may have a detrimental impact on all kinds of cases, they are particularly harmful in the family abuse
arena, where a single incident of domestic violence frequently spawns numerous, diverse cases. Most other human interactions that wind up in
court are resolved in a single litigation, so the procedure is relatively straightforward. For example, a contest over a decedent's will leads to a
probate case; a physician's dubious decision to operate leads to a medical malpractice suit; an assault by a stranger is likely to lead to a
criminal case and perhaps, if the perpetrator is a deep pocket, to a civil tort suit.

But a victim who wishes to safely end the relationship has no simple way to proceed. Besides wanting to prosecute criminally, she probably
needs a civil protection order. If she is married to the abuser, she must file for divorce; married or not, if they have children in common she
needs a determination of custody, child support, and possibly protection for her children from the perpetrator's abuse. It is impossible to resolve
all of the issues involved in one law suit; in each case the judge is authorized to award quite different forms of relief.

A criminal prosecution culminating in a conviction sends a powerful message - to the individual batterer and to the larger community - that the
civil justice system cannot replicate. n110 And in cases where the violence is severe and the perpetrator persistent, incarceration may be the
best-or only-way to ensure the victim's safety. n111

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n110. See Hanna, supra note 10, at 1889-90. Criminal enforcement encourages the "educational function of law - to teach members of society
that certain behavior is morally wrong or socially intolerable." Natalie Loder Clark, Crime Begins at Home: Let's Stop Punishing Victims and
Perpetuating Violence, 28 Wm. & Mary L.Rev. 263, 277 (1987).

Although civil protection orders have their own deterrent effect, they appear to be less effective than criminal sanctions. A recent
multi-jurisdiction civil protection order study showed that 8.4% of victims experienced at least one incident of physical abuse within the first six
months of the order's duration, and 12.6% experienced at least one incident of psychological abuse. See NCSC Civil Protection Order Study,
supra note 59, at 49.

n111. Of course, criminal prosecution can result in more than incarceration. A batterer may be placed on probation and required to complete
counseling or substance abuse treatment or to reimburse the victim for property damage or medical bills.

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But victims who pursue criminal prosecution n112 typically must rely on the civil justice system as well. Rapid resolution of a volatile situation is
crucial in these cases. While civil protection order suits typically are scheduled for trial within ten to thirty days after the complaint is filed,
n113 criminal prosecutions typically proceed far more slowly. n114 In addition, a civil protection order can include a spectrum of relief far
broader than that available in a criminal prosecution. The protection order may direct the abuser to stay away from the victim, stop threatening
her and vacate the parties' residence. n115 It may award the victim temporary use and possession of jointly owned property n116 and can
resemble a short-term divorce decree in cases where the parties have children together. n117 The breadth of the civil protection order remedy
makes it both a necessary alternative and an important supplement to criminal prosecution.

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n112. Many victims do not wish to pursue the arrest and prosecution of a batterer, due to fear of retaliation, desire to save the relationship, or
concern that conviction will cut off child support. See Peter Finn, Statutory Authority in the Use and Enforcement of Civil Protection Orders
Against Domestic Abuse, 23 Fam. L.Q. 43, 44 (1989). In addition, battered women in the immigrant community may have concerns about
exposing the perpetrator to deportation; women from minority communities may have concerns about betrayal and ostracization. See supra text
accompanying notes 74-81.

n113. See Barbara J. Hart, National Council of Juvenile and Family Court Judges, State Codes on Domestic Violence: Analysis, Commentary and
Recommendations 8 (1992).

n114. In the District of Columbia, for example, criminal prosecutions for domestic violence misdemeanors typically are scheduled more than six
months after arraignment. See Interview with Robert Spagnoletti, supra note 62. Although a temporary order directing the defendant to stay
away from the complaining witness may be entered during the pendency of a criminal case, the scope of such an order is limited and its
enforceability lies within the sole discretion of the prosecutor.

n115. Almost all jurisdictions authorize the court to award these forms of relief in a civil protection order case. See Klein & Orloff, supra note 39,
at 914-28.

n116. At least 17 jurisdictions authorize the court to award this form of relief in a civil protection order case. See id. at 937.

n117. See supra text accompanying notes 43-44 (discussing the importance of these forms of relief for a battered woman's safety). It is worth
noting that these forms of relief are available in theory; the infrequency with which judges actually include custody and child support awards in
civil protection orders is a serious problem. See infra text accompanying note 228.

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Although a civil protection order can resolve a survivor's family-law problems swiftly, it only provides temporary relief. The order will expire six to
twelve months later, n118 leaving the couple back at square one. Both parents will once again have equal rights to the children - a particular
problem in domestic violence cases due to the high incidence of parental kidnapping used to abuse a victim psychologically. n119 The biweekly
child support checks suddenly cease, imposing on most victims serious financial difficulties that may force them back into the arms of their
abusers. n120 Many victims will spend several months with neither protection for their children nor financial assistance. This gap in legal
protection could be eliminated if a battered woman filed for permanent relief (through divorce, paternity and support, or custody actions) early
in the life of her civil protection order. But because so few domestic violence petitioners are represented by counsel, n121 only a tiny
percentage understand the need to do so.

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n118. A 1990 survey reports that 28 states set the maximum duration between six and 12 months, three states permit more than one year,
seven states set no upper limit, and eight states limit the duration to less than 180 days. See Finn & Colson, supra note 44, at 16-17. Due to
increasing evidence of the frequent recurrence of abuse following the expiration of year-long orders, the legislative trend is to increase their
duration. In its influential Model Code on Domestic and Family Violence, the National Council of Juvenile and Family Court Judges proposed that
civil protection orders should remain in effect until further order of the court. See National Council of Juvenile and Family Court Judges, Model
Code on Domestic and Family Violence 306(5) (1994).

n119. See Klein & Orloff, supra note 39, at 972 (explaining that over one-half of child abductions occur in the context of domestic violence and
77% of abductors abduct a child out of a desire to hurt the other parent).

n120. See supra text accompanying note 43. This problem becomes increasingly acute as economic resources available to low-income battered
women continue to diminish. Over the past decade in the United States, the rich have been getting richer and the poor, poorer. Income for
families in the bottom 40% of the economy declined in real dollars, income for the top 20% rose by 28.9%, and income for the top one percent
rose by 74%. See James Garbarino, The Meaning of Poverty in the World of Children, 35 Am. Behav. Scientist 220, 223 (1992). Poverty also has
become more sustained: in the 1970s, 37 of 100 people moved out of poverty; in the 1980s, it was 23 of 100. See id. at 225. Divorce reform
also has resulted in a disproportionate impoverishment of women. See, e.g., Lenore J. Weitzman, The Divorce Revolution: The Unexpected Social
and Economic Consequences for Women and Children in America 323 (1985).

n121. The District of Columbia is fairly typical in this regard. Approximately 65% of petitioners and 70% of respondents are unrepresented in civil
protection order cases. See D.C. Gender Bias Task Force Report, supra note 44, at 143.

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It is difficult to overestimate the obstacles battered women face pursuing complementary relief through multiple cases. To initiate each case
the victim must master an unfamiliar set of court procedures and wait in line for hours. Each case must be filed in a separate clerk's office and,
in many jurisdictions, a different courthouse in another part of town. If she is employed, or has difficulty obtaining child care, she often cannot
spare the hours and sometimes days it takes to get into several court systems, let alone pursue multiple cases through to trial. For a person in
crisis, who may be recovering from a beating the night before, these obstacles can prove insurmountable. n122 An added complication is that a
criminal case is brought by a prosecutor, whom the victim may perceive as "her" lawyer, but who actually represents the government's
sometimes divergent interests; n123 civil cases may involve a different attorney for each litigation or, more typically, no legal assistance at all.

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n122. In the District of Columbia, prior to 1995, victims who wished to file civil protection order cases were required to go to two offices, the
D.C. Citizen's Complaint Center and the D.C. Superior Court. Although the buildings were only three blocks apart, many victims never made it to
the second stop. Interview with Meshall Thomas, Project Manager, Emergency Domestic Relations Project, in Washington, D.C. (July 15, 1998)
(detailing the experiences of Ms. Thomas during her 19 years of working with victims at the Complaint Center and the courthouse).

n123. The prosecutor represents the government, whose interests in pursuing or dropping charges or in seeking a particular sentence, often
differ from those of the individual victim. See supra text accompanying note 73.

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This artificially fragmented system reinforces a larger tendency to direct most battered women toward a single avenue in the multi-track court
system, leaving few able to gain access to the manifold resources they need. For example, when the police respond to a domestic violence call
and find probable cause to believe a crime has occurred, they direct the victim toward the criminal justice intake process, typically informing her
that she must report to the prosecutor if she wishes to press charges. n124 But, in twenty-two to forty percent of cases, police failed to let
victims know about the additional possibility of a civil protection order remedy, n125 and even more frequently failed to inform them about the
basic procedures for obtaining such an order. n126 And because most prosecutors know little about the civil protection order process, they are
unlikely to assist the victim in deciphering the civil system. n127

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n124. This example presents a best-case scenario of police response. In many cases that meet the probable cause standard, the police do not
even assist the victim to initiate the criminal justice process. For example, in a study based on data collected in 1994-95, prior to the existence
of D.C.'s domestic violence court, petitioners who filed Civil Protection Order (CPO) cases in the District of Columbia reported that although the
police responded to their calls 93.8% of the time, they took notes in only 64.8% of cases, interviewed witnesses in 37.5% of cases, and
arrested respondents in 41.2% of cases. See NCSC Civil Protection Order Study, supra note 59, at 62 tbl.VII.1. Only 43.8% of victims reported
that they believed the police were helpful. See id. at 80. An earlier study, conducted in 1987-88, found that police responded to calls in 92% of
cases, but arrested the abuser in only five percent of cases. See Sands et al., supra note 55, at 3, 6. This study also found that there was no
correlation between the infliction of serious injury on the victim and likelihood of arrest; instead, the two factors most likely to lead to an arrest
were whether the batterer was verbally abusive to the police officer and whether he had damaged a vehicle. See id. at 4, 6-7.

n125. See NCSC Civil Protection Order Study, supra note 59, at 79-80 (Delaware: 40%; Denver: 39%; District of Columbia: 22%).

n126. See NCSC Civil Protection Order Study, supra note 59, at 79-80 (Delaware: 43%; Denver: 46%; District of Columbia: 29%).

n127. See Meeting Minutes, D.C. Domestic Violence Coordinating Council Civil Process Subcommittee (indicating that the widespread nature of
this problem was noted by panel of long-time local practitioners in domestic violence law) (on file with author).

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Likewise, when a shelter worker, advocate, or friend refers a victim to the appropriate clerk's office to file a civil protection order case, it is
highly unlikely that she will receive any information about the possibility of pressing criminal charges. National surveys reveal that court clerks
offer victims very limited assistance, n128 and that a substantial number actually discourage petitioners from filing for protective orders, n129
much less inform them of additional remedies to pursue. n130

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n128. See infra text accompanying notes 197-201.

n129. See infra text accompanying note 198.

n130. Many clerks refuse to provide victims with any assistance on the ground that court employees should not dispense "legal advice," and in
some jurisdictions legislation actually bars them from doing so. See Finn & Colson, supra note 44, at 26-27. Other reasons for court personnel's
apparent hostility toward victims are explored infra, text accompanying notes 188-197.

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A few victims manage to navigate both the criminal and civil systems. But the lack of coordination and information-sharing at intake confuses
many battered women about the fundamental differences between the two kinds of cases. As one researcher put it, "If I had two words to
describe what I see as the general experience of victims in the [justice] system, [they are] "mass confusion.'" n131 And the factor that "does
the most damage in terms of follow through is that [victims] don't differentiate at all, or if they do, they differentiate incorrectly, between the
civil and criminal systems." n132

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n131. Videotape: Domestic Violence Training (U.S. Attorney's Office 1996) (remarks of Lauren Bennett, Ph.D. candidate) (on file with author)
[hereinafer Domestic Violence Training].

n132. Id.

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The results can be devastating. In a recent study conducted in the District of Columbia, n133 for example, a woman was asked why she had
failed to appear as a witness in the criminal prosecution of her batterer, which seriously jeopardized the likelihood of his conviction. She
explained that during her civil protection order trial, she had pleaded with the judge to imprison the perpetrator. The judge responded that he
had no power to do so. So when she received notification of the criminal trial date, she threw it away. Why, she thought, would the criminal
case be any different? n134

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n133. See Lauren Bennett, Systemic Obstacles to the Criminal Prosecution of a Battering Partner: A Victim Perspective, J. Interpersonal
Violence (forthcoming 1999) (on file with author). The study was conducted prior to the institution of Washington's integrated domestic
violence court.

n134. See Domestic Violence Training, supra note 131. See also Bennett, supra note 133 at 8.

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2. Failure to Coordinate Orders Entered in Multiple Cases Involving a Single Family

Another major source of the traditional court system's failure is a deeply ingrained judicial tradition - the creation of an information vacuum
around the finder of fact. A judge presiding over a case considers only the information formally submitted into evidence by the parties appearing
before him - nothing more. Two predictable consequences flow from this tight restriction. First, a judge who is unaware of other related cases
cannot possibly assess the most appropriate course of action. Second, different judges hearing parallel cases arising from the same incident
frequently enter conflicting orders. The story that follows illustrates these problems.

Robin n135 filed a civil protection order case after her long-time boyfriend, Jim, high on PCP, tied her to a chair and beat her in the head and
face with a thick electrical cord. After trial, Judge Jones held that Jim had committed an intrafamily offense and ordered him to stay away from
Robin, her home, and her workplace. He awarded custody of the parties' two young children to Robin and gave Jim limited visitation rights, to
commence only after Jim completed a drug treatment program and parenting classes. To eliminate potential sources of contact and conflict
between the parties once visitation began, Judge Jones carefully specified the dates and times that visits would occur and designated Larry,
who was Robin's uncle and got along fairly well with Jim, to transfer the children between parents. The civil protection order containing these
provisions was to remain in effect for twelve months.

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n135. See supra note 13.

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Soon afterward, the prosecutor decided to press charges against Jim for aggravated assault. So ten days after the civil protection order trial, in
a different courtroom on a different floor, Judge Smith presided over Jim's arraignment. The case file in front of Judge Smith contained no
cross-referenced data informing her that the defendant and complaining witness were involved in a civil case arising out of the same incident, or
that a civil protection order was already in effect. And no one appearing before Judge Smith volunteered this information. Robin was not asked
to appear in court at this early stage of the criminal process; even if she had been present, she was not a party to the criminal case and
therefore probably would not have been given an opportunity to speak. n136 Because the court had no integrated intake process, the
prosecutor had no information about any related civil case. And even if Jim told his defense attorney about the protection order, the lawyer
might well have concluded that it would be against his client's interests to inform the judge of other lawsuits pending against him.

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n136. The parties to a criminal prosecution are the defendant and the state. The victim's role is limited to that of a "complaining witness."

In the absence of an advocate, a victim also is likely to be too intimidated by the court process and the immediate presence of her abuser to
speak. See Kinports & Fischer, supra note 98, at 216-18. And most victims would not understand the need to raise the issue, because they
would assume that the judge already is informed about all pending cases.

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Left in the dark, Judge Smith ordered Jim released pending trial. She issued a typical criminal stay away order, directing Jim to stay away from
Robin and her home, "except for reasonable rights of visitation with the children." The order was to remain in effect until trial, set in six months.

The family was then left to sort out two entirely inconsistent court orders. With which should they comply? Both orders were issued by trial
court judges; neither had legal precedence over the other. If Jim now comes to Robin's apartment claiming he wants to exercise his "reasonable"
visitation rights, he is in violation of the civil protection order. But what will the police do when Robin calls? Can they arrest Jim when he shows
them Judge Smith's order, which gives him the right to be on the premises to see his children? And if Robin seeks to enforce her protection order
by asking the court to hold Jim in contempt, she is unlikely to succeed. Jim has a strong argument that his violation was not knowing and
"willful," n137 because he thought he was complying with the terms of the criminal stay-away directive. Entry of the criminal stay-away order
thus deeply undermined the effectiveness of Robin's civil protection order.

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n137. In most jurisdictions, the elements of criminal contempt include "willful" violation of a court order. See, e.g., In re Thompson, 454 A.2d
1324, 1327 (D.C. 1982).

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These failures of coordination and information sharing at intake and at trial preclude domestic violence victims from obtaining comprehensive
justice. How can these problems be remedied?

B. Integrated Domestic Violence Courts: A Modest Proposal for Reform

The creation of specialized, integrated domestic violence courts affects increased case coordination from the point of intake through trial.
Several jurisdictions have taken initial steps in this direction, either by consolidating all civil protection order cases into a single docket, n138 or
by creating a dedicated calendar for domestic violence criminal prosecutions. n139 But until intake and case processing of civil and criminal
cases are integrated into a single, coordinated system, the problems inherent in today's justice system cannot be resolved effectively. Only
three jurisdictions - the District of Columbia, Florida, and Hawaii n140 - have created such unified courts.

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n138. See Mithra Merryman, Specialized Domestic Violence Courts: A New Means to Address an Age Old Problem 32 n.5 (1994) (unpublished
manuscript, on file with author).

n139. Examples of specialized criminal misdemeanor domestic violence dockets can be found in Chicago, Illinois; Winnipeg, Ontario; and Quincy,
Massachusetts. See Jilian Mincer, Victims of Abuse Seek Help in Experimental Court, N.Y. Times, Aug. 11, 1985, at A28; Elena Salzman, The
Quincy District Court Domestic Violence Prevention Program: A Model Legal Framework for Domestic Violence Intervention, 74 B.U.L.Rev. 329,
335 (1994); E. Jane Ursel, The Family Violence Court of Winnipeg, Manitoba L. J. 100, 100-102 (1994).

n140. The Dade County court was the first Florida court to integrate the civil and criminal domestic violence justice systems. See Cindy S.
Lederman, Dade County Domestic Violence Court: A Plan for the Future, Ct Rev., Spring 1993, at 22-23. The state's original Dade County model
has been followed in Broward, Hillsborough, Jacksonville, and St. Petersburgh counties. See Merryman, supra note 138, at 3 n.4. In 1965, Hawaii
established its unified family court, which includes all domestic violence cases. See Barbara A. Babb, Where We Stand: An Analysis of America's
Family Law Adjudicatory Systems and the Mandate to Establish Unified Family Courts, 32 Fam. L.Q. 31, 38 (1998).

Of these three, the District goes furthest. First, the Dade County domestic violence court lacks jurisdiction to consider child custody, visitation,
or support issues - even in civil protection order cases - a major drawback in providing comprehensive, effective relief to victims. Interview with
Linda Dakis, Administrative Judge, Miami Domestic Violence Department, in Miami, Fla. (Nov. 1996). Second, the Dade County court does not
incorporate any family law cases that can provide longer-term relief than that available in a civil protection order. See id. Hawaii's family court's
have comprehensive jurisdiction, Babb, supra, at 42, but resource limitations prevent them from hearing criminal cases in some parts of the
state. See Laudan Y. Aron & Krista K. Olson, Urban Institute, Efforts by Child Welfare Agencies to Address Domestic Violence: The Experiences
of Five Communities 33 (1997).

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Integrated domestic violence courts typically aim to achieve at least three fundamental goals. First, they try to provide victims with a
"one-stop shopping" intake center that provides comprehensive assistance with the full range of intimate violence litigation and related social
services. Second, they try to coordinate civil protection order, family law, and criminal dockets so that the court can handle cases, to the
greatest extent possible, on a "one family, one judge" basis. n141 Finally, they ensure that the court itself is located in a place that provides
victims with security and protection from physical assault.

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n141. Other important features of integrated domestic violence courts that are beyond the scope of this Article are the provisions of meaningful
intervention, counseling, and monitoring of abusers and the maximization of the provision of needed resources to the entire family.

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1. A "One-Stop Shopping" Intake Center

An effective domestic violence intake center must serve as the point of entry for all domestic violence complainants in civil and criminal cases.
It should be designed to provide comprehensive services through a coordinated effort of staff members from organizations and agencies with
complementary areas of expertise and responsibility. A description of the District of Columbia's Domestic Violence Intake Center illustrates some
of the possibilities, n142 although some aspects of this relatively new work-in-progress still work better in theory than in practice.

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n142. The Domestic Violence Intake Center is jointly administered by the author, as Director of the Georgetown University Emergency Domestic
Relations Project, and the Chief of the Office of Corporation Counsel's Domestic Violence Unit. See District of Columbia Superior Court, District of
Columbia Domestic Violence Plan 63 (1995) (on file with author) [hereinafter D.C. Domestic Violence Plan]. Where no other citation is provided,
the discussion below is based on the author's personal knowledge as Co-Director of the Intake Center.

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The Domestic Violence Intake Center, located in D.C.'s central courthouse, assists petitioners in "intrafamily" cases, which local law defines as
those where the parties are related by blood, legal custody, marriage, cohabitation, a child in common, or a romantic relationship. n143 Victims
are referred to the Intake Center by police officers, shelters, hotlines, and advocacy organizations. n144

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n143. D.C. Intrafamily Offenses Act, D.C. Code Ann. 16-1001(5)(A)-(B) (1998).

n144. Glitches remain in the attempt to centralize the intake process. In particular, some criminal cases are initiated directly through the
prosecutor's office with no Intake Center involvement. Efforts are being made to remedy this problem.

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When a victim enters the Intake Center, she first meets with a Civil Intake Counselor to discuss the protection order process. n145 Some Intake
Counselors are employed by a private, outside advocacy organization; n146 others by a government agency. n147 The Intake Counselor
conducts an intensive interview with each victim, explaining the protection order process and describing the potential relief. She assists the
petitioner in filling out requisite pleadings and other court forms, and takes photographs of any visible injuries. The counselor describes what the
petitioner can expect at the court hearing and helps her prepare for trial and identify potential witnesses and exhibits. The counselor discusses
the option of obtaining an immediate, ex parte temporary protection order to cover the two-week period from intake to hearing, and assists the
petitioner in developing a practical plan to keep herself safe. n148 If the victim is in particular need of legal assistance, n149 either because she
is not sufficiently articulate to present her case to the court, or because her case involves complex legal issues or especially severe physical
abuse, the counselor will assist her in obtaining representation by a government attorney, a local legal service provider, a volunteer member of
the private bar, or a law school clinical program. n150

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n145. Four full-time counselors are on staff, all of whom have bachelors degrees or law degrees as well as substantial experience in the
domestic violence field. One of the civil intake counselors is bilingual in English and Spanish, which is the language spoken by the largest minority
language population in the District of Columbia.

n146. This organization, the Emergency Domestic Relations Project, is a part of the Georgetown University Law Center's Domestic Violence
Clinic. The author serves as Director of the Project, which has been providing legal information and referral services to victims of domestic
violence for 20 years.

n147. The Office of Corporation Counsel, the legal arm of the D.C. Mayor's Office, is statutorily designated to assist victims of domestic
violence. See D.C. Code Ann. 16-1003(a) (1991). Until 1982, this office was the sole route to obtaining a protection order - no private right of
action existed. See D.C. Code Ann. 16-1003(a) (1970) (amended 1982). Despite this fact, the Corporation Counsel failed to designate even a
single full-time attorney to this caseload until 1990, 20 years after the statute was first enacted.

n148. These services are provided to an average of over 20 petitioners every business day.

n149. The overwhelming number of civil protection order cases filed each year - close to 4,000 - preclude adequate legal representation of
victims. As is true in virtually every other jurisdiction, only 30% of petitioners have counsel in Washington, D.C. See D.C. Gender Bias Task
Force Report, supra note 44, at 143.

n150. The Emergency Domestic Relations Project regularly trains private attorneys who are interested in representing victims of domestic
violence in civil protection order cases, and the D.C. Bar Public Service Activities Corporation sponsors an annual family law training seminar that
focuses on how to represent domestic violence victims. Law school clinical programs devoted to student representation of domestic violence
victims exist at American, Catholic, Georgetown, and George Washington universities.

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If the victim and batterer have minor children in common, the Intake Counselor explains the short-term nature of the relief available through a
civil protection order. If the petitioner is interested in pursuing an additional action for permanent child support, she next sees a representative
from the D.C. Office of Paternity and Child Support Enforcement, who assists her in filing a paternity and support petition. The civil protection
order and paternity and support cases are scheduled for trial on the same day, so that any child support award can be entered in the long-term
paternity and support case. This way, the payment obligation will continue until the children reach the age of majority, rather than ceasing
upon expiration of the one-year protection order. Although the Intake Center hopes to provide assistance with other family law cases in the
future, such as divorce and custody suits, insufficient resources have precluded such activity to date. n151

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n151. The Chief Judge has committed to including all family law cases, other than child abuse and neglect, in the Domestic Violence Court. See
Administrative Order No. 96-25, Re Domestic Violence Unit of the Court (Oct. 31, 1996) (on file with author); cf. District of Columbia Domestic
Violence Plan, supra note 142, at 38.

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After meeting with a Civil Intake Counselor, the petitioner has an opportunity to meet with a U.S. Attorney's Office Victim Advocate to discuss
the possibility of pursuing a criminal prosecution. The Victim Advocate explains the difference between, and complementary nature of, the civil
and criminal justice systems and clarifies that both kinds of cases may be pursued simultaneously. n152 If the accused perpetrator already has
been arrested, the Victim Advocate collects information necessary to the decision of whether to press charges, including the victim's wishes,
potential sources of proof, the severity of the offense, and the history of violence. The Advocate communicates this information to a
prosecutor, who decides whether and how to charge the case.

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n152. This information also is provided in written form, in Charlotte Clarke & Deborah Epstein, U.S. Dep't of Justice, Know your Rights: A Victim's
Guide to the Domestic Violence Justice System (1997).

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If the batterer has not been arrested and the criminal justice process has not yet been initiated, the Victim Advocate makes a preliminary
assessment of whether the case might merit prosecution. In such cases, if the victim is interested in pursuing a criminal action, the Advocate
takes her to the police officer on staff at the Intake Center. The officer conducts an interview and initiates an investigation. If this leads to the
issuance of an arrest warrant, a criminal prosecution may begin. n153

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n153. This facet of the intake system sounds better in theory than it is in practice. The Metropolitan Police Department has failed to assign a
sufficiently well-trained and committed officer to the Intake Center; the result has been the presentation of a paucity of arrest warrant
applications for approval from the prosecutor's office. Interview with Robert Spagnoletti, Chief, U.S. Attorney's Office Domestic Violence Unit, in
Washington, D.C. (June 1, 1998).

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Representatives from the D.C. Coalition Against Domestic Violence, a grassroots victim service organization, also are on staff at the Intake
Center. The Coalition advocates are available to provide interested victims with non-legal assistance, including referrals to emergency shelters,
social service agencies, battered women's support groups, and counseling services. n154

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n154. Interview with Stephanie Snowden, Director, Victim Advocacy Program, D.C. Coalition Against Domestic Violence, in Washington, D.C.
(Mar. 18, 1998).

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After a petitioner completes the intake process, she goes next door to the central domestic violence clerk's office. n155 Specially trained clerks
open the necessary case files and schedule hearing dates. They check the court's computer systems to discover other cases involving the
same family members and attempt to bring the court files together so that the judge assigned the new case will have a complete case history.
n156

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n155. This office bears the unwieldy title of Domestic Violence Coordination Unit. See District of Columbia Domestic Violence Plan, supra note
142, at 55-58.

n156. Again, this component of the process is problematic in practice. Different sectors of the court utilize separate, and often incompatible,
computer systems, making it inordinately burdensome to identify all relevant cases.

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The number of petitioners assisted at the Domestic Violence Intake Center is climbing steadily and currently averages twenty two per day, n157
in a city of 550,000. n158 Initial data indicate that increased coordination and advocacy services have opened up new options for victims. The
number of civil protection order suits has increased substantially n159 and the number of criminal prosecutions has skyrocketed. n160

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n157. See Domestic Violence Intake Center Sign-In Sheets (Jan. 1, 1998-June 30, 1998) (copies on file with author).

n158. See U.S. Dept. of Commerce, Bureau of the Census, Statistical Abstract of the United States 28 (1998).

n159. See Memoranda from Paul Roddy, Director, Domestic Violence Unit, to Eugene Hamilton, Chief Judge, D.C. Superior Court (Jan. 1996-June
1997) (on file with author) (Jan. 1997: 259 new Civil Protection Order (CPO) cases filed; Feb. 1997: 215; Mar. 1997: 298; Apr. 1997: 295; May
1997: 289; June 1997: 315) [hereinafter Roddy Memoranda.]

n160. See id. (Jan. 1997: 193 new domestic violence criminal misdemeanors filed; Feb. 1997: 160; Mar. 1997: 232; Apr. 1997: 285; May 1997:
283; June 1997: 288).

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In addition, the Intake Center has facilitated a substantial increase in the entry of child support awards in domestic violence cases. Previously,
such awards were entered in only 2.6% of civil protection order cases involving a custody order. n161 Initial data indicate that child support is
now being entered routinely in civil protection order cases in which the parties have children in common. n162 In addition, petitioners who
obtain child support orders now gain an enforceable obligation that lasts until the child reaches adulthood, instead of only one year; they also
receive an average monthly payment of over three hundred dollars, n163 far above the previous fifty dollar average. n164

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n161. See D.C. Gender Bias Task Force Report, supra note 44, at 148.

n162. See Roddy Memoranda, supra note 159.

n163. See Office of Corporation Counsel Cumulative Report, Domestic Violence Paternity and Support Cases (1997).

n164. See Emergency Domestic Relations Project Annual Report (1995).

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2. Coordinated Judicial Calendars

An effective court scheduling system must promote long-term judicial responsibility for cases and must maximize the information available to
each judge about every case. A description of the Washington, D.C. Domestic Violence Court system provides a starting place for thinking about
how to best accomplish these goals.

Prior to the formation of D.C.'s new court, judges were assigned to hear civil protection order cases on a monthly rotation, returning only after a
several year hiatus. This exposure was far too short to gain any real expertise in the area, and many judges openly stated their disdain for the
assignment. Several judges failed to take responsibility for even this short-term caseload, routinely continuing cases that appeared complex or
time-consuming until the first business day of the next month, when another judge would rotate onto the calendar and perform the same ritual.

Today, three judges and one hearing commissioner are assigned to the court on a full-time basis for a year at a time. The judicial officers and
their clerks now receive training n165 on domestic violence issues before commencing the assignment. Training sessions and written materials
challenge commonly-held myths about domestic violence victims and perpetrators, and include discussions about applicable law and procedure,
as well as special issues that may arise, such as cases involving immigrant and non-English-speaking parties, or special considerations applicable
where parties appear pro se. n166 The assigned judges meet on a bi-weekly basis with a group of representatives from agencies and
organizations involved with the court, including the prosecutor, public defender, victim advocates, the clerk's office, pretrial services, probation,
and court administration. The meetings focus on efforts to identify and resolve existing procedural problems with the court and on strategies for
continuing improvement.

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n165. Although the very existence of judicial training constitutes an improvement over the past, the training currently permitted by the court is
still quite limited.

n166. See, e.g., Deborah Epstein, District of Columbia Domestic Violence Benchbook: Civil Protection Order Cases 42-44 (1997).

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Each judge presiding over a domestic violence case typically receives information about the other pending and resolved suits involving the same
family. n167 By reading through the accumulated case files, he can obtain a more complete story about the parties' history together. This
allows for a better-considered ruling and prevents the entry of multiple, conflicting orders.

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n167. As mentioned, supra note 156, this coordination still works far better in theory than in practice. Improvement should occur when the
court obtains a fully unified data processing system.

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3. Physical Location of the Court

Another important aspect of an improved court system involves the physical location and layout of a domestic violence court. A long-term
failure to examine this issue has created physical hazards for domestic violence victims nationwide. n168

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n168. In response to the numerous gender bias task force reports highlighting this concern, a number of jurisdictions are beginning to make
improvements. See, e.g., New York Judicial Committee on Women in the Courts, Five Year Report 1 (1991).

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In Washington, D.C., civil protection orders previously were heard in a single courtroom, located on a dimly-lit, basement level of the courthouse
- the only level that was excluded from hallway patrols by marshals and security officers. Although all cases were scheduled for 8:30 A.M., the
courtroom did not open until 9:00 and the judge typically did not take the bench until 10:30 or later. Victims were forced to wait for hours
alongside their batterers in the overcrowded courtroom or in the adjacent hallway. On numerous occasions lawyers were forced, by default, to
intervene during verbal and physical attacks by batterers. n169 Many jurisdictions have reported that victims are at risk of abuse in the
courthouse itself due to the lack of separate waiting rooms and security services. n170

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n169. From 1990 to 1996, I personally intervened in many such situations. For a description of one batterer's attempts to physically and verbally
attack a petitioner as she waited to testify against him, see Transcript of Proceedings at 20, Stephens v. Kelly, No. 1490-91 (D.C. Sup. Ct.
Nov. 26, 1991) (on file with author).

n170. See D.C. Gender Bias Task Force Report, supra note 44, at 157; Achieving Equal Justice for Women and Men in the Courts: The Draft
Report of the Judicial Council Advisory Committee on Gender Bias in the Courts (California) tab 6, 23-24 (1990) [hereinafter California Gender
Bias Task Force Report]; Massachusetts Gender Bias Task Force Report, Report of the Gender Bias Study of the Supreme Judicial Court,
Commonwealth of Massachusetts (Ruth I. Abrams & John. M. Grezney eds., 1989), at 91 [hereinafter Massachusetts Gender Bias Task Force
Report]; Report of the Missouri Task Force on Gender and Justice, 58 Mo. L. Rev. 485, 516 (1993) [hereinafter Missouri Gender Bias Task Force
Report]; Report of the New York Task Force on Women in the Courts, 15 Fordham Urb. L.J. 1, 37 (1986-87) [hereinafter N.Y. Gender Bias Task
Force Report].

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Today, Washington's Domestic Violence Court is housed on the first floor of the court building, in four adjacent courtrooms that are close to
both the main entrance, staffed by a high concentration of U.S. Marshals and court security officers, and the child care center. Although
scheduling cases and lack of separate waiting rooms for victims and perpetrators remain problematic, the improvements in lighting and security
have reduced the incidents of hallway assault.

C. Concerns Raised by An Integrated Intake and Calendaring Process

There are several drawbacks to moving domestic violence cases into a specialized court. Insufficient physical space and personnel can result in
a lack of privacy for victim interviews and lengthy intake waiting periods. n171 Incompatible data processing systems can obstruct case
coordination. n172 Judicial training may be insufficient n173 and overburdened judges may become subject to burnout. Inadequate resources
can prevent the provision of comprehensive services for batterers, survivors, and their children.

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n171. Sometimes the D.C. intake process is so lengthy that petitioners leave in frustration before they are provided with essential services.

n172. See supra note 156.

n173. See supra note 165.

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In addition, several policy concerns loom large. Perhaps the foremost of these is that an integrated domestic violence court may exacerbate a
deeply-ingrained tension between those communities primarily concerned about domestic violence and those primarily concerned about child
abuse and neglect.

An integrated court system creates an environment in which victims with children are more likely to have extensive contact with government
attorneys and paralegals. This, in turn, means that government workers are more likely to hear about abuse that occurred in the presence of
children or where children themselves actually were harmed. In the District of Columbia, this has led to an increase (albeit a small one) in the
rate of government reports to Child Protective Services.

These reports can result in two scenarios which may undermine the effective enforcement of domestic violence laws. In one, the victim herself
is charged with child abuse. In the second, the perpetrator is charged with child abuse and the victim is charged with "failure to protect" the
children. In either case, there is a substantial possibility that the children will be removed from the home and separated from both parents.
These cases point to a long-standing historical conflict between the domestic violence community and the children's rights community - a
largely unnecessary one, given how much common ground they actually share.

Child advocates have focused primarily on the rapid removal of children from the violent home. But this approach underestimates the influence
of adult-on-adult domestic abuse on the family dynamic. If battered women learn that seeking protection from their abusive partner increases
the risk that their children may be taken away, they will be greatly deterred from coming forward. As more women become reluctant to pursue
legal assistance, both they and their children, who are dependent on them to escape, ultimately will remain trapped in violent families.

Moreover, in many "failure to protect" cases, the victim stays with the perpetrator not because she does not care about the children, but
because she believes that staying is the best way to do so. Statistically, the moment of leaving is frequently the most dangerous and the most
likely to result in death - of both the victim and her children. n174 Adult victims are acutely aware of this possibility and, in addition, frequently
report that the batterer threatens that if she leaves, he will take the children and she will never see them again. To stay and offer the children
what protection she can may at times be a better option than to allow the perpetrator to abduct and mistreat the children. n175

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n174. See Mahoney, supra note 41, at 65-71.

n175. A woman's fear that an abuser may abduct her children is well-founded: a strong connection exists between domestic violence and
parental kidnapping. See Klein & Orloff, supra note 39, at 972.

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I recently represented Phyllis Ojokolo, n176 a West African woman who came to the court's Domestic Violence Intake Center seeking a civil
protection order. Her husband Tom had slapped and punched her repeatedly all over her body; bitten her arms and back, leaving permanent
scars; raped her repeatedly; kicked her in the head; broken a fishing rod across her back; thrown her down a staircase; choked her with a
telephone cord; pulled handfuls of hair out of her head; pinned her to the floor and forced her two youngest children to beat her; and
repeatedly threatened to kill her. He also frequently hit the children in the face and on their heads, and whipped them with belts, sometimes
until they bled. Tom worked for the court, and Phyllis knew little about the American system of justice. So she believed him when he repeatedly
told her that if she ever tried to leave him or take him to court, he would bring court employees to testify on his behalf and would convince the
judge that she was insane and that the children should be taken away from her. Terrified of what might happen to her children, this threat kept
Phyllis hostage to Tom's abuse for nine years.

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n176. See supra note 13.

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But one night, Tom woke their five year-old daughter at 3:00 A.M. and dragged her into the bathroom, despite the girl's attempts to resist. A
few hours later, Phyllis managed to get into the bathroom, where she saw blood on the tile floor. She later found her daughter's underwear in
the washing machine, with remnants of blood stains still visible on the crotch. The little girl told her mother that she had been raped. n177
Phyllis had never before believed Tom was capable of sexually abusing the children; she decided - right then and there - that no matter what
the risks were, she had to seek help.

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n177. She said, "Daddy put his pee pee place in me."

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She went to the Domestic Violence Intake Center and told her story to a government attorney, explaining that she wanted to get Tom out of
the house and to terminate his contact with her and the children. The attorney immediately filed child abuse charges against Tom, but then
informed Phyllis that failure to protect charges would be filed against her as well, on the ground that no one who had remained in an abusive
environment for so long could be relied upon to protect the children from Tom in the future. The lawyer called the charges a "carrot," telling
Phyllis that if she followed through on her civil protection order case, the failure to protect charges would be dropped.

Phyllis left court that day with an emergency order that terminated Tom's rights to see the children until the matter could be resolved at trial. A
few weeks later, the court held a four-day hearing and issued a civil protection order barring Tom from contacting Phyllis or the children for a
year and requiring him to go to counseling. He was denied any visitation rights and ordered to leave the family home. In the months that
followed, Tom brought Phyllis back to court five times, attempting to regain contact with the children and obtain control over the family. Phyllis
fought every motion and won each time. She took every form of legal action available to her to protect her children, and repeatedly proved that
she was capable of doing so. She informed government prosecutors of each successful outcome, but they refused to drop the failure to protect
charges. Trial in the abuse and neglect case against Phyllis and Tom was repeatedly delayed, and is now scheduled almost a year after Phyllis
received her protection order. She has been forced to spend this entire period living with these charges hanging over her head, constantly
terrified that the government will take her children away - just as Tom had always threatened.

In communities and cities like Washington D.C., n178 stories like this one spread rapidly. Several clients have subsequently shared similar stories
with me and have asked whether they can seek protection without risking their relationships with their children. In light of my experience with
Phyllis, it is a difficult question to answer.

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n178. The District of Columbia has a population of 543,000. See supra, note 158.

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As Phyllis' case demonstrates, children right's advocates, in their fight to protect young children from injury and death, too often fail to consider
the dynamics of spousal abuse. However, domestic violence activists, desperate to bring the problem of woman abuse into public awareness
and engender concern, have felt compelled to insist that all battered women are completely innocent victims. They have resisted recognizing
that some victims belong to families where each member relates to one another through violence and threats of violence. I have repeatedly had