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

[This entire article is available under the optional reading. Only Section V(A) is included here.]

V. Failures of Neutrality: The Hostility of Judges and Court Personnel

The problems caused by ineffective or overzealous prosecutorial policies and the information-sharing failures of the conventional courts are not
the only systemic obstacles victims of domestic violence must surmount. In addition, intimate abuse complainants must face a deeply-ingrained
hostility often exhibited by court clerks and judges.

A. Explanations for Judicial and Clerical Hostility toward Battered Women

Most judges come to the bench with little understanding of the social and psychological dynamics of domestic violence and, instead, bring with
them a lifetime of exposure to the myths that have long shaped the public's attitude toward the problem. The most persistent of these myths is
the belief that battered women could leave their relationships if they simply chose to do so. But this belief ignores the real-life obstacles facing
women who wish to end their relationships. n188 These may include fear of retaliation; n189 lack of economic resources; n190 concern for
children; emotional attachment to the perpetrator; n191 perceptions of the availability of social support; n192 and religious and culturally-based
values and norms. n193 In addition, this belief ignores the fact that many women make numerous unsuccessful attempts to leave before they
actually are able to do so, n194 and are punished with a more severe beating or even homicide. n195

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n188. This belief further assumes that leaving is the sole acceptable option for battered women, ignoring individual women's agency in making
decisions about their own lives, as well as the religious and cultural norms that contribute to such decisions.

n189. See Part III.B, supra.

n190. See supra text accompanying note 43.

n191. See, e.g., Herb Goldberg, The Dynamics of Rage Between the Sexes in a Bonded Relationship, in Clinical Approaches to Family Violence 59,
60-66 (James C. Hansen & Laurence R. Barnhill eds., 1982).

n192. See supra text accompanying notes 94-96.

n193. See supra text accompanying notes 74-81. For example, cultural norms may pressure women to remain in and attempt to preserve a
marriage, despite physical abuse; they may pressure her to avoid seeking assistance from those outside the minority community. See also Nilda
Rimonte, A Question of Culture: Cultural Approval of Violence Against Women in the Pacific-Asian Community and the Cultural Defense, 43 Stan.
L. Rev 1311, 1319-20 (1991); Richard J. Gelles & Claire P. Cornell, International Perspectives on Family Violence (1983); David Levinson, Family
Violence in Cross-Cultural Perspective 52-66 (1980).

n194. A study of more than 6,000 women in 50 different shelters showed that, on average, the women had made five prior help-seeking
attempts before successfully leaving. See Edward W. Gondolf, Battered Women as Survivors 29 (1988).

n195. See Mahoney, supra note 41, at 65-71; Anna Jones, Next Time She'll Be Dead: Battering and How to Stop It (1994); see generally E.A.
Stark & A. Flitcraft, Violence Among Intimates: An Epidemiological Review, in Handbook of Family Violence (V.B. Van Hasselt et al. eds., 1988).

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Lack of knowledge about this basic aspect of domestic violence causes many judges and clerks to become frustrated with petitioners whom
they perceive as "refusing" to leave the abusive relationship. Operating under this erroneous perception, they find the victim's behavior
enormously frustrating. n196 Clerks across the country complain bitterly about domestic violence cases, claiming that they require too much
work and that too often the victims drop their suits anyway. n197 This view results in clerks regularly refusing to provide assistance to
petitioners and often actively discouraging them from filing for civil protection orders. n198 Some clerks refuse to tell battered women about the
availability of such orders; others refuse to assist victims in completing the necessary forms or refuse to make the forms available. n199 Others
will inform a petitioner (incorrectly) that she can only get one protection order in a lifetime, "so she had better be sure this [is] the time she
really needs it." n200 Some clerks arrogate to themselves the right to screen cases to determine which will be presented to a judge. n201

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n196. The following discussion of judicial and clerical attitudes is based in large part on the findings of gender bias task force reports published
during the period from the late 1980s to the mid-1990s. These reports typically discuss incidents and behavior patterns observed during the
preceding five to 10 years. As a result, it is possible that some improvements have been implemented since the reports were issued.

n197. See Missouri Gender Bias Task Force Report, supra note 170, at 502-03.

n198. See Kinports & Fischer, supra note 98, at 172-73 (stating that 56% of respondents reported such behavior in national survey of domestic
violence service providers). See also Minnesota Supreme Court Task Force for Gender Fairness in the Courts: Final Report, 15 Wm. Mitch. L.
Rev. 871, 877 (1989) [hereinafter Minnesota Gender Bias Task Force Report]; Illinois Task Force on Gender Bias in the Courts: Executive
Summary with Status of Recommendations 11 (1990) [hereinafter Illinois Gender Bias Task Force Report].

n199. See Gender Bias in the Courts: Report of The Special Joint Committee on Gender Bias in the Courts 12 (1989) [hereinafter Maryland
Gender Bias Task Force Report]; Illinois Gender Bias Task Force Report, supra note 198, at 11. Such behavior occurs even in jurisdictions where
clerical assistance is mandated by statute. See Illinois Gender Bias Task Force Report, supra note 198, at 11.

n200. Report on Gender and Justice, 16 J. Contemp. L. 135, 211 (1990). The hostility of court clerical workers has become legendary in the
domestic violence advocacy community. As one victim service provider from a rural southern community put it, "Court personnel will avoid
helping [battered] women in any way they can." Kinports & Fischer, supra note 98, at 173.

n201. See Minnesota Gender Bias Task Force, supra note 198, at 877.

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Judges similarly mistreat domestic violence victims. When cases are brought by women who have dropped charges on previous occasions,
judges have made such comments as: ""oh, it's you again,' or "how long are you going to stay this time,' or "you want to go back and get beat
up again.'" n202 Others have gone so far as to threaten victims with sanctions for repeated use of the court system. n203 A particularly
egregious example occurred in North Dakota, where a judge is reported to have told a domestic violence petitioner, "If you go back [to the
perpetrator] one more time, I'll hit you myself." n204

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n202. Maryland Gender Bias Task Force Report, supra note 199 at 8.

n203. See id.

n204. North Dakota Commission on Gender Fairness in the Courts, A Difference in Perceptions: The Final Report of the North Dakota Commission
on Gender Fairness in the Courts, 72 N. Dak. L. Rev. 1113, 1208 (1996).

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In addition to their failure to understand the complexities of leaving abusive relationships, n205 untrained court personnel and judges can and do
misinterpret victim behavior that is symptomatic of the psychological trauma induced by extended abuse. Survivors of prolonged or severe
domestic violence often exhibit some symptoms or meet the full diagnostic criteria for post-traumatic stress disorder (PTSD). This diagnosis,
first constructed to explain the long-term psychological impact of traumatic combat on war veterans, n206 produces three major categories of
symptoms: "hyperarousal" (being in a constant state of alertness for and expectation of danger); "intrusion" (reliving the violent experience as if
it were continually recurring in the present, through flashbacks and nightmares); and "dissociation" (a numbing response that includes repressing
memories of violent incidents). n207

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n205. While much of judicial hostility stems from a failure to understand domestic violence issues, some of it may occur because the judge
himself is a batterer. In 1995, a New York judge was tried for assaulting his girlfriend. The girlfriend called 911 twice, saying, "I have a maniac
over here attacking me... I want to keep this quiet because he's a judge." Daniel Wise, Bronx Judge Is Acquitted After Assault Bench Trial,
N.Y.L.J., Feb. 17, 1995, at 1, 8. Although the girlfriend did not wish to press charges, the government proceeded and subpoenaed her to
testify. Two police officers testified that when they arrived upon the scene, they looked into the window of the ground floor apartment and saw
a man punching a half-naked woman in the head and chest. Two assistant District Attorneys testified that they saw the girlfriend in the
complaint room with a black eye and bruises. She testified that the judge had not hit her and that her facial swelling was caused by
menopause. She stated that her only injury was a split lip, which was self-inflicted when she lost her balance and fell into a door. The judge
who conducted the bench trial ruled without opinion and found his colleague not guilty. See id.

n206. See Judith L. Herman, Trauma and Recovery: The Aftermath of Violence - From Domestic Abuse to Political Terror 27 (1992). Poet and
historian Robert Graves describes how, as a civilian, he continued to react as though he were again in the trenches of World War I:

I was still mentally and nervously organized for War. Shells used to come bursting on my bed at midnight, even though [my wife] shared it with
me; strangers in the daytime would assume the faces of friends who had been killed. When strong enough to climb the hill behind Harlech and
visit my favorite country, I could not help seeing it as a prospective battlefield.

Id. at 35 (quoting Robert Graves, Goodbye to All That 257 (1929)).

n207. Id. at 35-47. Herman uses the term "constriction" rather than "dissociation." I chose the latter because it may be somewhat more familiar
to lay readers.

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These symptoms can profoundly affect the way a battered woman appears in court and, in turn, how she is perceived by a judge. Dissociation
may cause many survivors to testify about emotionally charged incidents with an entirely flat affect, or to be unable to remember dates or
details of violent incidents. n208 Hyperarousal can cause a victim to seem highly paranoid or subject to unexpected outbursts of rage in
response to relatively minor incidents. n209 The psychological phenomenon of intrusion may cause a witness to have vivid flashbacks on the
witness stand that interfere with her ability to testify. n210 But these explanations of battered women's behavior are not intuitively obvious,
and because they differ greatly from the behavior and demeanor that a judge encounters in his normal experience, they often are incorrectly
interpreted as indications of her lack of credibility. As former prosecutor Cheryl Hanna puts it, in court, "batterers can appear charming,
respectful, and persuasive; by contrast, abused women can appear hysterical, vindictive, or prone to exaggeration." n211

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n208. See Mary Ann Dutton, Understanding Women's Responses to Domestic Violence: A Redefinition of Battered Woman Syndrome, Hofstra L.
Rev. 1191, 1221 (1993); see. Herman, supra note 206, at 45.

n209. See Herman, supra note 206, at 120.

n210. Recently, one of my clinic's clients was describing an incident in which her husband's assault brought on a severe asthma attack, for
which she required hospitalization. As she testified about the incident at trial, she began to have trouble breathing. Within moments she was
hyperventilating; the trial had to be suspended while an ambulance took her from the courtroom to the hospital.

n211. Hanna, supra note 10, at 1878. For an explanation of why battered women may appear this way in court, see supra text accompanying
note 207.

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This can lead judges to identify with the batterer, distance themselves from the victim, n212 and apply artificially heightened standards of
proof. n213 A judge may refuse to issue civil protection orders when documentary or other physical evidence is absent; n214 when unbiased
eyewitnesses are not available; n215 when the only witnesses are the parties and, therefore, a credibility determination is required; n216 or
when the petitioner has failed to follow through with a protection order case on a prior occasion. n217 These kinds of standards have no basis
in law and are not applied in other family law cases.

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n212. See Hanna, supra note 10, at 1878.

n213. See Kinports & Fischer, supra note 98, at 200-05.

n214. See Kinports & Fischer, supra note 98, at 200-01; Conn. Task Force, Gender, Justice, and the Court 103-104 (1991) [hereinafter
Connecticut Gender Bias Task Force Report] (reporting that 50% of Connecticut judges require evidence of physical injury before issuing a
protection order and describing incident in which judge observed petitioner's injuries, told her he had received worse bruises playing golf, and
denied her petition); Maryland Gender Bias Task Force Report, supra note 199, at 4 (reporting an instance in which judge told petitioner to "go
back and get beaten up and have bruises" in order to get court protection). The Minnesota Task Force for Gender Fairness in the Courts
reported an incident in which a judge told a petitioner to provoke a more serious incident in order to support a protection order. When the
petitioner said, "I guess I need a knife in my back or at least to be bleeding profusely from the head and shoulders to get [a protection order],"
the judge responded, "That's just about it." Minnesota Gender Bias Task Force Report, supra note 198, at 875.

n215. See Kinports & Fischer, supra note 98, at 201-02.

n216. See id. at 202.

n217. See id.

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Judges and court personnel, like many laypeople, also frequently underestimate the seriousness and potential danger inherent in family abuse
cases. A National Institute of Justice survey found that many judges report the belief that domestic violence consists of "verbal harassment, or
a rare shove" and approach the issue as a ""relationship problem' amenable to marital counseling." n218 Virtually every study of gender bias in
the courts corroborates this finding. A widespread attitude exists that cases involving large financial interests and crimes perpetrated on
non-intimates are the "real" cases, while domestic violence is an inferior assignment or even a hazing ritual for junior judges. n219 Too many
judges call these cases "unimportant work" n220 and make it known that they do not want them in their courtrooms. n221 They view criminal
prosecutions of intimate abuse as "family matters" that do not belong in criminal court. n222

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n218. See Finn & Colson, supra note 44, at 4. See also Kinports & Fischer, supra note 98, at 207-10 (reporting results of national survey
indicating that judges do not take civil protection order cases seriously and often treat petitioners in insensitive and disrespectful ways).

n219. See Lynne Hecht Schafran, There's No Accounting for Judges, 58 Alb. L. Rev. 1063, 1077-78 (1995).

n220. Maryland Gender Bias Task Force Report, supra note 199, at 4.

n221. See Gender and Justice in the Courts: A Report to the Supreme Court of Georgia by the Commission on Gender Bias in the Judicial System,
8 Ga. St. U .L. Rev. 539, 571 (1992) [hereinafter Georgia Gender Bias Task Force Report].

n222. See, e.g., id. at 571; Equal Justice for Women and Men: Kentucky Task Force on Gender Fairness in the Courts 29 (1992) [hereinafter
Kentucky Gender Bias Task Force Report]; Maryland Gender Bias Task Force Report, supra note 199, at 4; New Jersey Supreme Court Task
Force on Women in the Courts: Report of the First Year 20-21 (1984) [hereinafter New Jersey Gender Bias Task Force Report].

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A few examples illustrate the problem. In 1994, Kenneth Peacock found his wife in bed with another man. Several hours later, he shot her in the
head with a hunting rifle. n223 When Peacock pleaded guilty to voluntary manslaughter, the Maryland judge who presided over his case
commented: "The most difficult thing that a judge is called upon to do ... is sentencing noncriminals as criminals." n224 He imposed an
eighteen-month sentence, to be served on a work release program which allowed Peacock to reenter the community within two weeks of
sentencing. n225 In another case, a Florida judge took testimony that a man had doused his wife with lighter fluid and set her on fire. The judge
burst into song in open court, crooning, "You light up my wife," to the tune of "You Light Up My Life." n226 Similarly, a New York judge began a
hearing with the comment, "Well, well, well, we had a little domestic squabble, did we? Naughty, naughty. Let's kiss and make up and get out of
my court." n227 These are just a few, particularly egregious examples culled from the studies and reports cited in this article. Although they
may be somewhat atypical in terms of the extent of the insensitivity exhibited, they show how deeply ingrained the problem is.

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n223. See Karl Vick, Maryland Judge Taking Heat in Cuckolded Killer Case, Wash. Post, Oct. 30, 1994, at A1, A28.

n224. Schafran, supra, note 219, at 1063 (citing Reporter's Official Transcript of Proceedings (Sentencing) at 13-14, State v. Peacock (Md. Cir.
Ct. Oct. 17, 1994) (No. 94-CR-0943)). The judge added, "I seriously wonder how many married men, married five years or four years would have
the strength to walk away, but without inflicting some corporal punishment.... I shudder to think what I would do." Id. at 1064.

n225. See id. at 1063. The judge further ordered Peacock to perform 50 hours of community service in a domestic violence program. See id. As
Schafran points out:

Sentencing in domestic violence and sexual assault cases often includes highly misguided requirements that defendants work in battered
women's shelters or rape crisis centers, which are the least appropriate placements for these types of offenders. Victim empathy does not come
from proximity to victims but from long, intensive, painful treatment in specialized batterers' and sex offenders' programs.

Id. at 1064.

n226. Supreme Court of the State of Florida, Report of the Florida Supreme Court Gender Bias Study Commission 121 (1990) (citing Debbie
Boone, You Light Up My Life, on Best of Debbie Boone (Curb Records 1990)).

n227. N.Y. Gender Bias Task Force Report, supra note 170, at 36.

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Judges who do not understand the seriousness of family abuse often issue civil protection orders that fail to include the comprehensive relief
necessary to stop future violence. Forty-three percent of domestic violence service providers across the country report that judges are
unwilling to consider awarding remedies clearly authorized by statute, especially custody, child support, and other forms of financial relief. n228
Similarly, gender bias task force reports indicate that judges impose lighter sentences on defendants convicted of domestic violence crimes than
those involving violence against strangers. n229

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n228. See Kinports & Fischer, supra note 98, at 205-07; see also D.C. Gender Bias Task Force Report, supra note 44, at 148 (1992) (reporting
child support awarded in only 2.6% of civil protection order cases involving a custody order).

n229. See Missouri Gender Bias Task Force Report, supra note 170, at 510; D.C. Gender Bias Task Force Report, supra note 44, at 126 (noting
that 70% of respondents reported generally shorter sentences in criminal prosecutions where perpetrator and victim are married; 50% of
respondents report same problem in domestic violence prosecutions involving unmarried intimates); Vermont Task Force Report on Gender Bias in
the Legal System: Introduction and Executive Summary, 15 Vt. L. Rev. 395, 428 (1990-91); Kentucky Gender Bias Task Force Report, supra
note 222, at 29-31; Illinois Gender Bias Task Force Report, supra note 198, at 151-154; Massachusetts Gender Bias Task Force Report, supra
note 170, at 93 (64% of public defenders and district attorneys report sentences in domestic violence cases lower than other serious crime
cases).

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Finally, many judges find it frustrating to deal with pro se litigants. Because the vast majority of domestic violence petitioners appear without
counsel, this problem is pervasive. Examples of this problem include a California judge who denied a petition in which a woman had stated that
the batterer hit her "upside the head," claiming that he did not understand the allegation. n230 A Connecticut judge is reported to yell at pro se
battered women for filing their court papers incorrectly and to actually throw the papers at them. n231

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n230. California Gender Bias Task Force Report, supra note 170, at tab 6, 20.

n231. See Connecticut Gender Bias Task Force Report, supra note 214, at 104.

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Judicial hostility toward domestic violence petitioners is particularly disturbing given the positive impact a judge can have. Studies have shown
that judicial warnings or lectures to defendants about the inappropriateness and seriousness of their violent behavior can improve some
defendants' future conduct. n232 And victims report that receiving official affirmation from judges that they do not deserve to be abused helps
them gain the strength to separate from their batterers. n233

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n232. See National Institute of Justice, Non-Stranger Violence: The Criminal Court's Response 96 (1983) [hereinafter NIJ: Non-Stranger
Violence]; U.S. Dep't of Justice, Attorney General's Task Force on Family Violence: Final Report 36 (1984) [hereinafter AG's Final Report].

n233. See NIJ: Non-Stranger Violence, supra note 232, at 96.

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