Cindy S. Lederman and Neena M. Malik, Family Violence: A Report on
the State of the Research, 73 Fla. B. J. 58 (1999).
Every day family law judges make many important
and difficult decisions that affect the lives of the people who appear before
them in family violence related cases. These decisions are often made quickly
based on the evidence presented in court, and on the applicable law, but are
often made without the benefit of research-based knowledge about family violence.
Just as important decisions about people's lives are made daily in courts
dealing with family violence cases, the academic community also is engaged
daily in the study of human behavior and interventions designed to modify
behavior relative to families involved in family violence. This academic work
can and should be used to inform the decisions of the court's dealing with
family violence, as its use has only enhanced the exercise of therapeutic
jurisprudence to date, and as the body of research evolves, it will continue
to point the way to other effective solutions.
A tremendous gap exists between those who conduct
research and the judges and lawyers who deal directly with family violence.
Family violence justice stakeholders often are not exposed to research findings
in their decisionmaking and rarely understand the necessity of contributing
to the body of evaluative research. The crisis-driven nature of the justice
system primarily results in a form of decisionmaking that results in after-the-fact
and isolated interventions, rather than comprehensive approaches or broad-based
initiatives.
If those of us involved in the daily decision-making
process in courts dealing with family violence would use social science to
inform our work, the effectiveness of our decisions would only be enhanced.
Social science research may be particularly helpful in assisting the courts
with decisionmaking relative to family violence, as the social dynamics these
courts are resolving are exceptionally complex and only when large samples
of cases are reviewed do positive solutions reveal themselves. This article
is an effort to summarize the current state of the research relative to legal
interventions in the area of family violence, and make that knowledge accessible
to judges and lawyers who can then integrate that knowledge into their policymaking
and decisionmaking.
In August of 1994, the National Research Council
(NRC), a branch of the National Academy of Sciences, [FN1] convened a committee
of 21 family violence experts, the Committee on the Assessment of Family Violence
Interventions ("the committee"), to engage in a three-year effort
to synthesize the existing body of research knowledge regarding the development,
implementation, and effectiveness of interventions designed to treat and prevent
family violence. Ultimately, in 1998, the committee's work resulted in publication
of a comprehensive report on the existing state of research-based knowledge
on family violence entitled Violence in Families: Assessing Prevention and
Treatment Programs [FN2] (hereinafter Violence in Families). This report,
though rarely used by those in the justice system, provides important knowledge
about the field of family violence that can and should inform the work of
lawyers and judges dealing with cases involving domestic violence and child
maltreatment.
The committee defined family violence as adult
domestic violence, child abuse or neglect (hereinafter "maltreatment"),
and elder abuse, and found that the rates of family violence in this country
constitute a serious social problem. It is widely believed that approximately
three million children each year are reported victims of child maltreatment,
and that as many as almost three million adults are victims of violence or
abuse from family members. [FN3] In the juvenile justice system,
*59 family violence issues are addressed in court every day. Given the
potential lethality involved in these cases, it is incumbent upon those of
us in the legal system to engage in an interdisciplinary dialogue with researchers
to develop interventions that will more effectively curb the violence and
meet the needs of the affected children and families.
The role of social science and the work of
the juvenile and family courts go hand in hand. Though data are limited and
research is difficult to conduct in the court, the science available and summarized
in Violence in Families has yielded important information in the areas of
child maltreatment interventions, including mandatory reporting; court-mandated
treatment of sex offenders and other child maltreatment offenders; and alternatives
to the live testimony of children in court. Likewise, Violence in Families
has resulted in important interventions in the area of adult family violence,
including civil orders for protection, arrest policies, batterers treatment,
and mandatory prosecution policies. These results are summarized in greater
detail below with the goal of educating courts such that implementation of
the results can be achieved.
Child
Abuse or Neglect Interventions
Mandatory reporting. With regard to child abuse
or neglect, the NRC found that in the 1960s, nearly every state adopted mandatory
reporting laws for intentional child injuries when detected by a physician.
Since the inception of the mandatory reporting requirement, a 330 percent
increase in the number of cases reported has resulted. Thirty-seven percent
of the cases reported are ultimately substantiated. The NRC has found that
these reporting laws have had the positive result of bringing more maltreated
children to the attention of the courts such that they can receive protection.
The NRC, however, also noted that these mandatory
reporting requirements were universally adopted without any scientific evidence
of their effectiveness. To date, no reliable study has yet demonstrated the
positive or negative effects of these reporting laws on the health and well-being
of children at risk for maltreatment. While the committee noted the obvious
positive objectives of the mandatory reporting requirement, it listed a number
of common concerns about unintended adverse impacts of the law, including:
1) Discouraging custodians who do not want
involvement with the legal system from seeking social services and health
care for themselves and their children;
2) Justice system retaliation for disclosure
of maltreatment;
3) Creating the expectation of social services
and protection that cannot be met;
4) The flooding of the social service system
with relatively minor cases of child maltreatment;
5) Interfering with provider-client relationships
and rapport; and
6) Encouraging greater surveillance bias, including
class or ethnic bias in reporting, because of disproportionate reporting in
low income and minority communities who rely on public service for care and
whose providers are more likely to file reports.
The committee noted that some critics argue
that mandatory reporting requirements have weakened the protection of children,
not only because of the reasons listed above, but also because reporting diverts
administrative resources away from social services for children and families
in serious trouble in favor of investigation of minor cases.
Consequently, in the juvenile and family court
system, we must be aware that many of the cases that are presented in court
will be relatively minor and will need less attention. The result should be
coordination and the creation of guidelines for those in the child protection
field who are flooded with reports through the child abuse hotlines and other
sources of the types of cases that warrant judicial intervention.
Mandated offender treatment. Once cases involving
child abuse or neglect appear in court, the court can order parents to complete
treatment as a condition of regaining custody of their children. The committee
noted the concern that mandating treatment, rather than encouraging voluntary
treatment, reduces the effectiveness of such treatment; the committee found,
however, that the data on this issue do not support this criticism. Studies
reviewed by the committee indicated that court-ordered parents were more likely
to complete treatment than parents voluntarily receiving treatment. Consequently,
the committee found that mandating treatment does not increase resistance
to participation. In fact, the research suggests that court oversight of treatment
referrals facilitates completion for offenders who would be otherwise unlikely
to participate voluntarily. Thus, courts should not hesitate to mandate treatment
in cases involving child abuse or neglect.
In contrast, the committee found that treatment
programs involving child sex offenders did not reduce recidivism. Regardless,
such programs have substantially increased in number over the past decade.
Most of these programs are outpatient programs using a cognitive-behavioral
approach to treatment. The cognitive-behavioral approach attempts to change
an offender's beliefs about the permissibility of sexual behavior with children
and attempts to place negative consequences for offending and positive consequences
for resisting offending. Given the committee's findings, however, family violence
courts should consider using more active criminal sanctions against such child
sex offenders. The committee found that when child sex treatment includes
multiple components, such as social skills training and group therapy, promising
results were most likely. Consequently, the committee's findings suggest that
courts need to utilize criminal sanctions to a greater extent, and to utilize
more comprehensive approaches to child sex offender treatment, to best decrease
this form of criminal behavior.
Prosecution. Child maltreatment offenders are
rarely prosecuted. In *60 fact,
the committee noted that a debate exists as to whether perpetrators of child
abuse should be prosecuted at all, given the familial nature of the crime.
Those opposed to prosecution tend to believe that treatment is preferable
to prosecution and that criminal prosecution interferes in family matters
and is destructive to the family. Those in favor of prosecution cite the deterrent
effect, public policy arguments concerning the need to enforce the law and
to protect the public, and the ability to coerce offenders into treatment.
The committee found, however, that a comprehensive scientific evaluation of
prosecution has yet to be undertaken. The committee found that some data support
the fact that coercing offenders into treatment can be effective.
Children's testimony. Whether we are working
toward prosecution or civil court actions, often we need to rely on the words
of children to help guide our actions in court. The committee noted that in
spite of data to the contrary, children typically have not been considered
believable witnesses in court. Although most of the research has been conducted
in laboratory settings, not in courtrooms, the committee found that the data
are consistent that children appear to be no more likely to lie than adults.
In fact, the research suggests that children often recall traumatic events
vividly.
The committee found that the impact of testifying
on children is individualized. For some children testifying in a courtroom
can be beneficial, while for other children it can be traumatic. The research
contains child development literature which should be used to determine whether
a child should testify in court given that some children may be helped and
some harmed by giving such testimony. The determination of whether the child
should testify should be distinct from the credibility of the child's testimony.
Rather, the court should simply utilize the available evidentiary [FN4] forms
in determining what is in the best interests of the child in presenting the
child's testimony to the trier of fact.
Domestic
Violence Interventions
Twenty years ago, legal institutions responded
with ambivalence to domestic violence. Arrests were not made; batterers were
rarely prosecuted; and judges dismissed the cases summarily at the request
of the victim without further inquiry. Intervention by the criminal justice
system was not thought to be warranted in cases that were considered private
family matters. The law was interpreted to almost require that the battery
be committed in the presence of a police officer before an arrest could be
made.
By 1980, 47 states had enacted family violence
legislation which created protection for victims through domestic violence
protection orders and empowering police to make arrests without warrants.
Civil orders of protection. Every state now
has a law that creates civil orders of protection (CPOs) for domestic violence
cases. Also known as restraining orders, these victiminitiated legal interventions
are issued after court hearings in which the victim proves by a preponderance
of the evidence that he or she is in reasonable fear of imminent danger from
the respondent as a result of past acts of violence or threats of violence.
The judge in most states has the power to do the following:
1) Remove the respondent from the parties'
home;
2) Require the respondent to pay child support;
3) Prohibit the respondent from having direct
or indirect interaction with the victim;
4) Grant temporary custody of the children
to the victim;
5) Require the respondent to attend counseling;
6) Remove guns from the premises; and
7) Determine conditions of visitation with
the children.
Although there are no scientific data evaluating
the effectiveness of CPOs in reducing domestic violence, we do know from victim
reports that when enforced, they play a role in providing security and building
self-esteem for the victims. One of the most important roles the court can
play in evaluating the effectiveness of orders of protection is working with
researchers to evaluate CPOs in conjunction with other law enforcement strategies.
A number of questions remain to be answered, including how well CPOs work
when combined or compared with other law enforcement strategies.
Arrest policies. The most scientifically robust
findings in the area of family violence interventions are on arrest policies
for domestic violence. This intervention clearly is the best-studied in the
family violence domain. Among the best studies in this area is the Minneapolis
Domestic Violence Experiment research by L.W. Sherman and R.A. Berk, in which
the specific deterrent effects of arrest for domestic violence were documented.
[FN5] In this study, the intervention made by the responding police officer
was randomly assigned to one of the three possible treatments: 1) arrest of
the suspect; 2) ordering one of the parties out of the residence; or 3) advising
the couple. [FN6] Findings in this study were that the prevalence of subsequent
offending was reduced by nearly 50 percent when the suspect was arrested.
This study resulted in a substantial change in arrest policies and procedures
in domestic violence cases. In response, pro arrest policies were instituted
across the country.
Replications of the Minnesota experiment *61 were conducted in five jurisdictions
with a design that intentionally included similar features to the Minnesota
experiment (employed in misdemeanor cases; random assignment of interventions;
and the use of victim and police reports as measures of outcome). An interesting
result of the replication experiments was that arrest appeared effective only
with employed offenders, but not with unemployed offenders. Though data are
mixed and indicate that arrest may not always work, arrest still appears to
be an important intervention. In addition to the public perception of the
value of arrest, it may have an important effect on certain kinds of people.
Arrest and overnight incarceration pending a bond hearing appear to have deterred
some batterers through a strong sense of social control. The data on batterers
indicate that arrest may be a very important deterrent to some who believe
they will not be caught or punished. [FN7] In fact, some research exists that
the continued threat of legal sanctions may have a stronger deterrent effect
than the actual imposition of the sanction through the arrest process, especially
in cases where the offender is no longer at the scene when the police arrive.
In designing outcome measures for future research,
we must go beyond the standard study of recidivism to include the impact on
the victim and the interactions between the victim and offender, the impact
of arrest on others in the household (such as the children), and the community
effect, as well as the cost and unintended consequences of arrest policies.
The research in this area reminds us how important the voice of the victim
is in designing appropriate legal sanctions in domestic violence cases.
Mandated batterers treatment. Mandating treatment
for batterers as a part of a sentence of conviction or as pretrial diversion
for domestic violence is increasingly common in this country. In fact, several
states have mandated batterers treatment for all convicted batterers, despite
the fact that there is little understanding of the need to match the batterer's
needs and profile to specific types of treatment. The criminal justice response
to batterers treatment is often "one size fits all," though there
is growing evidence that there is significant variability in the violent behavior
of and thus the treatment required for those who perpetrate domestic violence.
[FN8]
We do not know whether treatment for batterers
is effective. The limited experimental or quasi-experimental evidence to evaluate
the effectiveness of batterer interventions is inconclusive, with some studies
indicating reductions in recidivism and others showing no effects. Most studies
have small sample sizes, and variations exist in the way recidivism is measured,
with some studies using police data, and others using interviews of offenders
who are likely to underestimate the amount and severity of violence.
Those studies that have been conducted, in
addition to demonstrating mixed results regarding the reduction of violence,
show attrition rates as high as 25 to 37 percent for court-mandated offenders.
This raises a significant concern regarding the failure of the criminal justice
system to hold the offender accountable for nonattendance, particularly when
the safety of the victim can be compromised by a false sense of security based
on the imposition of mandatory treatment, followed by weak and inconsistent
sanctions for noncompliance by batterers. Many states have legislated minimal
criteria for standard program types, lengths, and qualifications of treatment
providers. Limited empirical evidence exists to guide this standard setting.
It is, therefore, important for courts to design individual sentences based
on the specifics of each case, which will necessitate the modification and
individualization of treatment programs. In addition, when treatment is ordered,
courts must monitor treatment compliance and hold the noncompliant offender
accountable with criminal sanctions.
Prosecution. Similar to the lack of studies
on criminal prosecution of child maltreatment, few studies have documented
the effects of prosecution on spouse or partner assault. There have been,
however, studies focusing on prosecutorial decision making and the process
of choosing cases for filing. The only study that met the committee's inclusion
criteria was the Indianapolis Domestic Violence Prosecution Experiment researched
by D.A. Ford and M.J. Regoli. [FN9] The research consists of 678 cases which
were randomly assigned prosecution goals: 1) diversion with counseling; 2)
probation with counseling; or 3) other interventions such as fines, probation,
or jail. No difference in repeat violence was found. Victims who were permitted
to drop charges but did not do so were less likely to experience revictimization
within six months after the case was closed. This study did not include serious
felony cases. This study underscores the necessity to support and encourage
victims in the prosecution of their batterers.
Conclusion
The research compiled by the committee should
be an important resource for lawyers and judges who handle family violence
cases. For decades, criminal justice researchers and social scientists have
been studying the causes and consequences of family violence and the development,
implementation, and effectiveness of interventions designed to treat and prevent
family *62 violence. This knowledge
is rarely available to those of us who work every day in the courtroom, laboring
over these difficult cases. It is imperative that we understand and incorporate
this research in our daily decisionmaking if we are to engage in effective
sentences and intervention efforts.
Legal interventions can save lives, protect
victims, and change behavior. Such interventions constitute a critical institutional
response to a serious social problem that has been recognized as a significant
public health threat. Research indicates that mandatory arrests by police
and court granted restraining orders are among the interventions taken for
the protection of victims. Likewise, court mandated batterers intervention
for domestic violence offenders and case plans for child maltreatment offenders
are often the only interventions that take place for family violence offenders.
The research shows that there are many more questions to be answered in order
to improve our institutional response to family violence and ensure that the
quality of justice is constant. While family violence cases are the most difficult,
complex, and frustrating cases in the court today, knowledge of the law alone
is not enough to ensure that what we are doing is the most effective intervention
in the lives of families victimized by violence. Without the benefit of research
based knowledge, the justice system risks fashioning overly simplistic solutions
to extremely complex dynamics.
[FNa1].
Judge Cindy S. Lederman was a member of the Committee on the Assessment of
Family Violence Interventions of the National Research Council and Institute
of Medicine. She is the administrative judge of Miami-Dade's juvenile court.
Judge Lederman is a member of the Board on Children, Youth and Families of
the National Research Council and Institute of Medicine, a faculty member
of the National Judicial College, and a member of the House of Delegates of
the American Bar Association.
[FNaa1].
Neena M. Malik earned a B.A. in psychology from Yale University and a Ph.D.
in child clinical psychology from the University of Denver. Dr. Malik is the
director of the dependency court intervention program for family violence,
a grant-funded project in the Miami-Dade juvenile court, and she is an adjunct
research assistant professor in the department of psychology at the University
of Miami.
This column is submitted on behalf of the Family
Law Section, Ky M. Koch, chair, and Mark A. Sessums, editor.
[FN1].
The National Academy of Sciences was originally created by Congress during
Abraham Lincoln's presidency to advise the federal government on scientific
matters. The National Academy of Sciences' first act of scientific assistance
was to advise President Lincoln on making operable compasses on iron ships.
To this day, the National Academy of Sciences continues to advise the President
and Congress on important scientific matters.
[FN2].
This publication is available from the National Academy Press.
[FN3].
M.A. STRAUS, M.A. & R.J. GELLES, PHYSICAL VIOLENCE IN AMERICAN FAMILIES:
RISK FACTORS AND ADAPTATION TO VIOLENCE IN 8,145 FAMILIES 95 (1990).
[FN4].
Modifications in the rules of evidence now create hearsay exceptions for child
testimony to permit the use of videotaping or closed circuit television to
present the testimony without the child's being required to testimony "live"
in court. See Fla. Stat. §90.803(23).
[FN5].
49 AMERICAN SOCIOLOGICAL REVIEW 261 (1984).
[FN6].
Random assignment is one of the most scientifically appropriate methods of
testing intervention as it places individuals in groupswithout deciding a
priori whether a certain intervention might work better than others. In other
words, random assignment ensures that no one group of offenders will get one
intervention over others.
[FN7].
A. Holtzworth Munroe & G.L. Stuart, Typologies of Male Batterers: Three
Subtypes and the Differences Among Them, 116 PSYCHOL. BULL. 476 (1994).
[FN8].
Id.
[FN9].
Indianapolis domestic violence prosecution experiment, Final Grant Report
to National Institute of Justice (1993).