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).