Showing posts with label Practices. Show all posts
Showing posts with label Practices. Show all posts

Thursday, October 27, 2011

Changing Abusers’ Behavior: What Works What Doesn’t



By Barry Goldstein

Introduction

A few years ago I attended a national conference for and about batterer programs. One of my colleagues aptly referred to it as a marketing conference for the batterer program industry. I am sure there were many people at the conference that sincerely sought to reduce domestic violence and believed their programs could help accomplish this. Nevertheless I was appalled at practices that undermined the safety of women partnered with abusive men and frequent inaccurate claims that their programs could change men’s behavior and make it safe for women to live with them.

The modern movement to end domestic violence began in the mid to late 1970s and helped make men’s violence against women a public issue. This focused attention on the question of how to stop men in heterosexual relationships from abusing their partners. At the time there was little research available to help policy makers and most of the decisions on how to respond to domestic violence were made by people who did not understand domestic violence dynamics. This led to attempts to promote partner safety through ineffective approaches that continue to the present.

One of the fundamental questions was whether to respond by changing individuals one at a time or to promote societal changes. The primary response has been to focus on the individual such as by creating shelters and counseling for survivors and batterer programs and forms of treatment for abusers. This has undermined recognition of the need to make fundamental changes to the status quo by creating an appearance that society is engaged in an effective response to domestic violence. Ironically the present response has resulted in a substantial reduction in the number of men killed by their heterosexual partners, but only a small decrease in the number of women murdered by their abusers.

Common Practices Providing Little Protection for Women

Society has adopted many flawed practices in responding to domestic violence and failed to use critical thinking in understanding what strategies are likely to work. Large sums of money have been wasted repeating studies about the effectiveness of batterer programs and other unsuccessful approaches. These are based on a lot of unexamined assumptions. Repeatedly we have seen attempts to measure the success of a program based on re-arrest rates without any basis to assume the lack of a new arrest makes it likely he has changed his behavior. New and additional studies are piled on earlier flawed studies based on false assumptions like this. Too often there is a financial incentive to claim practices and approaches change men’s behavior. This results in a lot of misleading claims and then further research based on the earlier flawed studies.

1. Mental Health Treatment: Many people including abusive men can benefit from a variety of forms of therapy. A batterer could have a mental or emotional illness in addition to his abusive behavior. With extremely rare exceptions his mental health issues are not the cause of his domestic violence tactics and resolving them will not make it safe for a woman to live with him. Batterers sometimes like to seek therapy as a way to avoid accountability for his actions and create a false sense that he is likely to change. A full understanding of domestic violence dynamics is critical to responding to intimate partner violence. The cause of his abuse is his belief system and sense of entitlement. This is not something changed with therapy. Too often mental health professionals with little or no expertise in domestic violence and overconfidence in their therapeutic skills encourage the belief that they can change his behavior. There is no valid research to support these claims.

The custody court system made the mistake of treating mental health professionals as if they were experts in domestic violence. This was based upon the popular assumption when domestic violence first became a public issue that domestic violence was caused by mental health problems, substance abuse and the behavior of the victim. We now know these assumptions were wrong, but the custody courts continue to rely on unqualified mental health professionals for domestic violence cases and the result has been frequent mistakes that place children in jeopardy. One of the big risks is that partners and judges will believe his therapy reduces the risk he poses to his partner. This can lead to bad decisions that place his partner and any children in danger.

2. Substance Abuse: Long before the start of the modern movement to prevent domestic violence there was a widespread belief that alcohol or drug abuse was the cause of the batterer’s assault. Many unqualified professionals continue to believe this even today. Often he would come home after drinking too much and severely assault her. Accordingly the excess drinking was assumed to be the cause of his assault. The use of drugs or alcohol reduces inhibitions so that when he assaults her while under the influence his assault is often much worse than at other times and certainly more memorable. One of the main reasons the Women’s Christian Temperance Movement lobbied for prohibition was their belief that it would lead to less wife beatings.

An abusive man with a substance abuse problem would certainly benefit from treatment or other programs to end his abuse of alcohol or drugs. It is completely appropriate for courts to mandate such programs in response to a domestic violence crime. The court and his partner need to understand, however that his substance abuse did not cause his partner abuse and if he successfully completes a program to deal with his addiction, this would not resolve his domestic violence issues.

A closer look at his behavior will demonstrate he has a belief system and sense
of entitlement that he uses to justify controlling and coercive behavior towards his partner. He engages in these tactics even when he is sober. Abusive men often use their substance abuse problem as an abuse excuse while trying to avoid accountability for their mistreatment of their partners. Significantly, many men with substance abuse problems never abuse their partners while under the influence because it is not a behavior they would consider. This is why we do not see people commit cannibalism while under the influence. It is a behavior they would never consider while sober.

3. Anger Management: Some courts continue to send batterers to anger management classes although there is no valid research to support this practice. Anger management is a legitimate problem for some people and such classes can be helpful. Someone with an anger management problem cannot control their anger towards anyone. They are a danger to assault their boss, the bank teller or police officer. Domestic violence perpetrators have complete control of their anger and use it to help coerce their partner. They control their anger, often after far more provocation when interacting with others because they know there would be serious consequences if they failed to do so. They abuse their partners because there is a long history of husbands abusing their wives with no accountability consequences to him.

In the New York Model Batterer Program that I instruct in the men will point out that they don’t have an emotional involvement with others who they don’t assault, but cannot control themselves when their partner “pushes their buttons.” What happens if she does something that he defines as improper when they are out in public? He may be angry, but he controls his anger and waits until they are home and there are no witnesses before abusing her. In other words he controlled his anger as long as he knew there would be consequences if he hurt her in front of others.

4. They Need Tools: In one of the classes I taught we started with a check in and then one of the men asked where another man was and the answer shocked everyone. He was in jail accused of murdering his wife. The men and instructors were genuinely upset about this tragedy and the men repeatedly asked why we did not provide them with tools so they would know how to respond if they became upset. The instructors did not have an answer so we promised to discuss it in our weekly training and respond the following week. During the discussion we came to understand that every man in the class already knew how to behave appropriately if it was important to him. He used these “tools” in his interaction with others and used them with his partner at the start of their relationship. In fact if he had not initially treated her respectfully there would never have been a relationship. In other words the men already had the tools to treat their partners properly. If we used the class to teach tools it would be colluding with the men. If they were really unable to avoid abusing their partners it would be unfair to punish them for something they could not help. In fact they know how to behave and do so throughout their lives even when something happens that makes them angry. Therefore if they mistreat their partners they are responsible and should be held accountable.

5. Batterer Programs: Most people probably believe the purpose of batterer programs is to change offenders’ behavior. The government has spent a fortune trying to determine the “effectiveness” of the many programs. What would it mean to say a program is successful or effective? This is often measured by recidivism or in other words how often are men who complete the program later arrested for a domestic violence crime? The problem is that this measure actually tells us very little. Domestic violence crimes have the lowest rate of reporting so many men who continue to assault their partner are never again arrested. The failure of the court’s response and abusers’ practice of blaming their partners for their arrest often discourages women from involving the police or the courts again. Accordingly the lack of a new arrest does not mean he never committed another domestic violence crime.

Furthermore, most acts of domestic violence are not illegal. The abuser might continue to believe he is entitled to use domestic violence tactics to coerce and control his partner, but limit himself to legal tactics so he does not face any consequences for his actions. How could we measure if he is doing this? Some programs and research seek to measure it by asking the offenders if they stopped abusing their partners. For obvious reasons their answers are suspect. Some programs seek to obtain more honest answers by asking their partners. I believe this is unethical because it places his partner at risk. If she reports that he is continuing to abuse her he is likely to punish her or hurt her for revealing his continued abuse and if she lies in order to protect herself the program assumes their practices have been successful. Accordingly when programs make claims about their success rate there is good reason to doubt the validity of their findings.

A better question to ask in evaluating the success of batterer programs would be what happens to a man who fails to complete the program. A study of batterer programs across the country found that only around half of the time do men who fail to comply with a court order face further consequences. This is important because it sends an important message about how seriously the courts and in turn society takes domestic violence. Consider what happens if someone gets a parking ticket and fails to pay the fine. It may take a while, but eventually the driver will face increased fines, an inability to obtain a new registration and drivers’ license and in some cases might find a boot on the car. In other words society takes parking violations seriously. It is a sad commentary on community values if they place more emphasis in enforcing parking violations that the brutalization of women by their intimate partners.

Practices that Would Provide Protection for Women

It is not just that the common practices are not helpful in ending men’s violence against women. They create the illusion that something useful is being done and drain resources from practices and approaches that would provide better protection for women partnered with abusive men. We have the ability in the short term to drastically reduce at least domestic violence crimes and if we adopt best practices would also start to reduce other forms of domestic violence. Here are some of the approaches that could take society from the appearance of responding to domestic violence to actually making women safer.

1. Accountability: Men are far more likely to assault and abuse their intimate partners than anyone else in part because they do not expect to suffer any consequences for their actions. Holding men accountable for their abusive behavior sends a message that society no longer will tolerate his abuse. He will stop his abuse or at least criminal abuse because he does not wish to risk jail or other real punishment. The success of the Quincy Model and other communities that enjoyed a drastic reduction in domestic violence crime and particularly homicide used strict enforcement of criminal laws, protective orders and probation limitations as an effective way to prevent domestic violence crimes.

Many men grew up in homes where they saw their fathers abuse their mothers and suffered no consequences for doing so. Many of these boys grew up and decided not to repeat their father’s behavior. Others took the message from the lack of consequences that such behavior is acceptable in our society. A jail term or other serious penalty is needed to reverse the message and discourage men from repeating their criminal acts.

2. Monitoring: The only responses to domestic violence that have been shown to create a long-term change in men’s behavior towards their partners are accountability and monitoring. Probation departments that have used strict and aggressive monitoring of domestic violence offenders have been shown to be successful in discouraging men from repeat offenses. In the Quincy Model, the probation department closely monitored their clients which contributed to a reduction in domestic violence crime. When men on probation were charged with a new crime they would quickly charge him with violating probation. This permitted them to jail him immediately instead of waiting for his case to go to trial. This provided safety for women as their partners would be out of circulation and sent the message that Quincy was taking domestic violence seriously.

3. Making it Easier for Women to Leave: The modern movement to end domestic violence has resulted in many laws and practices designed to help women partnered with abusive men. As a result of these reforms it is easier for women to obtain divorce, protective orders, shelter, financial support, advocacy, criminal prosecution and community support. Significantly, each of these improvements has made it easier for women to leave. It is no coincidence that practices that made it easier for women to leave also resulted in a reduction in domestic violence crime and particularly domestic violence homicide. More recently abusers have learned to use the custody courts to go after the children. The frequent mistakes caused by inadequately trained court professionals have resulted in frequent awards of custody to abusive fathers. Many mothers have responded by staying with their abusers in order to be close to their children in order to protect them. The recent increase in domestic violence homicides after many years of declines are likely caused by the widespread failures of our custody courts. They have made it harder for battered mothers to leave abusive fathers.

The problems caused by making it harder for women to leave their abusers are illustrated by a series of preventable tragedies in Dutchess County, New York. For many years the custody courts in Dutchess have been strongly influenced by “fathers’ rights” groups. The courts have routinely minimized the significance of domestic violence complaints and often failed to recognize the pattern of coercive and controlling behavior because of the use of flawed practices and unqualified professionals. The result was frequent cases in which the abusive father won custody and safe, protective mothers were taken out of their children’s lives. As a result of these and other practices that created ineffective responses to domestic violence the community suffered six domestic violence homicide incidents in little over a year that resulted in ten deaths including the loss of five women and a police officer.

The county legislature asked a citizens committee made up of professionals in the relevant professions and disciplines to investigate the county’s response to domestic violence and make suggestions for improvements. The committee found that battered women and particularly protective mothers were refusing to seek court assistance because the courts were so frequently siding with abusers and in many cases helping the abusers maintain their control over them. In other words the flawed practices by the courts in response to domestic violence led more women to stay with their abusers and this was an important factor in encouraging the tragedies men committed in Dutchess County.

In contrast, the Quincy Model included practices and approaches to help make it easier for women partnered with abusers to leave. They set up special days and times for courts to hear domestic violence cases and took these cases out of order on other days. In other words they made these cases a priority. Police, prosecutors, court clerks and advocates made it easier for women to seek assistance and understand the court procedures. Strict enforcement of criminal laws, restraining orders and probation conditions supported the women and made it easier to leave. These practices that helped women escape from their abusers resulted in a significant reduction of domestic violence crimes and especially homicides.

4. Stop Forcing Children to Live with Abusers: A few years ago I wrote an article discussing how we know the custody court system is frequently sending children to live with abusers. I cited examples of ten types of research and information that established the frequent mistakes in domestic violence custody cases were causing courts to place children in danger. Since that article was printed many additional articles and studies have appeared that confirm my conclusions. The purpose of abusive fathers seeking custody, particularly fathers who had little involvement with the children during the relationship is to regain control over their partners or punish her for leaving. The custody courts have made these tactics successful and in doing so discouraged battered mothers from trying to leave their abuser. As discussed above, this has led to an increase in crimes including domestic violence homicide.

A study by the Leadership Council has established that every year at least 58,000 children are sent for custody or unprotected visitation with dangerous abusers. Although the first priority in deciding custody ought to be safety, the custody courts regularly use professionals and make decisions without knowledge of the kinds of abusive behaviors that demonstrate a higher risk of lethality or other risks, without any understanding of domestic violence dynamics or even how to recognize domestic violence. In other words the courts are giving themselves no chance to engage in the kind of investigation necessary to make an informed decision. Even worse when protective mothers or qualified professionals criticize their mistakes the courts respond in a defensive and retaliatory manner.

One of the fundamental problems is that court professionals have been taught that contested custody are “high conflict” cases. This leads them to look for mutual conflict and to pressure the parties to work together. The research demonstrates that a large majority of contested custody are domestic violence cases so mothers are being punished for not wanting to interact with their abusers. Most of these contested custody cases involve the worst of the worst abusers. Fathers who had little involvement with the children during the relationship but seek custody because they believe she had no right to leave. The courts use of flawed practices and failure to look to current scientific research about domestic violence leads them to help abusive fathers maintain power and control. Often the courts punish the mothers as the fathers request. This makes it harder for battered mothers to leave and undermined the laws and practices designed to prevent and discourage domestic violence.

5. Use Multi-Disciplinary Approach with Current Scientific Research: The book I co-edited with Mo Therese Hannah, DOMESTIC VIOLENCE, ABUSE and CHILD CUSTODY features a multi-disciplinary approach with chapters by the leading experts in the U. S. and Canada including judges, lawyers, psychiatrists, psychologists, sociologists, journalists and domestic violence advocates. We did this deliberately because this gives professionals access to all the current scientific research and encourages an open discussion. I have frequently seen custody court professionals limit themselves to information and training from people in their profession and so fail to be open to new information even if the face of frequent mistakes by the courts.

Best practices involve consultation between different disciplines and professions in order to create the most effective responses to domestic violence. Many communities have adopted practices where the child protective agency and domestic violence shelter work together to respond to possible domestic violence cases. They cross-train each other’s staff and when potential domestic violence cases are reported the caseworkers consult with domestic violence advocates and sometimes they go together to the homes. This has resulted in caseworkers better able to recognize domestic violence and formulate arrangements that work best for the children.

The psychology and psychiatry professions recommend that when someone is handling a case that involves subjects in which they are not experts they should consult with someone who is. Unfortunately these recommendations are aspirational so failure to use these best practices does not result in discipline. Repeatedly we see evaluators appointed by the court with little or no training in domestic violence fail to consult with a domestic violence expert. This is why such a high percentage of domestic violence custody cases result in arrangements harmful to children. Rita Smith, Executive Director of the National Coalition Against Domestic Violence was right when she wrote in the afterward of our book that once the book is published court professionals who continue to use these outdated and discredited practices should be understood to be committing malpractice.

6. Rely on Genuine Experts: Domestic violence professionals are part of the only profession that works full time on domestic violence issues. Judges and other custody court professionals tend to minimize their value because the advocates often have less formal education than the unqualified evaluators and other professionals relied on by the courts, are seen as partisan because “they always oppose domestic violence,” and the courts are not used to thinking of domestic violence as having a specialized body of knowledge that requires expertise.

The custody courts turned to mental health professionals at a time when there was a widespread assumption that domestic violence was caused by mental illness, substance abuse or the behavior of the victim. At the time and until very recently the higher degrees the courts put such high value on were obtained with no training about domestic violence. Even now few of the evaluators and other professionals relied on by the courts have more than a few minutes of formal training in domestic violence and often a couple of hours at a workshop is the extent of their domestic violence training. Nevertheless these professionals continue to try to handle domestic violence cases without the assistance of experts because they don’t know what they don’t know.

In contrast, domestic violence advocates are provided extensive training in domestic violence before they start their work and regularly attend additional trainings. Indeed they are often the experts that provide trainings for professionals and others in the community (particularly those not involved in the custody court system). Perhaps the most important part of their job is assessing the dangers faced by their clients and helping to create a safety plan. The advocates understand domestic violence dynamics and how to recognize domestic violence. They are also familiar with current scientific research. In other words they have all the needed expertise that the professionals relied on by the courts are missing.

I have heard many judges express the view that domestic violence advocates are partisans, but this is based upon a lack of critical thinking. The policy of every state and every court is to work against domestic violence. Advocates do not support false allegations by mothers both because it is wrong and they make it harder for battered women to be believed. The advocates are best able to recognize domestic violence and safety risks and to suggest remedies to avoid harm to survivors and their children. According to the law this is exactly what the courts are supposed to be doing.

Judges, other court professionals and the public are not used to thinking of domestic violence as a subject for expertise. In part this is caused by the fact there was virtually no research available at the start of the modern movement to end men’s violence against women so the courts never got into the habit of seeking this information once it became available. Most people have had some experience with domestic violence as a victim, offender or knowing people who are. There is a tendency to reach general conclusions from the few cases they think they have knowledge of. If they are personally involved it may be hard to be objective and if they hear the story from someone else they likely heard only one side. Domestic violence advocates base their knowledge on personal experience with at least hundreds of cases and research based on thousands of cases. This helps them identify patterns which are so important in understanding domestic violence and particularly keeping the issues in context. This is one of the reasons advocates are so much more qualified to provide advice about domestic violence and their conclusions are so much more accurate than court professionals. We frequently see courts reach conclusions that are possible but extremely rare such as the belief the batterer suddenly stopped his abuse without any intervention. I often hear judges say they have to look at each case separately, but in doing so they miss the pattern. This is the kind of information they need and would receive if they were open to listening to domestic violence experts.

7. Work to End Sexism and all other Oppressions: One of the many problems in responding to domestic violence is that in sexist societies we are not responding to aberrational behavior but rather normal behavior. We often see journalists and court professionals confused by information that the alleged abuser is successful in other parts of his life and is known for good deeds and other positive behaviors that make it hard for untrained professionals to accept that the same man has brutalized his partner often over many years. Similarly we often see untrained professionals have difficulty believing domestic violence allegations against someone who is well dressed and well spoken.

Men do not commit domestic violence in a vacuum. Indeed the failure to view their behavior in context is a major impediment to understanding and recognizing domestic violence. Men’s behavior towards women takes place in the context of hundreds and thousands of years in which men were allowed and even encouraged to abuse and control their wives. In many of our lifetimes, domestic violence crimes that are now prosecuted were considered legal or at least treated as private matters for which the government was not expected to interfere. Wife rape was treated as legal behavior because men were considered to be entitled to sex from their wives.

We often see slumlords that mistreat their tenants and provide unsafe homes. If an angry tenant burned down the building no one would suggest that the bad behavior by the landlord excuses or justifies the act of arson, but we frequently hear abusive men or their attorneys justify his abuse because of something his partner did that made him angry and worse we hear judges and other court professionals take the explanation seriously. In one notorious case in which the abusive father admitted to calling the mother 20-25 times a day as late as 1 AM when he knew the mother and children were sleeping, the judge ruled he was justified because he was angry at the mother because he believed he missed some of the phone calls he was entitled to. Only in a sexist society would someone believe this explanation was worth making much less acted upon by a court of law.

The men in the batterer program I instruct often question why we spend so much time discussing other oppressions instead of focusing on domestic violence. I sometimes respond by discussing the exhibits at the King Center in Atlanta designed to honor the life and work of Dr. Martin Luther King. They have an exhibit about the continuation of his work today that features many activists from around the world. One of the people featured was the woman who started the domestic violence movement in Russia. Dr. King’s family understands that we cannot end one oppression like racism without ending all oppressions. In other words the work to end domestic violence and sexism helps support the work to end racism. Toward the end of Dr. King’s life he was preparing to lead a poor people’s demonstration because classism is another form of oppression.

A year before Dr. King’s death, the Supreme Court issued a landmark decision Loving v. Virginia that invalidated state laws denying the rights of blacks and whites to marry. At the time a majority of the public or certainly whites probably supported laws that prevented whites and blacks from marrying each other. The court recognized the fundamental violation of basic rights including equal protection and it is fair to say a large majority of the public would now oppose any restrictions. Just as racism was used to limit who could marry, the present issue of same sex marriage is opposed by many people based upon heterosexism. There was never a rational basis for either restriction of fundamental human rights and dignity and acceptance of same sex marriage appears to be increasing so that it will eventually be accepted like interracial marriage is today.

Those of us working to end domestic violence understand that sexism is the cause of domestic violence. Sexism encourages the belief that men are superior to women and entitled to unearned privileges including the right to control their intimate partner and make the major decisions in the relationship. The belief that women are less than men causes widespread harm to our society and robs us of much that women could contribute to our wealth, health and happiness because it undermines the ability of women to reach their potential.

8. Coordinated Community Response: Men in batterer programs often suggest that the best approach to domestic violence would be to “teach the children.” On the surface this seems like a good idea and certainly we want to reach children and provide them with a perspective about the importance for men to treat their partners respectfully. In the program we often start a discussion about where children get their ideas and beliefs. We quickly make an extensive list of sources that include friends, family, peers, religious institutions, the media, business and many others. The point is that if children received a good message in class but received the typical misinformation from the other sources their belief systems would not fundamentally change.

The present widespread beliefs that tolerate or encourage men’s abuse of their intimate partners comes from a long history of sexist practices and the constant reinforcement of misinformation from all the major institutions in society. This is why a coordinated community response is necessary so that positive messages are coming from each community to reinforce each other and make the prevention of domestic violence a high priority.

Each part of the community has a positive role to play to reinforce the message against domestic violence and to stop delivering messages that support men’s sense of entitlement and privilege. Thus the media needs to stop supporting the belief that the value of women has to do with their attractiveness or body parts or that they should be limited to “women’s roles.” They need to stop publishing and broadcasting stories about domestic violence crimes that actually sympathize with the offender and often invisibilize or blame the victim. The media particularly needs to expose the crisis in the custody court that has resulted in at least 58,000 children being sent for custody or unprotected visitation with dangerous abusers every year and the deaths of 175 children in a recent two year period caused by abusive fathers involved in contested custody.

Many religious institutions helped abusers and encouraged domestic violence by pressuring women to stay with her family despite the danger and her partner’s abuse. Quotations from holy books and documents were often misused to encourage women to stay. More modern and responsible clergy instead speak of the importance of peace and safety and treating partners respectfully. Many religious institutions now take on a strong role of working to discourage domestic violence and supporting survivors.

Unqualified mental health professionals often seek to treat abusers as if their mistreatment of their partners was caused by mental illness. Unethical therapists provide couple’s counseling despite the danger to women. Unscrupulous evaluators and other professionals have adopted practices supporting abusers in order to increase their income. This has contributed to the widespread failure of the courts to safeguard protective mothers and their children. Mental health professionals who work as part of a coordinated community response refuse to engage in such unethical practices but do provide support and assistance for women partnered with abusive men and their children.

For years the medical community treated the physical wounds without considering the cause based on the common belief that it was a private matter. Today they can make a record of her injuries so it can be used later when she is ready. They also make information and resources available to the survivors by making sure they have private conversations away from their partners.

Throughout this article I have discussed the role of criminal courts to hold abusive men accountable and make it easier for women to leave. The custody courts need to reform their practices so they can become part of the community response seeking to prevent domestic violence instead of frequently helping abusive men maintain control over their partners and punishing her for trying to leave. In all of these efforts the community should look to the domestic violence agencies for information, resources and leadership. Communities that have an active coordinated community response tend to have lower crime rates and more support for domestic violence survivors.

Conclusion

The media recently reported on a story in which a man walked into a beauty salon and murdered his ex-wife and several others. The stories emphasized what a nice man the murderer was and such a devoted father. His history of domestic violence and homicidal threats were ignored or barely mentioned. I wrote to one of the reporters complaining about the approach to the story and suggested they should have interviewed a domestic violence advocate or other expert. The reporter agreed this was a good idea and promised to do so. Journalists are not the only profession that routinely fails to know who the experts are regarding domestic violence or to seek their assistance when responding to possible domestic violence cases or incidents.

Part of the problem is the false assumption that mental health professionals are domestic violence experts. Some are, but not because of their degrees. Part of the problem was the lack of research and expertise at the start of the movement to end domestic violence when decisions needed to be made about the best ways to respond to domestic violence. The frustrating part is that we now have a specialized body of research that could inform other professionals and help them make better decisions but many factors are preventing the use of this expertise.

We know how to respond to domestic violence in a much more effective way. We have the ability to eliminate a large majority of domestic violence crimes and particularly homicides. We also know that children who witness domestic violence or are themselves directly abused are far more likely to commit crimes when they are older. In other words a substantial portion of crimes would be prevented if domestic violence crimes were significantly reduced. People impacted by domestic violence including the abusers, their partners, the children who witness his abuse and third parties who become victims of crimes committed by these children often never reach their potential as a result of society’s continued tolerance for domestic violence. Many of those impacted might just lead a normal life, pay taxes and contribute to society in a variety of ways. Some may have made substantial contributions to society developing new businesses or even industries, making health or other scientific discoveries to improve society. Some might be teachers who inspire students to do something remarkable. The possibilities are unlimited.

The health care impact of domestic violence tends to be drastically understated because we typically only consider the immediate expense to heal a wound. Stress is an important factor in causing and exasperating many common diseases and few things are more stressful than domestic violence. Domestic violence often creates the need for extensive mental health services for PTSD and other conditions caused by domestic violence. The crimes discussed earlier creates still further need for medical treatment.

A group of medical professionals recently calculated that the United States spends as much as $750 billion every year on health care related to domestic violence. We spend over a trillion dollars every year in expenses caused by crime. Obviously we would have plenty of crime even if domestic violence were greatly reduced but it is likely a couple hundred billion can be attributed to domestic violence. The lost potential is hard to calculate because we cannot know what might have been but it is reasonable to believe the cost in the United States is hundreds of billions of dollars annually. There are many other costs such as lost work days. To be practical not all of our losses to domestic violence can be expected to be recovered by the adoption of best practices, but hundreds of billions of dollars can be saved every year. This is in addition to the lives lost and the quality of the survivors’ lives.

This seems like an awful lot of money to throw away to justify past bad practices, help unqualified professionals make a good living helping abusers or to maintain the ability of abusive men to keep their unearned privileges. I believe we should start an honest discussion based on critical thinking about the costs of the present practices and our ability to do better. I believe an open discussion will lead to the needed reforms. Perhaps there are people that would like to share $500 billion this year and every year for the rest of our lives. Even better most women could lead their lives without experiencing domestic violence crimes.



Barry Goldstein is a nationally recognized domestic violence expert, speaker, writer and consultant. He is the co-editor with Mo Therese Hannah of DOMESTIC VIOLENCE, ABUSE and CHILD CUSTODY. Barry can be reached by email at their web site www.Domesticviolenceabuseandchildcustody.com

Tuesday, March 29, 2011

Enough of a Broken Custody Court System: What Would Work Better?



By Barry Goldstein


We have spent a lot of time discussing what is wrong with the custody court system particularly as it applies to domestic violence cases. This is understandable as there are so many horrendous cases in which flawed practices lead to outcomes that destroy children, undermine the reputation of the judicial system and create substantial harm to society. By now the research is overwhelming that the standard practices work poorly for children even as the custody court professionals fail to be open to the research now available. In recent years, academicians, government agencies and others have started to join protective mothers and domestic violence advocates in an understanding of the failure of the present system. We must go past mere complaints and offer solutions to reform the custody court system to be ready when those in authority are ready to listen. Accordingly I am writing this article to offer some ideas for the needed reforms. I hope this will start a discussion that will lead to a consensus on the types of reforms needed. While there will need to be a fundamental shift in attitudes to create significant reforms, I have tried to consider both what might be possible and what would work in creating my proposals.

1. Specialized Courts for Domestic Violence and Sexual Abuse Cases: This would include any cases where there are allegations or evidence of possible domestic violence or sexual abuse. Some judges and other court professionals believe it is not a domestic violence case until the allegations are proven. This is a mistake as the courts need domestic violence expertise to recognize whether or not the allegations are true. Specialized courts would have special training for the professionals and obtain expertise by responding constantly to these cases. Hopefully it would eliminate judges who don’t want to be hearing domestic violence or sexual abuse cases or have an obvious bias. This is not a panacea as it can be a disaster when the dv judge is hostile, but it seems to have a better chance. The benefit might also be limited in rural areas where there are not enough cases for specialization. Hopefully courts that can concentrate on these cases will learn best practices and to look at the patterns to help understand the cases.

2. First Priority Safety of Children, Second Priority Arrangements that give Children Best Chance to reach their Potential: Courts generally use some version of the best interests of the child standard. This sounds like it focuses on what works best for children which would be a good idea, but in practice it has created a very subjective analysis that has failed children. Some experts have suggested an approximation standard where the relative parenting time during the relationship would be replicated after the separation. This is what the parents thought worked best for the children before the disputes over the break-up clouded the process. Exceptions could be included to protect children from dangerous parents or for a serious change of circumstance such as a serious illness or substance abuse.

Most states have legislation or court decisions that create factors the courts should consider in deciding custody and visitation. The factors are usually relevant, but there is often no priority about what is most important so we often see court professionals focus on less important factors. I had one case where the judge was more concerned that the mother dressed the girls the same like twins although they were a year apart in age than the father’s abuse which included an incident observed by the children where the father took a knife to the mother’s throat. It is hard to believe that the children’s safety is not the most important priority far above all others, but it often is given less priority. Making this the priority would suggest a risk assessment rather than an evaluation that focuses on far less important and often pretend issues. Court professionals need to learn how to better recognize domestic violence and child abuse and to avoid minimizing these dangerous behaviors. A child’s safety cannot be reasonably compared with less important factors like a fancier home, higher income or negative statements about the other parent.

Similarly, the next priority should be arrangements that give the children the best chance to reach their potential. Children who are separated from their primary attachment figure are more likely to commit suicide, suffer depression or low self-esteem. It doesn’t make sense to take this risk except for something that can be shown to severely impact children. Research also shows that children witnessing domestic violence are more likely to engage in a wide range of harmful behavior. Allegations of alienation have not been shown to have such long-term harmful effects, but courts routinely focus on such less significant issues. The benefit of focusing on arrangements that help children reach their potential is the decisions would be more objective and based on valid scientific research.

In any decision, temporary or permanent in which a court diverges from the result that would have been created based upon the approximation standard, the court should put in writing:

  • The harm the decision will cause the child (such as primary attachment issues)
  • The benefits to the child the court believes it is creating by the decision 
  • Current scientific research that supports the expected benefits and supports the belief the benefits are more important to the well being of the child than the harm. 
  • The basis for the factual findings 
  • All significant evidence that would support a finding of a pattern of coercive control or intimidating behavior by the alleged abuser. 

These requirements would force judges to focus on the most important issues for children and to at least put in the record the evidence considered. If the judge failed to consider important evidence or minimized it, an appellate court could more easily overturn the decision. This in turn would discourage judges from making a lot of the standard mistakes we see today.

3. Early Hearing on Domestic Violence: Near the start of any custody case that includes allegations or information about domestic violence, and before any appointment of an GAL or other representative for the child or any evaluator or other mental health professional, the court will schedule a hearing limited to the question of whether or not one of the parties has engaged in a pattern of coercive, controlling or intimidating behavior towards the other party. If such a pattern is established by a preponderance of the evidence, and the non-abusive parent is a safe parent (i.e. not a drug addict, beat the kids, etc) the non-abusive or less abusive parent shall receive custody and the abusive parent shall initially receive supervised visitation. In order to resume unsupervised visitation, the abusive parent must complete a batterer program or other form of accountability (therapy, anger management, substance abuse and other similar programs that have not been shown to change abusers' behavior shall not satisfy this requirement). The abusive parent must acknowledge sole responsibility for the abuse, commit to never abusing the mother and any other intimate partner and stop all forms of domestic violence tactics. If the abusive parent satisfies these requirements the court shall have the authority to order the resumption of unsupervised visitation in whatever gradualized manner the court deems appropriate with the understanding that if the parent commits further acts of domestic violence, all visitation shall stop. If the court does not find sufficient proof of domestic violence, the case shall continue, but the court shall be open to additional evidence and events that together with the evidence initially submitted constitute sufficient evidence to support a finding of domestic violence. This idea might appeal to courts because it would save a lot of resources and court time. Cases that now take many months or years could be resolved in a few hours and children would quickly know which parent they will be living with. This would also save a substantial amount in legal and other fees thus limiting the common abuser tactic of bankrupting the mother with aggressive litigation tactics. Most important the hearing would focus on domestic violence without distraction from other less important issues that abusers often use as a tactic to avoid accountability. This should lead to better decisions.

4. Custody Decisions to rely on Valid, Current Scientific Research: Custody decisions shall be made based upon the use of valid and current scientific research. Any expert testimony must be based upon such current research. Experts qualifying to testify based upon mental health degrees and practice shall be limited to testimony concerning mental health issues. Mental health professionals shall not be used in custody cases in which no significant mental health issue exists. Degrees in medicine, psychology or social work shall not be taken as proof of expertise in domestic violence. In any cases in which there are allegations or evidence of domestic violence, no mental health professional shall testify as an expert without consulting a domestic violence advocate or other expert. In order to testify or provide other assistance to the court as a domestic violence expert, the individual must work as a domestic violence advocate or other similar position at a recognized domestic violence organization, be approved as an expert by such recognized domestic violence organization or convince the court of expertise based on training and experience in domestic violence issues and familiarity with current scientific research. Any court professional whose behavior, practices or professional approaches creates the appearance of minimizing the importance of domestic violence or opposing the state policy of seeking to end domestic violence may not be considered for any position that would be considered a neutral professional.

We see repeatedly that courts rely on mental health professionals who often have no expertise in domestic violence and either cite bogus research that has serious flaws or just use what they call their clinical experience (which means their personal beliefs and prejudices). If there is any basis for courts to hear testimony from experts it must be based on a familiarity with current scientific research such as is found in DOMESTIC VIOLENCE, ABUSE and CHILD CUSTODY. Part of the problem is that there was no research when custody courts initially adopted current practices and so they never got into the habit or expectation of looking for current research to inform their decisions. At the same time a cottage industry has developed where court professionals have realized the abusers have control of the family finances so the way to make money is to support approaches that favor abusers. This has led to articles by abuser rights mental health professionals that are not peer reviewed or based on any valid research.

5. Avoid Gender Biased Practices: Domestic violence and sexual abuse are gendered crimes. Repeated court-sponsored gender bias committees and other research have found widespread gender bias against women and particularly women litigants in child custody cases. The Constitution and our sense of fairness require men and women to be treated equally under similar circumstances, but failure to consider the fundamental differences between men and women is a violation of equal protection and fundamental fairness. Accordingly, practices that require mothers and fathers to be treated the same regardless of past parenting are not in the best interests of children and should not be permitted. Custody and visitation decisions should be made based upon the needs and well being of the children rather than the "rights" of the parents. Gender bias is often unconscious so judges must be open to concerns of mothers that they or other court professionals have engaged in gender bias and the use of gender biased approaches should require appeals courts to overturn the biased decisions.

6. Accountability: GALs, evaluators and other appointed court professionals shall not have immunity from civil lawsuits in connection with their work. If the evidence demonstrates the lawsuit was brought as part of a pattern of coercive, intimidating and controlling behavior towards their intimate partner, the defendant will be entitled to reimbursement of legal fees and expenses. Judges shall have a qualified immunity provided they avoid gross negligence, deliberate and unjustified retaliation or violation of a party's civil rights. Before a lawsuit can be brought against a judge, the party must obtain permission from a commission set up to review potential lawsuits against judges. A majority of the commission shall not be part of the legal profession. No one shall take part in review of a proposed lawsuit who has appeared or is likely to appear before the judge or has other professional connection that would create an appearance of bias. The commission or panel making the decision must include someone who is an expert in domestic violence.

In addition to other issues normally reviewed by judicial conduct committees, the committees shall investigate allegations of gender bias, retaliation for criticism of the judge or the court and a lack of understanding of domestic violence issues. Aside from other considerations, these issues will be investigated to determine if the judge needs retraining in these issues. A majority of the committees shall not be part of the legal profession and no one should participate in consideration of a complaint who has or might appear before the judge or have other potential conflicts. States shall provide sufficient funds so that significant issues raised in complaints shall be investigated. Lawyers shall not be subject to discipline for good faith criticism of the court or a judge and the court system shall take steps to avoid creating the appearance of retaliation for such criticism.

I know many mothers who have been cruelly mistreated by abusive judges would like to remove all immunity for judges. In practice this would not work well for protective mothers and there are legitimate justifications for judicial immunity. If all immunity was eliminated, the abusers would be the ones filing lawsuits because they have the resources and judges would be afraid to do the right thing. We need to create meaningful accountability for court professionals without interfering with legitimate protections. I remember reading an article by a psychologist in which he pointed to the low rate of findings against evaluators in complaints by litigants and concluded it proved the complaints were mostly frivolous. He never considered that psychologists are judging themselves and have a strong bias against these complaints. It really demonstrates why a majority of those reviewing complaints against any of the professionals cannot be from the profession being reviewed.

7. Economic Abuse: Custody courts shall take steps to prevent the outcome of custody cases to be decided by the relative resources of the parties. Courts shall level the playing field where one party has control of most of the family resources by ordering the wealthier parent to contribute to the other parent's legal expenses. In cases in which a pattern of coercive, intimidating and controlling tactics is established, the abusive parent shall be responsible for all expenses made necessary by their abuse. Courts shall consider economic abuse in considering allegations of domestic violence.

Abusers often threaten their victims that if she dares to leave he will bankrupt her and go after the children. Judges and other court professionals are often untrained in the use of economic abuse and rarely take steps to prevent this unfair strategy or use it to help understand the pattern of abuse. If courts were to respond aggressively to this tactic they would save a lot of work and court time because the abusers would no longer have an incentive to pursue a lot of frivolous claims and strategies.

8. The Importance of Context: Context is critical to understanding domestic violence issues. Accordingly custody courts shall avoid practices where each incident or issue is reviewed separately so that the context is hidden. Even where courts have made decisions denying domestic violence or similar allegations, this shall not prevent the court from examining new or additional examples or evidence of domestic violence in the context of the previous evidence rejected in an earlier decision. Similarly courts should be open to considering earlier evidence in the light of current research not previously considered. We have frequently seen courts give custody to alleged abusers on the assumption they were more likely to promote the relationship with the mother and once they gain control undermining or destroying the relationship. This behavior should be used to demonstrate the original assumptions were wrong and support the allegations of abuse because it demonstrates his motivation. Nevertheless, courts that severely punish mothers for asking courts to limit contact with dangerous fathers routinely do nothing when the fathers not only ask the court to interfere with the mother’s relationship, but unilaterally take actions to limit contact between the mother and children.

9. Review of Catastrophic Outcomes: A Catastrophe Review Commission shall be established to review events occurring after a decision in a domestic violence custody case that demonstrate the predictions made in the custody decision were catastrophically wrong. This would include cases where an alleged abuser found safe by the court later kills a child or intimate partner, is convicted of sexual abuse, child pornography, a domestic violence crime or other similar event that makes it likely the original decision was tragically wrong. A domestic violence expert shall be part of any panel reviewing these cases. The panel shall issue a public report that includes the names of the parties and professionals involved in the case, findings and recommendations. One of the problems we see is that unless a father immediately kills the children there are no consequences to judges making dangerous decisions. If they knew later events could trigger an investigation that could place the court’s mistakes in the context of some tragedy they might be afraid to take the chance.

10. Protective Parent Act: No penalty or retaliation shall be imposed for a good faith report of domestic violence or child abuse. A determination that a report of domestic violence or child abuse is not supported by sufficient evidence to confirm the allegation shall not by itself be used as proof that the allegation was deliberately false or to discredit the person making the allegation. The myth that women often make false allegations has led inadequately trained court professionals to create a punitive and retaliatory response to allegations of abuse. The decisions usually cause more harm to children than any expected benefit. Sexual abuse allegations are particularly difficult to prove. Inadequate proof, particularly in the context of common poor investigation practices do not mean the allegations were deliberately false, but too many court professionals fail to understand the distinction.

11. Courts May Not Consider Theories Based on Myths: No theories or approaches based on the myth that women frequently make false allegations of abuse shall be considered in a custody case. No professional who expresses a belief in this myth shall be qualified to participate as a neutral professional in a custody case. A determination of a belief in this myth can be made by explicit statements or implicitly from the actions and approaches of the professional. Parental Alienation Syndrome and its progeny like “friendly parent” approaches are based on the belief almost all allegations of abuse are false. The same is true of PAS by other names such as alienation or parental alienation. These bogus theories have prevented adequate investigation of abuse allegations by assuming they are false. This reform would prevent the harm caused by these unscientific practices. It would not prevent courts from considering actual evidence of specific behaviors and the effects of proven behaviors.

12. Record Keeping: Courts shall keep records that will be available on its web site providing information for each judge about how many custody cases included allegations of domestic violence or child abuse and how many the judge upheld. This will further be divided by gender. The court will also keep records of requests for protective orders and the numbers upheld by each judge. This will not invade anyone’s privacy as the names of the cases will not be provided. We know that only one or two percent of abuse allegations made by mothers are deliberately false (some additional ones may not have sufficient proof) so that if a specific judge is consistently finding against what we know have to be valid allegations, it will establish the judge needs retraining or to be removed from sitting on a bench handling domestic violence cases. I believe just posting this information will discourage judges from making arbitrary and harmful decisions.

13. Use of Best Practices by Child Protective Agencies: Child protective agencies shall work together with a local domestic violence agency and obtain training for their staff from them. The caseworkers shall consult with domestic violence advocates or other domestic violence experts when working on any complaint in which there is information the case might involve domestic violence. Many local communities have created a partnership between child protective and domestic violence agencies. These have worked well by helping to recognize domestic violence and respond in ways that benefit children. This should be considered best practices and illustrates that a mental health degree does not demonstrate expertise in domestic violence so these professionals should be consulting with domestic violence advocates or other experts.

14. Response to Child Sexual Abuse Allegations: In any child custody case that included allegations of child sexual abuse or charges against a parent who raised concerns about child sexual abuse and the court decides to give temporary or permanent custody or joint custody to the alleged abuser, the court, in writing shall specify the following: What was the evidence that supported the sexual abuse allegations; what is the evidence that proves no sexual abuse occurred; what is the evidence that proves no boundary violation occurred; what is the evidence that the complaint was made in bad faith; what is the harm of changing custody of the child; what is the benefit of changing custody, what can be done to secure the benefit without creating the harm or minimizing the harm

No type of child custody case is mishandled worse than ones with sexual abuse allegations. By the time children reach the age of eighteen, one-third of the girls and one-sixth of the boys have been sexually abused. The stereotypical abuser is a stranger, but most rapists and molesters are someone the victim knows and for children it is often their fathers. Nevertheless 85% of sexual abuse allegations result in custody for the alleged abuser. Clearly a large percentage of these cases are wrongly decided and spectacularly so. Courts routinely use flawed practices in responding to these allegations. These reforms will force courts to at least consider important issues that are often missed in the emotions of these cases. Hopefully it will discourage courts from granting custody to abusers and punishing good faith allegations.

15. Responses to Child Sexual Abuse Allegations: Courts shall use best practices in considering allegations of child sexual abuse such as use of play therapy in young children, providing sufficient time for a child to build a trusting relationship with the interviewer before expecting the child to reveal whatever happened; considering the context of domestic violence in the case, understanding children often recant truthful allegations for a variety of good reasons and the need to avoid silencing the child.

Child sexual abuse allegations are difficult to prove under the best of circumstances. The crime is not committed in front of witnesses for obvious reasons. Most sexual abuse does not leave physical proof (although inadequately trained professionals often expect it) and when physical proof is available it is often lost by the time the child reveals the abuse. Society is uncomfortable with the subject and court professionals don’t want to believe a father could do something so heinous, particularly if he is successful in other parts of his life. Accordingly it is important that professionals investigating the allegations use best practices and avoid being influenced by the myth that women frequently make false allegations. At the same time professionals should consider if the child’s reaction was caused by boundary violations or some innocent behavior.

16. Providing Necessary Information in Court Applications: In any application to a court for a change in the custodial arrangement, the applicant will provide information about any arrests or convictions for domestic violence or child abuse crimes and any prior protective orders against the party. Any misrepresentation or omission of material information required under this section shall result in the dismissal of the application and reversal of any relief granted based upon the misleading application.

We have seen common abuser tactics where they make false allegations and ex-parte applications for a change of custody. Frequently mothers lose custody without any opportunity to challenge the allegations. Courts can be unaware of a history of domestic violence and child abuse. By the time the mother has a chance to challenge the decision the children are living with the father and the court is reluctant to uproot them again. If the application fails to inform the court of these critical issues, the petition must be dismissed and the children returned.

17. Retraining Court Professionals: In conjunction with the current scientific research that establishes widespread mistakes and bad practices in responding to domestic violence custody cases and the reforms developed to respond to the problem, court professionals shall be retrained based upon current scientific research. Among the topics to be included in the retraining shall be:

1. Most contested custody are domestic violence cases and not "high conflict" cases.

2. How to Recognize Domestic Violence

3. Gender Bias

4. The Effects of Domestic Violence on Children

5. The Need to Limit Mental Health Professionals to their Actual Expertise

6. The Proper Way to Respond to Sexual Abuse Allegations.



Court professionals have received a lot of misinformation that contributes to the bad custody decisions we see in domestic violence cases. Judge Mike Brigner and I have written an article designed to train judges. These six areas constitute frequent mistakes made by judges and other court professionals that lead to decisions that are harmful to children. A big part of the problem is that many judges and other professionals have a false confidence in their knowledge of domestic violence issues and are not open to hearing information based upon the current scientific research now available. Hopefully by making major reforms in the courts’ response to domestic violence cases it will send a powerful message that court professionals need to take a fresh look at this subject and be open to the expertise now available.



Barry Goldstein is a nationally recognized domestic violence expert, speaker, writer and consultant. He is the co-editor with Mo Therese Hannah of DOMESTIC VIOLENCE, ABUSE and CHILD CUSTODY. Barry can be reached by email at their web site www.Domesticviolenceabuseandchildcustody.com
Related Posts Plugin for WordPress, Blogger...

Disclaimer

The opinions and information expressed in the individual posts do not necessarily reflect the opinions of each contributor of "Time's Up!" nor the opinion of the blog owner and administrator. The comments are the opinion and property of the individuals who leave them on the posts and do not express the opinion of the authors, contributors or the blog owner and administrator.