By Barry Goldstein
At least 40 states and many judicial districts have created court-sponsored gender bias committees. Although they have used widely varied approaches and strategies over a few decades, they have all found substantial gender bias against women. In earlier studies there was a focus on unwanted touching and inappropriate requests for dates or sex. This was almost entirely something men did to women. This type of blatant sexism is now rare in the courts, but the more subtle bias against women litigants, particularly protective mothers is common and the courts have failed to take effective steps to prevent it.
One of the problems is that good people engage in gender bias without being conscious of it. This is similar to the fact that many good people sincerely deny that many of the attacks and lack of cooperation with President Obama are caused by racism. Today, most sexism is not the kind of obvious actions of a Rush Limbaugh or Alec Baldwin and most racism is not what we would expect from a George Wallace or the KKK.
A good illustration of unintentional gender bias is provided in a wonderful article “Evaluating the Evaluator” by Lynn Hecht Schafran. A new psychologist was asked to evaluate a young family. When she visited the father’s apartment, it was a complete mess with no food in the refrigerator. She wrote the father lives in a typical bachelor apartment. The mother’s apartment was somewhat messy but not as bad as the father’s. She had food in the refrigerator but not as much as preferred. The evaluator wrote that the mother lives in a messy apartment with inadequate food. The psychologist had a supervisor because she was new who asked if she could see what she had done. The evaluator could not believe the gendered biased approach and stereotypes she had used and quickly corrected her report. The story is useful because it demonstrates how easy it is for someone acting in complete good faith, and even a women, can engage in gender bias against a mother. Unfortunately courts have been very defensive in responding to concerns about their gender bias.
The gender bias committees have found that the courts are holding mothers to a higher standard of proof, giving them less credibility and blaming mothers for the actions of their abusers. In one notorious case that plays a central role in my book about the Quincy Solution, the court held the mother to a certainty standard while using the normal probability standard for the father. The mother’s evidence was overwhelming, but no one can meet a certainty standard. It is even more burdensome than beyond a reasonable doubt required for a criminal conviction. It is rare that such a blatant violation of due process and equal protection would be in writing and yet between 15 and 20 different judges reviewed the case and not one even discussed this clear violation. More commonly the higher standard must be taken from the context such as disbelieving an abuse complaint because it did not lead to a criminal conviction or assumptions the end of the relationship means the danger no longer exists.
Fundamental to the courts’ failure to respond effectively to domestic violence cases is the widespread disbelief of mothers’ complaints. The Saunders’ study from the U. S. Department of Justice found that judges, lawyers and evaluators without the specific training they need tend to focus on the myth that mothers frequently make false allegations. In other words the outcome and failure to protect children is based on the inadequate training of court professionals rather than the actual circumstances in the case. The Bala study cited by Dr. Saunders found that mothers involved in contested custody make deliberately false allegations less than 2% of the time. In contrast, fathers in contested cases are 16 times more likely to make deliberately false complaints. And yet the court committees found that fathers are given more credibility. Both the outcomes and the practices confirm the unfair advantage fathers are given.
When courts blame and punish mothers for trying to protect their children from fathers they have experienced as frightening and dangerous, the courts are blaming mothers for the actions of the fathers. The Saunders’ study found unqualified court professionals tend to assume mothers are hurting their children when they try to shield them from dangerous abusers.
The Saunders’ study found that judges, lawyers and evaluators need training in screening for domestic violence. We repeatedly see evaluators and judges disbelieve abuse allegations based on non-probative information. Common examples are when mothers return to her abuser, fail to follow-up on a request for a restraining order or do not have police or medical reports. All of these are normal responses of victims for safety and other good reasons. Another common example is that a professional will observe a father interact with his children and they don’t show fear. The unqualified professional assumes this means he can’t be abusive. The children understand he would not hurt them in front of witnesses and this may be a chance to have a safe connection with their father. These are five common circumstances and when courts discredit abuse allegations for these reasons it means they will disbelieve many true complaints and fail to protect children. At the same time the courts fail to look for the patterns of controlling and coercive tactics that could help them recognize the abusers’ motivation.
Another way to recognize the widespread court bias against women is to look at how the courts respond under similar circumstances. The courts have a strong bias for keeping fathers in children’s lives and tend to minimize the risks. Even when his dangerous behavior convinces a judge to limit the father to supervised visitation there is tremendous urgency to resume normal visitation. In many cases his ability to act appropriately during supervision, which tells us nothing about how he would act in private is routinely used to quickly resume unprotected visitation. Mothers are more often limited to supervised visits because the court disbelieved true allegations of abuse and supervision is imposed to prevent her from making any “alienating” statements. There is no safety risk in these cases and in fact separating children from their primary attachment figure increases the child’s risk of depression, low self-esteem and suicide when older. Nevertheless the courts show no urgency to resume normal visitation and the unnecessary supervision, which severely drains her financial resources is often kept in place for many years.
A tragic illustration of this bias is the Rams and Khawam cases in the Washington, D.C. area. The father in the Rams case was initially limited to supervised visitation, not only because of his abuse of the mother, but a history of criminal activity and he was a suspect in at least two murders. Nevertheless the court was anxious to resume unsupervised visitation and did so after a few months. The father is now in jail awaiting trial for the murder of the baby.
The Natalie Khawam case gained national notoriety after her twin sister filed a complaint with the FBI that led to the General Petraeus scandal. General Petraeus and General Allen had written truthful letters to the judge attesting to what a wonderful mother Natalie is. The court used typical flawed practices and an unqualified evaluator that led to a decision giving custody to the alleged abusive father and limiting the safe, protective mother to supervised visits. This is the kind of extreme decision the Saunders’ study refers to as a “harmful outcome” case that is always wrong. Even if the court made accurate findings, the extreme restrictions cause far more harm than good. In most of these cases, Saunders’ found the extreme outcome is indicative of very flawed practices so that the opposite outcome was likely to better serve the child.
In any event there was never any safety issue that required supervision. There was no dispute that the mother always took excellent care of her son. Nevertheless the court continues to keep the hugely expensive supervision requirement and has no urgency to allow the children to resume a normal relationship with his primary attachment figure. The Rams and Khawam cases are not exceptions but demonstrate how courts are more concerned with the fathers’ relationship than the mothers’. In most cases the mother has done most of the child care and so has a closer relationship with the children. Many court professionals unconsciously view this as an advantage for the mother and seek to help the father to make things more even. They don’t understand that the relationship with the mother is actually an advantage to the children.
The United States was founded based on a revolutionary principle that all men are created equal. It is a belief that has profoundly influenced the entire world, but has not always been lived up to. There are few if any societies in which women have had the same privileges and opportunities as men. Even after the government changed laws to permit women to vote, engage in the professions and are supposed to have equal job opportunities, the reality is very different.
As a man with a long history in the movement to end domestic violence, I frequently receive lavish praise for acting in ways that ought to be normal. Our society’s tolerance of rape and domestic violence profoundly impacts women’s lives and undermines their opportunities. There is no equivalency to the frequency with which men and women face these life changing crimes. Practices that seek to blindly treat men and women the same ignore history, context and these very real dangers.
The Quincy Solution can finally make women and children safe in their homes and give women the opportunity to reach their potential. This will make our society healthier, wealthier and more enjoyable. So what about the women? Instead of pretending that men are at as much risk from domestic violence, let’s use the best practices available so that women will be as safe as men in their homes.
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