The Real Meaning of Stopping Domestic Violence:
Helping Potential Victims Feel Safe
By Barry Goldstein
Dara Carlin is one of the best domestic violence advocates and told Elizabeth Liu and me a story when we were working on our book to train attorneys. Dara has a friend who is literally seven feet tall and could be scary to those who don’t know him. He understands the impact he could have and so makes a point of being extra soft, extra slow, extra gentle and extra humble when he first meets someone. It is important to this gentleman that people will feel safe in his company.
This issue of helping a potential victim feel safe is especially important in the context of domestic violence.
Too often the public and professionals tend to focus only on physical abuse. The essence of domestic violence is that an abuser uses a variety of tactics to coerce and intimidate his partner. In other words he seeks to pressure a woman to do what he wants because she is afraid of the consequences if she doesn’t. There are many statistics that seek to demonstrate how many women are victims of domestic violence. I usually do not reference this research because it varies widely depending on the definition of domestic violence and is always impacted by the fact that men’s abuse of women is seriously underreported. Nevertheless, I believe it is clear that most women have experienced abuse by the men in their lives. This is significant because it means a woman may have some fears of her partner even when it is not based on his abusive behavior. Unfortunately this fear can interfere with relationships, prevent intimacy and discourage women from sharing their preferences and feelings. Accordingly, it is important for men to recognize their impact on women and like Dara’s friend affirmatively attempt to make his partner feel safe.
The ACE (Adverse Childhood Experiences) research makes the need to feel safe even more important. These studies demonstrate that the stress from living with fear can cause many fatal illnesses. This should provide an added incentive for good men to make sure their partners feel safe in their company.
I am certainly not advocating making it a crime for men to act in ways that make their partners feel unsafe, but this focus will lead to a more useful discussion about abuse issues. It means that common statements that minimize the impact on women like “can’t you take a joke,” you’re too sensitive” or “that wasn’t my intent will be understood to have no validity. This would discourage common approaches that blame-the-victim and instead focus on the person who is causing the problem.
Courts Must Help Potential Victims Feel Safe
One of the benefits (and harms) to men from being oblivious to the fear they engender in their partners is that they avoid hearing objections and concerns about what they want to do. This allows them to proceed as they prefer, but without important information. This is also true of courts that use practices which silence victims and their advocates.
I decided to write this article after an advocate told me that their agency was afraid to take the lead in a project that would help battered women out of concern they would suffer retaliation. The concern was created because a researcher was punished after revealing widespread failures in the custody court system to protect battered women and their children. Over the years, many protective moms have complained that they do not receive the support and assistance from domestic violence agencies that they need. In many cases, it is this fear of retaliation or lack of support that makes the agencies fearful to advocate “too zealously” for their clients. The Saunders’ study found that domestic violence advocates have the most knowledge and expertise of any group of professionals so when courts silence advocates they are depriving themselves of information they badly need.
In Poughkeepsie, New York, the custody courts were especially bad in domestic violence cases and routinely silenced and retaliated against protective mothers and anyone who dared speak on their behalf. This led to a series of domestic violence homicides that resulted in nine deaths in less than a year including a brave police officer who had rescued a young child from an abusive father who just killed the mother. In response to these tragedies, the county legislature asked a citizen’s committee of law enforcement and other professionals to review the county response to domestic violence. One of their most important findings was that many victims stopped seeking assistance from the courts because the judges were viewed as helping their abusers and thus making their lives more dangerous. It is hard to imagine a more serious indictment of a court system.
The ACE research establishes that children exposed to domestic violence, child abuse and other traumas will suffer more illnesses and injuries throughout their lives and their life expectancy is reduced.
No judge wants any child to suffer these consequences, but they have no ability to protect children if they are unaware that the child has witnessed domestic violence or been directly abused. Nevertheless, many of the present practices discourage protective mothers from presenting this important information.
The most common question I receive from protective mothers is how they can find an effective attorney. Many attorneys have refused to present evidence of abuse or aggressively discourage clients from raising these issues. In some cases lawyers have personal beliefs that minimize the significance of domestic violence or assume most complaints are false. Other attorneys do not possess the knowledge or training to understand the significance of abuse in the case. Too often the lawyers are reflecting court approaches that see complaints about domestic violence and child abuse as an attempt to interfere with cooperative parenting.
The problem is especially severe in the context of child sexual abuse concerns. Attorneys routinely discourage mothers from raising these concerns because the allegations are usually disbelieved and mothers are severely punished for trying to protect their children. Although deliberately false allegations by mothers occur less than 2% of the time, 85% of sexual abuse complaints made by mothers result in custody for the alleged abuser.
The ACE studies asked middle age adults in a confidential study about sexual abuse, and found that 22% of the patients had been abused sexually as children. These were events that occurred many decades earlier so there would be no reason to make it up. Indeed this is probably a conservative number as some patients might be embarrassed even in a confidential survey and some have used defense mechanisms to forget the most traumatic event in their lives. Sexual abuse has a catastrophic impact on children, especially when they cannot receive support, protection and treatment. Accordingly, it is a public health disaster that the courts so frequently are unable to protect children from predators or even learn about the alleged abuse. Abuse allegations are painful and difficult to deal with and take significant court time, but the consequences of discouraging complaints has been a disaster for our children.
The court response to what the Saunders’ study referred to as “harmful outcome” cases is especially problematic. These are cases in which an alleged abuser gains custody and a safe, protective mother, who is the primary parent, is limited to supervised or no visitation. This outcome is always wrong because the harm of denying children a normal relationship with their primary attachment figure, a harm that includes increased risk of depression, low self-esteem and suicidewhen older is greater than any benefit the court might think it is providing. Saunders found that in most of these cases it was very flawed practices that led to the extreme result and the opposite decision might have worked better for the children. The Saunders’ study also found that evaluators, judges and lawyers without the specific training needed regarding domestic violence tend to focus on the myth that mothers frequently make false allegations, unscientific alienation theories and the belief that a mother’s attempt to protect her children from a father she deems dangerous is actually harmful to the children. These mistaken assumptions lead to outcomes that are harmful to children. Even if the judge knows the assumptions are wrong, the court may be relying on GALs or evaluators who make recommendations based on these mistaken beliefs.
In many cases the extreme outcomes are the product of courts seeking to punish mothers for continuing to believe the father is dangerous after the court dismissed their concerns. In other cases the threat of this type of retaliation has the impact of silencing protective mothers. Practices that make it a priority for potential victims to feel safe in the court would help courts obtain more information they can use to protect children and avoid these extreme outcomes that are always wrong for the children.
The Batterer as Parent and other good research establishes that in families impacted by domestic violence, the health and well-being of the protective mother is the most important factor in the children’s recovery.
It is a mistake to create a false equivalency between abusive fathers and their victims. The ACE research demonstrates that domestic violence is traumatic for abused women and their children. At the same time abusers have told their partners that the courts will not protect her and he can do whatever he wants. Judges need to avoid actions and practices that support abusers’ claims. Research led by Jennifer Hardesty found that court professionals often treat the anger and emotion displayed by battered mothers as reflecting poorly on their parenting ability. This mistake is often done unconsciously so judges need to guard against doing this. Just like safe partners, judges should work to make allegedly abused women feel safe to provide any information that can help the court understand the risks to the children. Accordingly, it is important to avoid threats and pressure whenever possible. Punitive and retaliatory responses against protective mothers are usually wrong because children often feel they have been punished and must have done something wrong. One little girl reported her father’s inappropriate touches but could not speak to investigators about it. The court disbelieved her and forced her to live with her abuser. At the first supervised visit the child had a letter for her mother. She said she was sorry she was such a bad girl. She believed she was bad because her report led to the worst punishment in her life. She lost her mommy. Judges should also be conscious of the fact that time pressure, body language and tone of voice can also silence victims. Lawyers should be given a clear message that the court is open to information regarding alleged abuse.
Why Does Domestic Violence Require Higher Burden of Proof?
I recently had the privilege of participating in a discussion that included many of the leading national experts in domestic violence and custody including many prominent court professionals. I suggested that the ACE research, which demonstrates that children exposed to domestic violence suffer more illnesses and injuries and reduced life expectancy, should eliminate the need for an evaluator to determine how the abuse is affecting an individual child. Most of the experts at the meeting said the courts would never be willing to treat proof of domestic violence as requiring restrictions on the abuser without looking at the present impact on the child. This would continue the “need” for evaluators to determine how each child exposed to domestic violence is doing. Significantly, courts routinely protect children exposed to other bad parenting practices without the need to prove the specific harm to each child.
Recently, the public has learned of a series of cases in which a parent left young children alone in a car or otherwise unsupervised. Presumably there is an age depending on individual circumstances when it is appropriate to leave a child alone. In cases where the child is clearly too young to take care of themselves, this is considered bad parenting. Some parents are charged with criminal offenses and others can lose custody of their children. This is true even if nothing bad happened to the child because it is understood this is risky behavior that can lead to serious harm.
A custody court would routinely favor a safe parent over a parent who left a child alone even if the child was not harmed. Similarly, a court would rule against a parent who smoked in front of the children; failed to provide needed vaccinations; allowed the child to repeatedly skip school; failed to provide healthy meals, dressed them inappropriatelyfor the weather; used illegal drugs or associated with dangerous criminals. In none of these cases would the court require an evaluator to determine whether the poor parenting caused discernible harm. It is possible in any of these situations that an individual child might do well and have a successful life, but a court, like the public would understand that living with the other parent, who is safe is in the best interests of the child. Exposure of children to domestic violence is similarly risky and yet courts seem to require an additional and problematic layer of proof. Why is that?
When domestic violence first became a public issue in the mid-to-late 1970s we had no research about the impact of domestic violence on children. It was widely assumed that unless the child was directly assaulted, a father’s abuse of the mother was irrelevant to custody and visitation. Another bad early assumption was that domestic violence was caused by mental illness or substance abuse. This led to the widespread use of evaluators as if they were experts in domestic violence. I recently had the privilege of presenting a workshop at the American Psychological Association national convention with three of the best psychologists on domestic violence issues. I pointed out that each of my colleagues had thousands of hours of experience working with victims and studying and writing the leading research. Their expertise in psychology and domestic violence is tremendously valuable. We have seen that requiring evaluators to have several hours of domestic violence training does not provide them with the needed expertise. Requiring more training is beneficial, but still does not provide the needed understanding of genuine experts. Over the years psychologists and other mental health professionals have profited from this business and gradually convinced the courts to expand the use of these mental health experts.
Later research established that children exposed to domestic violence are more likely to engage in a wide range of harmful decisions and behaviors. This led legislatures in every state to require custody courts to consider domestic violence in all custody and visitation decisions. Unfortunately, courts continued to treat psychologists as if they were domestic violence experts. Now, the ACE research establishes that exposure to domestic violence creates catastrophic health consequences for children. The pressure from professionals who make their income responding to domestic violence custody cases, normal preferences for the status quo and reluctance to acknowledge widespread failures from existing practices are obstacles to creating the reforms needed to protect children.
Already, the courts had a problem that children react in a variety of ways to exposure to domestic violence. Although some children act out in obvious ways that ought to be clear, this is often misdiagnosed as a response to the divorce or some other cause. Other children may respond with defense mechanisms like a form of amnesia to forget the traumatic event or might compensate by acting like adults and taking on important responsibilities in the home. This results in evaluators believing the children are doing well and so fail to protect children.
The ACE research ought to put an end to this charade. This is medical research that initially has been focused on helping doctors diagnose adult patients dealing with health problems caused by exposure to domestic violence (and other abuse) decades earlier. Most of the illnesses and injuries caused by witnessing domestic violence will not occur until after the custody case is resolved. Are we to say that these children are not entitled to protection? Surely that would not be in the best interests of children. In the examples I gave earlier, courts understand they have the right and indeed the duty to protect childreneven if they appear to be doing well.
The ACE research demonstrates the very great likelihood that children exposed to domestic violence will be severely harmed. The potential risks are far greater than the impact of other considerations courts routinely use including economic resources of the parents, school district, “alienation,” friendly parent and nicer home. Of particular importance is that when the courts see the children it is still possible to avoid many of the health problems by reducing the stress by preventing further abuse and providing any needed treatment. In legal jargon, this is the last clear chance to avoid what is not an accident.
At least forty states and many judicial districts have created court-sponsored gender bias committees. They found widespread gender bias against women and especially women litigants. One of the most common examples is holding mothers to a higher standard of proof. Gender bias is a particularly difficult issue because it generally is unintentional and often unconscious. I submit that requiring battered mothers to prove that their child is demonstrating harm from witnessing domestic violence when courts do not require this proof for other forms of bad parenting is an example of holding mothers to a higher standard. The Batterer as Parent (and other good research) found that all batterers engage in harmful parenting practices that include undermining the relationship with the mother, teaching harmful values like sexism and serving as a poor example. Bad parents should not be eligible for custody or unsupervised visitation. Creating a higher standard works great for evaluators who earn higher incomes, for abusers seeking custody to regain control over their victims and may initially make it easier for courts to resolve cases. It is a disaster for our country that spends over one trillion dollars every year to continue tolerating men’s abuse of women. As for the children whose one chance at a good life is often determined by the outcome of the custody decision—–it makes them sick.