Do Courts Use Them in Domestic Violence Cases?
The more experience we have, the more comfortable we are relying on our “gut instincts” about people and their behavior. But when it comes to adjudicating cases, our system of jurisprudence does not condone gut feelings as a basis for judicial decisions. As discussed in Part 1 of this series, risk assessments and lethality/danger assessments can take the guesswork out of determining whether someone is likely to reoffend violently.
Many law enforcement agencies and other first responder organizations currently use accurate, evidence-based, empirically validated risk and lethality assessment tools specifically designed for intimate partner violence.
But what about courts? Are any courts using these instruments to help with pretrial release or probation decisions? Are judges using lethality factors to inform their decisions in civil protection order cases? The answer to these questions is: Yes.
On the civil side, a recent case from the Kentucky Supreme Court, Pettingill v. Pettingill, 480 S.W.3d 920 (Ky. 2015, reh. den. Feb. 18, 2016) involved an appeal from a trial court’s granting of a civil protection order against a husband/respondent after an evidentiary hearing. While granting the order and making a finding that domestic violence had occurred, the trial court judge made an entry in the docket sheet of some very specific findings, including respondent: avoided service; abused the family pet; cyber stalked wife/petitioner; threatened the life of his ex-wife in presence of his wife/petitioner; and exhibited possessive, jealous behavior by monitoring wife/petitioner’s cell phone.
Respondent appealed the granting of the civil protection order arguing that the trial court judge did not apply the proper standard of proof and unlawfully used, and impermissibly took judicial notice of, domestic violence lethality factors. The Supreme Court disagreed, holding that a judge can only take judicial notice of facts. Since lethality factors are not facts, but risk factors, they are not capable of judicial notice. The Kentucky Supreme Court found that “all the adjudicative facts were proven through testimony” at the hearing, and the “list of lethality factors—presumably contained in the court’s mind—was judicial knowledge rather than judicial notice.”
The trial court was allowed to use “background knowledge of domestic violence risk factors to inform its judgment as to whether the facts of this case indicated that domestic violence may occur again.” This case supports a judge who uses training on lethality factors in deciding a case, and referring to that training in articulating the reasons for granting an order of protection.
The state of Illinois incorporates known domestic violence lethality factors in its bail statute. When an individual is charged with a crime involving an intimate partner, such as a violation of a protection order, judges may consider some aspects of the individual’s background that are directly correlated with evidence-based danger assessment.
For example, a judge may explore whether there is a history of domestic violence, access to weapons, abuse of pets, a record of violating court orders, a recent separation from the alleged victim, obsessive or controlling behavior, threats of suicide or homicide, and whether the current incident involved strangulation. The statute authorizes a judge to order a defendant to undergo a formal risk assessment evaluation, and specifically excludes victim interviews as a source of information for that evaluation.
Courts in Virginia, Minnesota, New York, and California have promulgated bench guides for judges to use in civil, criminal, and family law cases. Their bench cards incorporate risk and lethality factors, and contain instructions (and cautions) for their use. One important caveat involves the propriety of obtaining relevant information from an alleged victim, either in open court or through a form that will be discoverable.
Requiring a victim to supply information could place her or him in an untenable position, and judges can usually acquire it from other sources. Some of the guides simply consist of checklists of lethality factors, and provide no advice to a judge about what to do if certain boxes are checked. In some states, a member of the court staff will complete a form that is incorporated into a custody evaluation report, or is used at a bail hearing for a defendant arrested for a family violence crime.
Many of the bench guides are intended to make a judge aware of the potential for danger in a given relationship and are not meant to require a certain outcome in a case. Experts in assessing dangerous situations will often supply bench guides as part of their presentations at judicial education sessions.
Judges don’t have to rely on gut feelings to assess the likelihood of repetitive domestic violence. Empirical tools are available to assist with these difficult decisions. The key is to become educated about the ways to use, and not to use, them.