Judges are supposed to stand for justice, and as the executors of this abstraction, they are supposed to be blind. But judges are often blind in a way entirely antithetical to justice. Bias blinds them to truth, or else moves them to close their eyes to the truth. Now you may wonder: can judges be held accountable to the standards of a concept as controversially defined as justice? And can people be held accountable for knowing who will make the best judge? How many times have you voted for a judge on the basis of name recognition, or party affiliation, without ever bothering to check the judge’s public record?
Judges impact the lives of citizens more than any other elected official. Judges have the power to interpret the law and assess the evidence and testimonies presented in their courtrooms. They have the power to control how trials and hearings unfold, and they have the power of the last word. They decide the degree to which you’re guilty or innocent; they decide the degree to which you will be punished or compensated. No other elected official has this sort of power over the lives of those they serve. Your congressman cannot put you in jail. Your senator cannot make sure you get child support. Your president cannot order your abuser to cease contact with you. The system, as it stands, relies solely on the judgment of judges.
And yet, the qualifications for running for a judgeship are remarkably minimal. Most local and state judges are elected in local elections held every two years. While terms vary from state to state, a median term is four years. Judges campaign for their position like any other politician and appear on local ballots during elections. A candidate for judge does not necessarily have to have to run against anyone. The defense bar often throws a lot of money behind a judge who is running in order to curry favor with that judge. After all, everyone wants to win.
As the backbone of the system, judges enjoy great authority. It’s not just their decisions, but their demeanor in the courtroom that can have major ramifications for domestic violence cases. Eileen McNamara (a Boston globe columnist and Brandeis professor), who became famous for reporting on allegations of widespread harassment of battered women by judges in the lower courts, said:
I was mystified to find that a unique set of rules governs the public’s relationship with men and women whom I had been taught were public servants. These rules … were uniform and largely unspoken. They are enforced by a culture of deference that … makes it all but impossible to hold a judge in the state accountable for the way he treats people in his courtroom. Correction: make that our courtroom. History, literature, even architecture conspire to enthrone the judge above those he is empowered to serve … Institutional indifference to battered women can only contribute to the frightening statistics surrounding domestic violence. (“Who Judges the Judges?” Ford Hall Forum, Faneuil Hall, Boston Mass., Oct. 20, 1998)
The courthouse atmosphere alone can reinforce a woman’s sense of entrapment. For example, a courthouse may neglect women’s fears by failing to provide a safe waiting area, failing to coordinate with the police and probation and inadequately training court personnel. Once inside the courtroom, battered women may be intimidated when they are treated with indifference and not informed of their legal options. Judges often display harsh and condescending behavior with patronizing or hostile remarks, racist attitudes, and bias against unmarried women. Furthering women’s isolation, the court may fail to provide resources for non-English speakers, deaf and otherwise disabled women. The community has resources, but they are useless if no one knows how to make use of them. Some judges will minimize the abuse or place the blame on the victim; she caused it; she should feel guilty for making him so angry; she is making a big deal and wasting the court’s time with a “lover’s spat.” Some judges will go so far as to collude with the violent men, joking and bonding with them, showing an unwillingness to impose sanctions on them. There are additional issues that crop up when children are involved. Judges often fail to recognize how batterers manipulate the women through their children. Judges may overlook requests for child support and order visitation rights without proper precautions.
Judges’ views can be antiquated by virtue of the fact that they are supposed to follow precedent. When a judge breaks from precedent, the judge essentially creates a new precedent that is to be followed henceforth. One such antiquated precedent was the rule of thumb. In 1874, Judge Settle made a landmark decision that ended “that barbarism,” while enabling violence in the home to continue unchecked.
“We may assume that the old doctrine, that a husband had a right to whip his wife, provided he use a switch no larger than his thumb, is not law in North Carolina. Indeed the Courts have advanced from that barbarism until they have reached the position, that the husband has no right to chastise his wife, under any circumstances … BUT from the motives of public policy, in order to preserve the sanctity of the domestic circle, the Courts will not listen to trivial complaints … If no permanent injury has been inflicted, nor malice, cruelty nor dangerous violence shown by the husband, it is better to draw the curtain, shut out the public gaze, and leave the parties to forget and forgive.” (emphasis added)
Judge Settle, in State v. Oliver, 70 N.C. 61, 62 (1874).
Contradictions abound in this decision, and Judge Settle’s wording allows judges considerable discretion when it comes to determining whether or not a complaint is trivial, an injury permanent, or the violence malicious, cruel or dangerous. And so, though the rule of thumb has been decreed “not law,” the courts can maintain their blinded eye toward domestic violence.
In the 130+ years since the aforementioned ruling, we have made little progress. The old doctrine of the rule of thumb might have made sense back when women were considered men’s property and men were punished for their wives’ crimes. But we have since accepted that women are individuals and are treated equally by the law. In theory, anyway.
In reality, the law often treats women who happen to be wives as the property of men who happen to be their husbands. Police officers, judges and lawmakers still are reluctant to interfere with a man’s disciplining of his wife.
In 1986, Judge Paul P. Heffernan granted Pamela Nigro Dunn an order of protection against her husband, Paul Dunn. She avowed that her life was in danger whenever her husband was around, and arranged for a police escort to her apartment so she could gather her belongings. Judge Heffernan chastised her,
“This is pretty trivial… This court has a lot more serious matters to contend with … You want to gnaw on her and she on you, fine, but let’s not do it at the taxpayers’ expense.”
He told Pamela to “act as an adult.” He told the police officer, “You heard me tell this lady that she didn’t need the police…You’ve been duped in this case.”
Less than five months later, Pamela was found face down in a puddle at a town dump. She had gunshot and knife wounds as well as strangulation marks. Six months later, Paul Dunn was convicted of first-degree murder and sentenced to life without parole.
The judge’s remarks became front page news.
Unlike isolated acts of violence, domestic violence follows a pattern. It does not happen once and then stop. It cycles perpetually. Not all the injuries will be visible. Not all the injuries will be put on the affidavit. Not all the rightful arrests will be made. Not all the crimes will make it on a record. Good judges insist on receiving sufficient information to reveal any pattern of systemic, abusive behaviors in order to accurately understand the situation between the plaintiff and the defendant and make a just ruling. However, many insist on the very opposite. Strictly interpreting their duties, they claim that they must ignore context and judge the crime as it stands alone. But context is what domestic violence is all about. Many domestic violence offenders are not violent toward everyone: They are only violent in the context of their intimate relationships.
Domestic violence is the most predictable crime. If it happens once, then it will happen again. We need to elect judges that acknowledge this fact and take responsibility for making sure the offender never has the chance to strike again.
So, how can we determine which of the judicial candidates would make good DV judges?
— Research their decisions
— Ask questions of courtroom participants
— Don’t just rely on endorsements— ask women’s advocates what their experience has been
— Don’t rely on gender. Some of the best and some of the worst judges of DV cases are women.
— Go to judicial forums and ask the candidates how seriously they perceive crimes committed against intimate partners — and what do they think their role is?
— Ask candidates what their average sentence is for batterers.
— Ask candidates if they think that considering a pattern of behavior for a domestic abuse case is judicially sanctioned.
— Ask candidates what they think of batterers’ intervention programs.
You have the power to change the judicial landscape for battered women and children. You can do something. You must do something.