UNUSUAL TALES FROM DOMESTIC VIOLENCE COURT

When I passed the bar in 1970, driving under the influence of alcohol was a minor traffic offense, some traumatizing punishments of children were considered a liberty right of the parents, and domestic violence was a private matter of no concern to law enforcement. Pretty bad, huh? By decade’s end, DUI was a serious traffic crime, Congress placed the life and liberty rights of children to grow up in safety above their parents’ prerogative to recklessly and arbitrarily harm them. But it took over 20 more years for America to came to its senses and treat domestic violence as a public health problem.

After passage of the Violence Against Women Act of 1994, Domestic Violence Courts sprang up all over the country and become one of the most important courts in the land. Admittedly there were scoundrels who turned the court’s worthy purposes upside down and used DV Courts as weapons of hatred, jealousy, revenge, vindictiveness – and believe it or not, for gaining an upper hand in child custody litigation. Nevertheless, and far more importantly, DV Courts helped keep millions of women and children, and yes, men, safe from people fixated upon using violence as instruments of power and control.

An atmosphere of danger, dread and anxiety hangs heavily over DV Courts. It’s the place where most judges prefer not to be. In addition to sad tales told of threats, intimidation, psychological cruelty, stalking, beatings, and terrorizing, judges can expect to hear an abundance of perjured or embellished testimony, mostly, but not exclusively from the alleged perpetrators. It’s the perfect storm of circumstances that make DV Court the fastest track to burnout for many, many judges. Despite the development of best practices over the years, DV Court cannot improve enough for those judges who lack the heart or the stomach for the work.

I spent about five years, on and off, hearing DV cases as one part of my assignment in the Family Law Division of the Circuit Court for Lee County, Florida. I started out with an idealistic hope that I could make a difference in the lives of victims, and maybe even change the lives of some of the perpetrators. I believed I did my best work as an active problem solver rather than a passive umpire calling balls and strikes, but it didn’t take long for me to realize that DV Court, like no other previous judicial assignment, was tenaciously wearing down my resolve to listen courteously, answer wisely, consider soberly and decide fairly. Following are four domestic violence cases I presided over. The first is actually a confession of the biggest mistake I made in DV Court. The other three point out how weird DV Court can get.

1. Mea Culpa

One of my first impressions of DV Court was how sad I felt for the true victims of domestic violence while at the same time how appalled I was at how many people were abusing the system and bleeding judicial resources away from those in need of both protective and rehabilitative services. So, at first, I was a skeptic of the efficacy and efficiency of DV Courts. That skepticism drove me to search for shortcuts to move cases along quickly. I found one of them in the cases where both parties were seeking a restraining order against each other. Mutual restraining orders seemed kind of fishy to me. I thought DV Court was about protecting victims from perpetrators, not mutual combatants, or mutual fakers, from one another. Therefore, I, in haste, developed a rigid rule. At the outset, I declared that I would not hear evidence. Instead, I gave them my all-or-nothing proposition whereby the parties either agreed that both would abide by a mutual restraining order or I would dismiss both petitions and leave both of them without a remedy. I believed these folks were gaming the system, so I thought it would go better if everyone was in the same boat, with neither having an advantage over the other. I thought I was being clever. Instead, I was being very shortsighted and unfair.

One day, I caught a case that rarely comes along. Because the parties in this case were neither related to one another nor ever shared the same residence, Florida law required at least two distinct episodes of actual or threatened acts of violence to be eligible for a restraining order. The parties here were next door neighbors. One of them was represented by a lawyer, someone with whom I had a history of unpleasantness. She had an annoying tendency to whine, plus she always seemed to be representing clients with the weaker case. When I informed the parties that I wasn’t going to hear evidence and explained my all-or-nothing options, she vehemently objected. I explained to her the rationale for my policy, and added this policy was ideally suited for quarreling neighbors.  Nevertheless, she persisted, arguing that I could not rule without hearing the evidence and insisted the other party’s case was totally without merit and motivated purely for spite. I refused to budge. She finally gave in, and the parties agreed on mutual restraining orders.

In retrospect she was absolutely right. I allowed my mild antipathy toward her and my untenable personal policy in mutual restraining order cases to stiffen my neck and color my judgment. How would I know if her claims were true unless I heard the evidence? I realized I had been denying due process just to speed things along. I changed my policy after that. Sometimes, judges can learn some valuable lessons from out-of-favor lawyers. Mea Culpa.

Here are three cases from the quirky side of DV Court. At the end, I’ll let you decide if I need to confess more mea culpas.

1. Courtroom Brawling with a Dash of Pepper Spray

The first rule in DV Court is everyone’s safety. Petitioners (the complaining victims) and respondents (the alleged perpetrators) are required to sit on opposite sides of the courtroom. When mediation is going on, the parties sit in different rooms and the mediator travels back and forth. When a case is concluded, the perpetrator typically is required to remain in the courtroom while the victim is allowed a five-minute head start to the parking lot. The second rule is keeping the emotional heat at room temperature. Accordingly, DV Court will always have more than one bailiff in the courtroom. Among other duties, their job is to warn the parties when vocal volume is too high, to occupy spaces between contentious couples, to quell imminent physical altercations, and to arrest those the judge orders taken into custody. Bailiffs and court security officers prevent DV Court from becoming a melee and their jobs sometimes become hazardous.

One afternoon I was working my DV docket and came to the last case of the day. Unlike the most common DV cases which are between boyfriend and girlfriend or husband and wife, this case was between two girlfriends of the same boyfriend. Each woman had filed petitions alleging threats of serious bodily harm. The underlying motive of each party was more about trying to drive the other away from the boyfriend than about personal safety. Neither girlfriend expressed fear of the other. Indeed, each claimed she could easily kick the ass of her rival. After hearing each one’s exaggerated tales, I couldn’t wait to ask questions. My goal was to make them understand that the same man who was proclaiming his deep affection for both women, was in effect cheating on both and making fools of them. Their real enemy was this lowlife scumbag who could now brag to his buddies that he had women fighting over him in court. As I am wont to do at times, I launched into a sermon explaining that my many years on the bench made me an expert in deceptive, deviant male behavior, and they were both victims. The real perpetrator was the boyfriend who, while they were in court fighting over him, was probably out boffing a third girlfriend.

They calmed down and seemed to understand. They even looked a little embarrassed at being deceived by this two-timing Lothario. Nevertheless, I knew better than to suggest they shake hands or hug. I told them I was dismissing both petitions because neither was in fear of the other, and that each woman was merely trying to get into the other’s head. I admonished them to ponder whether this guy was worth all the pain and trouble they had gone through. As they headed for the door, I chalked this one up as a win – until what happened next.

Because my DV docket was light that afternoon, I used my small hearing room. Most courtrooms have wide, swinging double doors, but our hearing rooms only had one standard door for both entry and exit. The two women began their exit in single file, but as they reached the door, they were side by side. Both tried to exit first, and you can imagine what happened next. Yep, they got stuck in the door, and neither would give way to the other. They squirmed vigorously to get out first, but seconds later a full-on brawl of grabbing, shoving, pawing and scratching broke out.

I had only one bailiff that day. He rushed to the combatants and tried to break it up. For a moment the scene resembled a Looney Tunes cartoon fight, with a swirling cloud of dust and clenched fists and feet poking out. The bailiff was forced to use his pepper spray to separate them. As he was about to administer the spray, one of the women struck his arm causing the bailiff to mace himself. After a few more squirts, the women pulled away screaming and rubbing their eyes. My bailiff, eyes red and watering profusely, was still functional and he immediately detained both women and took them to adjoining holding cells located just off from the hearing room. I went in and informed them there would be a contempt of court hearing as soon as everyone calmed down. My bailiff, having emptied half a bottle of water into his eyes, kept watch as I returned to my office. About a half hour later, the two miscreants, faces red, eyes still watering, were brought before me.

I told them that if they apologized to the court and to the bailiff for their outrageous behavior, I would not find them in contempt and I would release them. One woman apologized immediately, and she seemed quite sincere. I accepted her apology and sent her on her way. I looked at the second woman, and she said nothing. Instead, she turned her head and looked away in what seemed like an act of defiance. After several seconds of silence, I found her in contempt of court and ordered her to spend the night in jail. I informed her I would see her the following morning. The bailiff then escorted her to the jail. I told him privately that if she apologized before being fitted for her orange jumpsuit, then give me a call, and I would release her. About fifteen minutes later, I got the call. The loud, echoing, clanging doors apparently changed her mind and she apologized. I ordered her released as well.

The next morning, I saw the bailiff and asked him how he was doing. He explained that because the booking process had begun before she apologized, he had to do the full write-up, not only the required incident report for using pepper spray while on the job, but he also had to complete the booking process, both into and out of the jail. Normally, his shift would have ended around 5:30 p.m. That night he didn’t get home until midnight due to all the paperwork he had fill out because two adults could not peaceably walk out of a courtroom. The only good news was my bailiff received time and a half combat pay.

III. The Unhappy Hunter

One requirement of every person hit with a DV restraining order is the mandatory surrender of all firearms to the Sheriff’s Department and the removal of anyone else’s firearms from the residence. Moreover, he – usually it’s a he – cannot possess other people’s firearms or knowingly be in the vicinity of firearms. In other words, if he was a hunter, his hunting season was over until the expiration of the restraining order, which usually lasts one year, but can be extended to two years, and in some cases can be made permanent.

On my calendar one afternoon was a motion to amend the terms of a restraining order. Deer hunting season was under way and this particular deer-hunter-under-restraint wanted the court’s permission to regain possession of his deer rifle and be allowed to hunt. He was present with his lawyer and his father. Our hunter appeared to be in his late twenties, handsome, well-groomed, and dressed very appropriately for court. His attractive wife, also very properly dressed, sat on the opposite side of the courtroom. I assumed both were young urban professionals – not the sort one typically finds in DV Court.

He sat quietly, his face appeared remorseful and contrite. I couldn’t discern whether his expression was real or painted on for effect. His lawyer informed me his client had strictly followed all terms and conditions of his restraining order, including attending the Batterer’s Intervention Program. Then, with voice and expression filled with pathos, counsel regaled me with his client’s love of hunting, how embedded it was in his family’s traditions and how it had forged tight bonds between the males in his extended family. He mentioned it was the first hunting season his client had missed since early adolescence. Furthermore, being forbidden to hunt and missing out on the nighttime camaraderie around the campfires at the hunting camps was making him depressed.

Finally, our unhappy hunter could no longer sit silently. Obviously very anxious to speak, he bounded to his feet and began to plead his own case. First, he promised to keep this rifle stored under lock and key at his father’s home, and he would not even touch the weapons until he was out in the woods, far from his wife, and always chaperoned by his father. Then, upon leaving the woods after the hunt, he would give the rifle back to his father. Second came his impassioned plea, almost in tears, explaining how important hunting was to him. Without actually saying the words, he confessed to me of what seemed like an addiction to guns and hunting. He spoke wistfully of his large gun collection as though they were his children. He pleaded for his guns like a schoolboy in a sporting goods store begging his father for his first BB gun.

I have a foggier memory of what the wife said because she was far less dramatic, but I remember her telling me she didn’t trust her father-in-law to enforce the promises her husband made. Then I asked her the question I always ask when a perpetrator is motioning the court for relief from restrictions: will she feel safe if I grant the motion? She answered with a simple but emphatic no. With that answer our unhappy hunter ratcheted up the whining and pleading, repeatedly claiming his wife was just being mean and vindictive, and she knew she would be perfectly safe.

Once again, I was faced with the dilemma of which witness is credible and which was trying to blow smoke. Was the wife now using the restraining order vindictively, watching him squirm as she delivered a taste of what it feels like to be victimized? Was our unhappy hunter only in need of a fix for his hunting addiction, or did possession of his guns give him that shot of testosterone he needed to restore that feeling of power that all batterers crave? I finally concluded that the wife’s expressed fears were real to her and by granting the motion she would indeed feel safer.

I denied the motion, and I must confess that the axiom, “it’s better to be safe than sorry,” weighed into my decision just as heavily as my impressions of the credibility of Mr. and Mrs. Unhappy Hunter.

1. A MOST SURPRISING PIECE OF EVIDENCE

Nowhere more important is the old saying that a picture is worth a thousand words than in domestic violence litigation. Literature helping victims seek relief from domestic violence is replete with advice to photograph their physical injuries. Since bruising is a common injury, the literature urges victims to photograph them immediately, before they discolor and fade. Photos of injuries not only help prove that violence occurred, but they often rebut bogus, exculpatory claims by the perpetrator about how the injury occurred. This advice is vital for domestic violence victims because many of them never end up at the hospital or the police station, places where photos are routinely taken.

Before going further, I must share an observation from the bench. As I’ve often said, truth frequently takes a holiday in juvenile and family courts, and domestic violence court is certainly no exception. Men who use violence to gain and keep power and control over women are among some of the most accomplished liars on the planet, and some of them believe they are so good at it that they look forward to plying their mendacious skills in the courtroom.

Ill-motivated petitioners who make false claims of violence in order to obtain a restraining order for wrongful purposes are quite often gifted liars themselves. However, one of their “tells” is their use of damning but irrelevant details which they hope will sway the court to come over to their side. For example, the alleged victim may spend too much time demeaning her alleged attacker with extraneous stories of prior bad conduct and spend too little time talking about the allegations in the petition. While one’s character can be important in such cases, it shouldn’t come into play until there is presented some credible proof that domestic violence did occur and the alleged perpetrator is the person who did it. In legalese, it’s called making a prima facie case. Without a prima facie case, the case is over, no matter how much of an asshole the alleged victim makes the alleged batterer out to be. Therefore, when an ill-motivated petitioner goes up against a prevaricating perpetrator, the judge could really use some evidence that isn’t a lie.

So, one morning I was hearing a disputed domestic violence claim. Both the petitioning woman and her counter-petitioning boyfriend were claiming victimhood. The altercation began as an argument in the living room and ended up in the driveway where Girlfriend claimed she was trying to escape from Boyfriend, whom she claims was physically attacking her. Boyfriend claimed he was defending himself from Girlfriend who was wildly punching, kicking and scratching him. Here was the classic case of two experienced liars going at one another. Without lawyers to control either party, and with just about all semblance of decorum gone, I found myself refereeing a bickering match hoping someone would give me something I could use to make a decent ruling.

After much quarreling, Girlfriend announced she had pictures of her injuries. Thank God, I thought to myself. Finally, something I might be able to hang my hat on! Girlfriend produced a short stack of approximately eight, 4 x 6-inch color glossies, all date stamped. I began examining each one, and, sure enough, there were fresh bruises on her upper arms, neck and jaw. The pictures revealed not only proof of injury, but a pattern of injury consistent with a beating.

Then, somewhere near the bottom of the stack came my big surprise. It was picture of Girlfriend’s naked legs, spread wide, displaying her genitalia. To complete the pose, on her face was a come-hither expression. Naturally, the unexpected photo startled me, and I immediately looked up at Girlfriend who was looking right back at me with a naughty smile.

Exactly what was she trying to accomplish with this photo? She never mentioned any injury to that part of her body. Was she testing me to see how I would react? Was she trying to corrupt me? Was she counting on me becoming titillated, thus influencing me to rule in her favor? So, without any comment, I looked at the remaining photos, all legitimate and relevant, and handed the irrelevant photo back to Girlfriend. I gave the relevant photos to the clerk and instructed that they be placed in evidence. Not a single word about the outlier photo was spoken on the record.

I ruled in Girlfriend’s favor, not because of the provocative photo buried in the photo stack, but because the pictures told a story consistent with her testimony and inconsistent with Boyfriend’s version of events. Had she not taken photos, I might have been inclined either to place both of them under mutual restraining orders or put a pox on both their houses and sent them away empty-handed. Despite Girlfriend’s poor performance as a witness, and her poor taste in the photographic arts, the photos carried the day.

EPILOGUE

So, dear reader, how did I do? Should I have kept the pugilistic courtroom brawlers in jail? I had the authority to give them up to 60 days for direct criminal contempt of court. Should I have granted mutual restraining orders despite my certainty they were gaming the system? What would you do if the boyfriend showed up in court?

Should I have placed so much emphasis on Mrs. Unhappy Hunter’s simple “No, I don’t feel safe,” after Mr. Unhappy Hunter promised to take such extraordinary measures? Don’t forget, the man had a deep love affair with his guns.

And do you approve of how I responded (said nothing and did nothing) to Ms. Porn’s surreptitious insertion into the photo array? Should I have held her in contempt for disrespecting a court of law?

I’d like to hear your comments.

Finally, all these vignettes show an atypical side of domestic violence court and domestic violence cases. The really serious cases are heart-wrenching, especially when children are involved. Nothing I wrote herein is meant to diminish the suffering of true victims of domestic violence or demean the significant role domestic violence courts play in our judicial system. DV Courts save lives and keep many suffering men, women and children out of danger. The dedicated people who work in domestic violence courts, judges, magistrates, mediators, counselors, clerks and bailiffs, are the saints of our justice system.