Gender Bias Task Force:Comments on Family Law Issues

I have been a Juvenile and Domestic Relations District Court Judge for almost sixteen years. I will proudly admit that I get to serve in, what I believe to be, the most important court in Virginia. Despite the diversity that we have on the bench,1 the Task Force study found that the respondents perceived gender bias to play the most significant role in family law cases.2 I will address the following three major study areas of the Family Law Subcommittee: domestic violence;3 divorce, custody and visitation, and child support;4 and equitable distribution.5 Let me begin with the area of domestic violence. These matters include criminal cases of assault and battery against family or household members, as well as civil cases involving the issuance of family protective orders.6 Virginia defines family abuse as any act that involves violence, force, or threat of violence, including any forceful detention that results in physical injury or places one in reasonable apprehension of harm.7 To give you a perspective, 37,000 adult victims of family abuse were known to social service agencies in Virginia about three years ago.8 We found, as our Task Force studied this, that most of these victims were women;9 therefore, we made the conscious decision to discuss this issue solely in the context of the female victim. What I found to be the most alarming result from the data that we collected was what many felt to be Virginia judges' lack of knowledge about the issues and dynamics of domestic abuse. The Task Force was aware that myths surround domestic violence and that these myths can effect judicial decision making. These myths include the ideas that domestic violence is a private family matter; that it is an unusual occurrence in the life of a couple; that abuse is only a momentary loss of temper; that domestic violence only occurs in poor, urban areas; that it never produces serious injuries; and that the victim can leave the relationship easily.10 We know that none of these myths are true. However, our data revealed that almost seven in ten service providers to family abuse victims, more than seven in ten female family law attorneys, and more than seven in ten female prosecutors believed that judges who handle family abuse cases in Virginia are almost never, rarely, or only sometimes knowledgeable about the dynamics of family abuse.11 It was a painful finding for me. The issuance of protective orders in family abuse also appeared to be problematic, especially with judges who issue mutual protective orders in cases where the male did not make such a request. More than half of the family law attorneys report that courts issue mutual protective orders where allegations do not warrant their issuance.12 Another area of concern revolves around the prosecution of domestic abuse cases. Prosecutors reported problems in the handling of family abuse cases because victims often will recant or are reluctant to testify as witnesses.13 Some courts have "no drop" policies,14 but in Virginia that varies widely because prosecutors are not mandated statutorily to prosecute misdemeanor domestic assault and battery cases. In the court in which I sit, a female victim is clearly disadvantaged in confronting her abuser, especially where she may have a financial dependence on that abuser, a fear of retaliation, or a belief that the court really is not going to be able to protect her. These fears are coinpounded by such issues as embarrassment or a lack of information about what her legal options may be. …