By: Robert Ferrer
On July 29, 2013 I had the honor of attending with Bill Spencer, Rooney (Arunas) Cepas and Larry Holt the DOVE Forum sponsored by DOVE and the Dewitt County Sheriff in Clinton, IL. The forum was moderated by Sheriff Jered Shofner, DOVE’s Jennifer Tolladay and the Honorable Judge Richard Broach. It was a very pleasant evening with all participants engaging in open civil discussion.
DOVE is a faith-based organization that provides social services in a variety of areas to those in need including children, teens, seniors and the homeless. One program is the Domestic Violence Program Services. It was this program that was represented at the forum.
I was surprised that it was recognized by the participants that not all men are abusers, and that all women are not victims. In fact, DOVE states in their website that “men seeking shelter as a result of abuse from a domestic violence situation are assisted by cooperation with a local motel; call the hotline for assistance”. It is encouraging but nevertheless the focus was on women.
Judge Broach also recognized that abuse of the system is an issue. He mentioned that he has on occasion denied temporary petitions for an Order of Protection (OP). Because of the low standard of proof the law requires sworn evidence (he said-she said) is accepted even at the plenary hearing. False allegations are dealt with in the form of indirect civil contempt. It is not clear if Judge Broach has ever issued a finding of contempt.
One thing expressed was that people are starting to exhibit DV fatigue. People are getting tired of hearing about it. This is evident by the meeting’s low attendance. With all the awareness and funding for programs why has it not been solved? I would like to share a few of my thoughts on the problem and why the problem seems intractable.
First, I believe that people are getting tired hearing about DV because it is so easily abused. Way too many people are using the laws associated with DV as a sword rather than as a shield. When a temporary OP is issued physical custody of the children is automatically given to the petitioner. It has gotten so bad that articles written about it have been published in the Illinois State Bar Journal. A local attorney in my town, Scott Lerner wrote an article for the ISBA Journal (Nov. 2007). He describes how due to difference in Illinois’ Domestic Violence Act (IDVA) and Marriage and Dissolution of Marriage Act (IMDMA) an Order of Protection can be used as a sword rather than as a shield. He most cogently demonstrates how current statutes actually condone the abuse of IPV allegations.
Did you know that only 24% of child abuse allegations made by the mother against the father are substantiated when the allegation is made at the time of divorce? The same disparity between allegation and substantiation applies to domestic violence in custody and access disputes. In one seminal study DV allegations were made in 55% of the divorce cases against fathers. Of those allegations only 41% were substantiated.
With such disparities between allegation and substantiation you can see why many are tired of hearing about it. However, since it only takes one bad call the general sentiment is that “there is a need to err on the side of safety in these matters”. Even when no evidence is found to substantiate an allegation, family courts typically “err on the side of caution”. What it usually means is that custody is awarded to the one making the allegation and the accused usually ends up with restricted access to the children (if any access at all).
There is a problem when the courts go too far with ‘better safe than sorry’ mentality. At what point does this become ‘guilty until proven innocent’? At what point does this abrogate due process of law? A recent NJ Superior Court ruling echoed the concerns regarding the adjudication of IPV allegations, especially in how far can the courts go with a ‘better safe than sorry’ attitude before conflicting with basic constitutional rights. That court said that the current standard of proof, Preponderance of Evidence, violates the 14th Amendment Due Process Clause in cases involving the issuance of Orders of Protection. The court said that the standard of proof must be raised to Clear and Convincing Evidence.
We need to raise the standard of proof in domestic violence cases. We also need to give more teeth to penalties for false allegations. Illinois 98th Assembly introduced HB1019 providing tougher remedies for false child abuse allegations made to manipulate the court. We need similar proposals for false domestic violence allegations.
Second, we need to stop looking at DV in a unitary fashion where no distinctions are made. I’ve been following the work of many like-minded practitioners who want to reform the domestic violence system. The group advocates for gender-inclusive and evidence-based policies and seeks to correct the many damaging laws and policies which have been based on misleading claims. They see that not all DV is alike, and appropriate intervention must vary with the specific dynamics resulting in violence. The most common form of domestic violence involves couples who are unable to resolve the conflict associated with the stresses of life. The least common is what is commonly associated with wife battering where one controls the other through a variety of means both physical and psychological. Unfortunately, intervention approved by the court is designed to deal with the latter type of dynamics. This is why most interventions are ineffective.
Finally, we need to see something done to assess an allegation. A temporary order is issued based on the sworn testimony of the petitioner. A plenary hearing is usually scheduled 21 days later. During that time no assessment is required to determine the veracity of the allegations. The Judge at plenary has the exact same information that resulted in the temporary order. What do you expect the outcome will be?
An order to both parties must be issued for assessment. The past 10 years has resulted in the development of assessment tools that have shown to be quite effective. The latest version of the Conflict Tactics Scale is able to measure the prevalence, frequency and severity of domestic violence in regards to physical assault, injury, psychological aggression and sexual coercion. The findings presented by assessment will give the court more information regarding the case than what it had originally. This is one way to separate the genuine from the chaff.
These are a few observations. I hope that their implementation will keep the court free from the deluge of those “crying wolf” for nefarious reasons. This will allow the court to deal with the real and serious cases that occur. We can no longer throw the baby out with the bathwater without seriously impacting our children. To have a child denied the companionship of a loving parent without real reason is tantamount to child abuse. My suggestions should also result in interventions that are appropriate and effective. Perhaps then we can claim that we are solving the problem.