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Mills, Alice; Thom, Katey; Meehan, Claire; Chetty, Marilyn --- "Family Violence Courts - a review of the literature" [2013] NZLFRRp 6

Last Updated: 22 March 2021

Citation: Mills, A.; Thom, K.; Meehan, C. and Chetty, M. (2013). Family Violence courts: A Review of the Literature. Auckland: Centre for Mental Health Research.

This publication would not have been possible without the funding assistance and more general support provided by The New Zealand Law Foundation.

Published in November 2013 by the Centre for Mental Health Research

Faculty of Medical and Health Sciences, University of Auckland, Private Bag 92 019, Auckland, New Zealand.

Table of Contents

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Introduction

Family violence1 is major social problem facing New Zealand. Roughly half of all homicides and 58% of all reported violent crime between 2010 and 2011 were the result of family violence. Child abuse is also significantly high in New Zealand, with infants less than one year old most at risk of being killed by a family member (seven times more than the national average) and around one in four girls having experienced sexual abuse. One in three women will have experienced physical or sexual violence from a partner in their lifetime and during 2010 the courts dealt with around 20 prosecutions of assaults on women by men each day (for further information see www.areyouok.org.nz and www.nzfvc.org.nz). Higher rates of intimate partner violence occur amongst Māori as victims and perpetrators, which some understand is exacerbated by exposure to socio-economic factors and family histories of violence (Boshier, 2011).

Traditional criminal justice system approaches have been criticised for their lack of responsiveness to the unique circumstances of family violence. It has been argued that legal systems have failed to hold offenders accountable for their acts of violence, while simultaneously creating too many barriers to allow for effective participation by victims (Fritzler & Simon, 2000). In response to these criticisms, various criminal justice initiatives have been developed to better respond to family violence. This has included changes in police processing of family violence crimes and the development of outreach programmes, advocacy services, educational programmes and, increasingly, specialist family violence courts.

Specialist family violence courts share many of the defining features of other courts that fall under the umbrella of ‘problem-solving courts’, namely the one-judge, one-court, and the one- stop-shop approach to criminal offending that incorporates treatment options and education programmes. There are also some core elements of family violence courts that set them apart from other problem-solving courts, including the dual focus on victim safety and offender accountability. Family violence courts are now considerably widespread, with New Zealand alone having eight of these courts (Boshier, 2011).

This review focuses on the existing evaluation research on specialist family courts that has taken place primarily in Commonwealth jurisdictions and, to a lesser extent, the United States. The review begins with a brief overview of the development of family violence courts and then considers existing evaluations, highlighting the methodological approaches used and the key findings. The review concludes by considering the contributions of the existing research for future evaluations of family violence courts.

1 While still commonly referred to as domestic violence, increasingly ‘family violence’ is the overarching term being used to refer not just to intimate partner violence, but also child abuse, elder abuse and sibling abuse (Baker & Jaffe, 2003, p. 3) and this can include physical, sexual, emotional and psychological abuse. The term ‘family violence’ is growing in usage but currently much of the research and relevant programs use the term ‘domestic violence’, and these terms are sometimes used interchangeably. In this review, we use family violence unless referring to specific courts that are entitled ‘domestic violence courts’.

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Background

2.1 The development of family violence courts

Family violence courts first emerged on the scene within the United States. The first domestic violence court opened in 1987 in Massachusetts (Wolf, 2005) and, in 1996, the integrated domestic violence court model was introduced in New York State. This latter model, which seeks to address both criminal and civil elements of domestic violence cases, influenced many of the specialist family violence courts in operation today (Mazur & Aldrich, 2003). As of 2009, there were 208 confirmed domestic violence courts in the United States (Labriola, Bradley, O'Sullivan, Rempel, & Moore, 2009), with more recent estimates suggesting at least 300 are in operation today. New York State alone currently has over 60 of these courts.

Despite the influence of the early New York State model, there is no agreed upon set of principles, structure or functions of these courts. In many jurisdictions, for example, family violence courts have been set up as programs within existing district court equivalents, while in others, specific legislation has been enacted to establish such courts. It has been suggested the legislative backing provides a solid foundation for the implementation and operation of the family violence courts (Stewart, 2005). Some courts deal exclusively with criminal matters and others focus on criminal and civil matters (e.g. dealing with visitation, custody and protective orders).

Generally, however, there are four key models of domestic violence courts described in the literature (Center for Court Innovation, 2007). These include:

1. Multi-jurisdictional domestic violence courts are overseen by one judge that handles criminal cases and overlapping family law and divorce cases.
2. Criminal domestic violence courts handle criminal cases with an adult defendant and an adult victim involved in an intimate relationship.
3. Civil/family domestic violence courts cover cases where a victim file a restraining/protection order against a defendant who is a current or former intimate partner, as well other cases involving the victim and the defendant.
4. Juvenile domestic violence courts consider cases where the defendant is a juvenile.

In addition, some recent courts have begun looking at how to apply best practice approaches of existing domestic violence courts to indigenous communities. Barnimalgu Court is a specialist aboriginal court that operates out of a magistrate’s court and handles aboriginal family and domestic violence cases (Stewart, 2011). In the United States, Native American tribal courts handle domestic violence cases using approaches aligned with traditional perspectives of justice and dispute resolution that aim to show accountability in a restorative way (Shanafelt, 2013). Instead of imposing a short jail sentence, for example, the Northern California Tribal Court Coalition Domestic Violence Court requires the offender give up fishing rights or donate their catch to the community. Please refer to our accompanying report in this series focused on indigenous courts which references indigenous courts that consider family violence issues (See Black, Kidd, Thom, & Meehan, 2013).

2.2 Core features of family violence courts

Family violence courts, like other specialist courts, generally take a coordinated and ‘whole- system approach’ to adjudication with the overall aim of promoting individual and social change (Mirchandani, 2006). Berman and Feinblatt (2001) identified further core characteristics of family violence courts similar to other problem-solving courts, including their focus on

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tangible outcomes, system change, judicial monitoring and collaboration. It is important to note that family violence courts also have a number of features that set them apart from other problem-solving courts, namely the focus on victim safety and offender accountability. This is a reflection of the two basic principles of family violence courts to facilitate “early intervention for low risk offenders and vigorous prosecution for serious repeat offenders” (Tutty, Koshan, Jesso, Ogden, & Warrell, 2011, p. 20).

An overview of twenty years of domestic violence courts (Moore, 2009) in the United States and Canada found that family violence courts share the common goals of:

• Efficient case processing
• Coordinated, multi-agency responses
• Informed decision-making
• Promotion of offender accountability
• Reduction of recidivism
• Ensuring victim safety and providing support services

Therapeutic jurisprudence, the philosophy that underpins many problem-solving courts, also directs family violence courts’ attention towards not just the circumstances surrounding domestic violence and the impact on victims, families and communities, but also the potential beneficial and harmful impacts of justice intervention itself (Fritzler & Simon, 2000).

Most family violence courts have a multidisciplinary team that is overseen and directed by the specialist judge. The judge presiding over the court has an expanded role compared to judges in traditional criminal courts, acting in a leadership role (Newmark, Rempel, Diffily, & Kane, 2001) and sometimes solely presiding over a family violence court. In addition to adjudicating the cases, the judge also acts as enforcer, manager and leader, and plays a key role of monitoring and supervising court participants’ progress and promoting positive behavioural changes in participants (King & Batagol, 2010). The power of judicial authority has been argued to carry some weight in holding offenders accountable and seeing justice done for the victims of domestic violence (Fritzler & Simon, 2000).

Other team members also play an important role. An essential component of the family violence court team, for instance, is the court coordinator. The coordinator is involved in all aspects of the court processes, from intake and assessment procedures, liaising between the court, relevant agencies and the community, acting as a key source of information and contact person for victims, developing court procedures, case management, as well as data collection and other evaluation procedures. Specialised frontline police officers who are trained in investigating domestic violence are also part of some family violence courts. In Australia, domestic violence liaison officers appear to serve different functions in different jurisdictions, from being a primary victim contact person, creating safety plans to coordinating cases and attending integrated case meetings (Australia Law Reform Commission & Law Reform Commission of New South Wales, 2010, pp. 1515-1517). Prosecutor and defence lawyers are also required to have specialised knowledge of domestic violence, relevant laws and understand the non-adversarial nature of the family violence courts. While traditionally the defence lawyer’s role has been to vigorously defend clients, in the family violence court, the defence collaborate with the rest of the court team to meet the overall court objectives and take a more restorative and even victim- focused approach (Stewart, 2005). Probation supervision is often a component of family violence court sentences. This role, in some cases, is undertaken by specialist probation officers and involves the supervision of offenders and monitoring progress and sentence compliance.

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While the rest of the multidisciplinary team also at times work with the victims in providing information and support services, the victim advocate has a key role in the DV court and focuses solely on the needs of the victim. Family violence courts may also engage with different community providers to offer support services to victims and treatment for offenders. For example, the Waitakere Family Violence Court has had a long established relationship with Waitakere Anti-Violence Essential Services (WAVES) a network of community services organisations which respond to family violence.

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Evaluations of family violence courts

3.1 Profile of studies

In consideration of the large number of family violence courts currently in operation within the United States alone, this report largely considers family violence courts that have been subjected to some level of evaluation primarily within Commonwealth jurisdictions. We have included large scale evaluations of these courts within the United States to provide a general overview of studies conducted in this country. Courts considered in this review are outlined below.

New Zealand

• Auckland Family Violence Court
• Manukau Family Violence Court
• Waitakere Family Violence Court

Australia

• Campbelltown Domestic Violence Court
• Wagga Wagga Domestic Violence Court

Canada

• Battleford Domestic Violence Treatment Options Court
• Manitoba Family Violence Court
• Saskatoon Domestic Violence Court
• Ontario Domestic Violence Courts (in each of its 54 jurisdictions)
• Calgary’s HomeFront Domestic Violence Court
• Calgary Specialized Domestic Violence Trial Court
• Yukon Domestic Violence Treatment Option
• Duncan Domestic Violence Court

United Kingdom

• Cardiff Specialist Domestic Violence Court
• Derby Pilot Specialist Domestic Violence Court
• Leeds Specialist Domestic Violence Court
• West London Specialist Domestic Violence Court
• Wolverhampton Pilot Specialist Domestic Violence Court
• Croydon Integrated Domestic Violence Court
• Glasgow Domestic Abuse Court

United States

• Rochester, New York Domestic Violence Courts
• Bronx, New York Domestic Violence Courts
  

Table two (see appendix one) provides a summary of specific evaluations of existing family violence courts. Those reviewed were thought to be the key reports in this area that were available to the authors. It shows that the majority of the evaluations completed have been single-site process evaluations. Although these kinds of evaluations contribute significantly to improving the operation of family violence courts, they tell us less about the impact of family

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violence courts. There are, however, some multi-site evaluations and quasi-experimental evaluations that provide information of the outcomes of family violence courts.

3.2 Thematic analysis of the evaluation literature

The findings from the evaluation research literature can be broken down into a number of themes which examine the effectiveness of various aims and elements of the courts.

3.2.1 Improving offender accountability

One of the main aims of family violence courts is to ensure that offenders are brought to justice and held accountable for their actions. This can be done in several ways such as by increasing the rate of convictions through effective evidence gathering, reducing the number of cases in which the prosecution offered no evidence and expediting cases to minimise victim retractions and case attrition. Another way victims can be better protected and offenders held accountable is by encouraging early guilty pleas. This ensures that victims do not have to go through a defended trial process and may be done by suggesting that offenders will receive a more lenient sentence than would otherwise be the case. Since their introduction specialist family violence courts have been relatively successful in increasing the proportion of early guilty pleas (Tutty, et al., 2011; Wilkinson & Davidson, 2008). Over 60% of cases in the Waitakere Family Violence Court involved an initial guilty plea (Coombes, Morgan, & McGray, 2007), and increasing numbers of defendants were pleading guilty or being found guilty at trial in domestic violence court pilot sites in Caerphilly and Croydon (Vallely, Robinson, Burton, & Tregidga, 2005). This latter court also had fewer cases that were discontinued or involved prosecutors offering no evidence. However, just 32% of defendants in Cook et al’s (2004) study pleaded or were found guilty.

3.2.2 Expedition of Cases

Family violence courts aim to resolve cases through plea or jury trial promptly after initial appearance before the court. This is based on the understanding that procedural delays may allow offenders the opportunity to assault, coerce, manipulate or intimidate victims and witnesses before the trial process (Morgan, Coombes, Te Hiwi, & McGray, 2007; Morgan, Coombes, Te Hiwi, & McGray, 2008), leading victims/witnesses to retract their evidence. Ensuring cases are dealt with promptly can also enable offenders to be referred to treatment quickly which may increase its potential effectiveness (Tutty, et al., 2011). The research evidence for whether domestic violence courts process cases faster than the traditional courts is mixed. In a number of jurisdictions, research findings have indicated faster adjudication of cases, particularly if an integrated, coordinated response to domestic violence is used (Cook, et al., 2004; Hoffart & Clarke, 2004; Reid Howie Associates, 2007; Vallely, et al., 2005). In Domestic Violence Courts in England and Wales, for example, specialist police focus on investigating domestic violence cases and providing evidence to the courts in a timely manner which has contributed to faster case processing. In the Cardiff Domestic Violence Fast Track Process, domestic violence procedures typically lasted just seven weeks with standard court procedures lasting 14 (Cook, et al., 2004). In the Caerphilly domestic violence pilot site, case finalisation was achieved more quickly, and victim retractions declined substantially from 53% pre-pilot to 27% post-pilot (Vallely, et al., 2005). The Homefront Evaluation in Canada reported that 86% of defendants had their cases resolved within two adjournments (17 days). In contrast, most having their case heard at traditional courts had their cases resolved two months after three or four adjournments (Hoffart & Clarke, 2004).

However, other aspects of family violence courts may mitigate against the expedition of cases. Deferring sentencing to allow an offender to complete a perpetrator programme may lead to substantial delays as court appearances to monitor progress on such programmes can block up the court schedule (Coombes, et al., 2007). In New Zealand, family violence court guidelines

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state that domestic violence charges should be heard and determined within 13 weeks (Ministry of Justice, 2008). This was achieved in just 31% of cases in Waitakere in comparison to 70% at Manukau, and this is likely to be a consequence of the more intensive offender monitoring processes that take place at Waitakere Family Violence Court (Knaggs, Leahy, Soboleva, & Ong, 2008).

Findings from qualitative evaluations have questioned the value of processing cases quickly in family violence courts. Cook et al., (2004) found the first month of case progression is vital as those victims who do retract tend to stay with the criminal justice process on average for about a month after charges have been laid. Others, however, have noted that victims often retract within three or four days (Wilkinson & Davidson, 2008), potentially limiting the efficacy of fast tracking initiatives. Furthermore, moving a case through the courts speedily may not always have positive outcomes as victims may need time to benefit from any support the court can offer which may not be available after the court process (Cook, et al., 2004).

3.2 3 Sentencing Outcomes

In bringing offenders to justice, one of the objectives of family violence courts is to impose sanctions that amply demonstrate the seriousness of domestic violence. A number of specialist courts, notably those in England and Wales, have continued to favour fines and other monetary penalties despite a range of disposals available (Cook, Burton, & Robinson, 2005; Cook, et al., 2004; Vallely, et al., 2005). The use of monetary penalties has been seen as minimising the culpability of the offender (Morgan, et al., 2007) thereby affecting the courts ability to meet their aims of reinforcing the seriousness of domestic violence. Furthermore, the imposition of fines may not consider the financial circumstances of the offender or their family and they could end up being paid out of a joint account, effectively punishing the victim. Several research studies have shown high levels of victim dissatisfaction with monetary penalties as they do nothing to tackle with the offender’s problems that led to their offending in the first instance (Cook, et al., 2004; Vallely, et al., 2005). In the Glasgow Domestic Abuse Court where probation was the most common disposal and conditions such as attendance at perpetrator programmes or substance misuse counselling were widely used, probation had the highest level of victim satisfaction of any disposal (Reid Howie Associates, 2007).

In some jurisdictions, notably Canada and New Zealand, offenders may be offered the chance to escape a criminal conviction if they accept responsibility for the offence and successfully complete a court mandated treatment programme. In Calgary’s Specialised Domestic Violence Court, offenders who indicate that they are willing to take responsibility for the incident or who plead guilty, and have no criminal record and have committed only a minor offence, may have the charges withdrawn and be given a Peace Bond instead. Such bonds often come with conditions such as the completion of treatment programmes or attendance at mental health or substance misuse interventions, and can allow offenders to receive treatment speedily when they are more motivated to make changes in their behaviour (Tutty, et al., 2011). Compliance with these conditions is monitored by the probation services which should sanction any breaches. Tutty et al., found that the use of Peace Bonds had risen from just 8.1% of cases pre- implementation to 32.3% post-implementation of the fast track docket court (Tutty, et al., 2011). Similarly, New Zealand courts may issue a ‘Section 106 discharge without conviction’ when the offender enters an early guilty plea and has committed a minor offence. Such cases are monitored by judges before a discharge is issued and are usually dependent on the offender successfully completing a family violence programme. Discharges are heavily used in New Zealand family violence courts. In Manukau Family Violence Court 15.9% of offenders were given a Section 106 in comparison to just 1.5% before the introduction of the court (Knaggs, Leahy, & Soboleva, 2008). In the first three months of the Auckland court operation, 71% of cases were given a recommendation that they complete a treatment programme with an

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indication that this will result in a Section 106 discharge without conviction (McKenzie & Carrington, 2007).

However, Peace Bonds and Section 106 discharges are not without controversy and represent a site of tension between the two goals of family violence courts to promote offender accountability and ensure victim safety. They may be valuable in coercing guilty pleas and establishing relationships between the judge and defendants to enable more effective social intervention during judicial monitoring (Morgan, et al., 2007), but they may also endanger the safety of victims. As there is a lack of visible or lasting consequences for the offender, they also risk sending a clear message to offenders, victims and the public that family violence is not taken seriously (McKenzie & Carrington, 2007; Morgan, et al., 2007). Measures such as Peace Bonds may also prolong the court process for victims if offenders are unable or unwilling to complete programmes in a timely manner (McKenzie & Carrington, 2007). Furthermore, family violence rarely consists of a one-off incident or series of discrete events but more usually takes the form of on-going patterns of abuse which is rarely adequately addressed (Robinson and Cook 2006). Without a record of convictions, it is more difficult to hold offenders accountable in the context of patterns of such on-going violence (Coombes, et al., 2007). In the Calgary Domestic Violence Court evaluations the use of Peace Bonds was strongly criticised for not requiring an admission of guilt, not resulting in a criminal record and, therefore, not emphasising defendant’s taking responsibility for his/her actions (Hoffart & Clarke, 2004; Tutty, et al., 2011). Hoffart and Clarke (2004) have suggested that further research is needed into whether conditional release discharges may be a more appropriate option, although their evaluation also indicated that Peace Bonds resulted in decreased re-offending rates even for high risk cases, facilitated quick linkages with treatment and lower dropout rates.

3.2.4 Treatment Programmes

In order to encourage offenders to take responsibility for their violence and reduce the risk of recidivism, offenders may be required to undertake court-mandated domestic violence treatment or batterer programmes, either as a condition of probation supervision or protection orders, or in return for escaping a criminal conviction (see section 3.2.3). Batterer intervention programs aim at changing the attitudes and behaviours of perpetrators of domestic violence, who often minimize the violence or redirect the blame for the violence on the victims. Many are based on the Duluth Curriculum2 and follow a cognitive-behavioural approach (Tutty, et al., 2011).

Evaluation studies have revealed a number of barriers may restrict the use and efficacy of treatment programmes as a court-mandated intervention. Firstly, in some jurisdictions, notably the UK, such programmes are not readily available which may contribute to a persistent reliance on monetary penalties (Cook, et al., 2004; Reid Howie Associates, 2007). Secondly, research in New Zealand has demonstrated how limited funding for programmes may affect completion rates. If offenders are tasked with completing a course as a condition of probation supervision or a protection order, the probation service or Family Court will provide funding. If they are not under such supervision but ‘self-refer’ to the programmes with the aim of completing them in exchange for leniency at sentencing, the cost of the course falls to the offender themselves. Often offenders cannot pay and consequently community programme providers are put under considerable financial stress resulting in offenders not completing the

2 The Duluth model seeks to hold offenders accountable and keep victim safe. Programmes using this model will place accountability for the abuse on the offender, believe that family violence is a pattern of action sued to intentionally control or dominate an intimate partners and seeks to change societal conditions that support men’s use of tactics of power and control over women (Domestic Abuse Intervention Programmes, 2011).

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programme. This has had considerable consequences for the Manukau Family Violence Court which has previously been forced to schedule extra days for return such cases to court, where the judge may be left with no choice but to convict an offender to enable them to obtain funding to complete the course (Knaggs, Leahy, & Soboleva, 2008). Alternatively, victims may themselves end up paying for the cost of the courses through the family finances (Morgan, et al., 2007). Thirdly, stakeholders in an evaluation of the Manukau Family Violence Courts noted that although cognitive behavioural-based programmes generally require participant suitability for the course to be thoroughly assessed, such assessments have not taken place (Knaggs, Leahy, & Soboleva, 2008). Finally, the research literature has also raised concerns about the difficulties of trying to ensure that offenders actively engage in and commit to these programmes (Cook, et al., 2004). Attendance and completion of these programmes are insufficiently monitored with some offenders being sentenced or even discharged before they have completed the course. Unless offenders are under probation supervision, judges may not receive information about the offender’s progress or even their attendance (Knaggs, Leahy, & Soboleva, 2008; McKenzie & Carrington, 2007).

Given the centrality of perpetrator programs, it is unsurprising that questions arise around the efficacy of these programs in reducing recidivism. Although Tutty et al. (2011, p. 31) suggest that ‘generally domestic violence researchers agree that batterer intervention programmes have at least a small effect at reducing re-abuse’, conclusive research evidence to support the idea that batterer programs reduce domestic violence is lacking, potentially indicating a substantial weakness in the operation and effectiveness of these courts. Yet a study involving a sample of over 1000 men participating in batterer programs found “no statistical association at all between programs and an offender’s likelihood of re-offense” (MacLeod, Pi, Smith, & Rose- Goodwin, 2009, p. vi). A randomized trial where offenders were allocated into: a batterer program with monthly judicial monitoring; a batterer program with “graduated” monitoring, monthly monitoring only; or graduated monitoring did not find any reduction in rearrests for those assigned to batterer programs (Labriola, Rempel, & Davies, 2005).

Two studies have found that men who completed perpetrator programmes had lower reoffending rates than those who did not (Coombes, et al., 2007; Hoffart & Clarke, 2004). However, victims suggested that defendants were motivated into attending treatment programmes with the promise of a lighter sentence, but were not motivated to change their behaviour and often reacted to having to attend such programmes with anger and violence (Morgan, et al., 2007). Sixty-nine per cent of partners in the HomeFront evaluation described their sense of safety as staying the same, with 21% reporting enhanced safety (Hoffart & Clarke, 2004).

Interviews with offenders about the programmes they had been tasked with completing indicated many felt they had had a positive impact on their behaviour (Reid Howie Associates, 2007); they have learnt useful skills and had made important changes in their understanding of anger, stress and their behaviour (Tutty, et al., 2011); and experienced less clinical symptoms of anxiety, stress and depression (Hoffart & Clarke, 2004). However, in Tutty et al. (2011) most of the men also felt they had been victimised by the criminal justice system which was felt to be biased against men, with none acknowledging that their experiences occurred as a consequence of their actions even after they had completed the programme. The authors concluded that the men exhibited a willingness to blame their partners and minimise their own abusive behaviour. Tutty et al. (2011) cautions against the assumption that changes in batterer’s attitude will necessarily translate into a reduction in violence with more research needed to examine any connection between them.

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3.2.5

Coordinated Community Responses

All the courts included in this review had developed strong collaborative multi-agency relationships to enhance liaison and information-sharing to create positive justice outcomes. Such relationships could enable the availability of better information facilitated earlier and more informed decisions, leading, ultimately, more convictions, even where victims retracted their accusation (Vallely, et al., 2005). Hoffart and Clarke (2004) in their study of the Home Front Domestic Violence Court in Calgary, found improved collaboration and co-ordination among court partners and the community. This is consistent with Cook et al’s (2004) findings in England and Wales. Cussen and Lyneham (2009) further found that the ACT Family Violence Intervention Programme in Australia promoted effective inter-agency relationship building and increased public awareness.

3.2.6 Victim safety and participation

Ensuring victim safety is one of the key aims of family violence courts across jurisdictions. This may be done through court processes which enable and encourage victim participation but which are also sensitive to the position of the victim and how on-going relationships with offenders may influence their cooperation. Fifty per cent of victims in five domestic violence courts in England and Wales retracted their statements, the most common reason for a case failing to proceed (Cook, et al., 2004). This was due to living in fear of the offender and/or his family, problems with accessing children, finding safe housing and misperceptions of court processes. Victims at the Waitakere Family Violence Court indicated that family violence court processes can help to make victims feel safer but also identified times which were likely to provoke anger and violence from the offender, usually after arrest and whilst attending court (Morgan, et al., 2007), as confirmed by reported re-offending rates which peaked in the three months following arrest, and in the month before and after sentencing (Coombes, et al., 2007). In order to maximise the chances of cases successfully proceeding through the courts, no-drop prosecution policies have reduced prosecution reliance on victims and in some jurisdictions, police have been encouraged to find evidence for the prosecution other than victim testimony, such as witness statements, photographs and forensic evidence (Cook, et al., 2004; Vallely, et al., 2005).

In general the family violence court model prioritizes both the needs and participation of victims. Systems and procedures have been developed in these courts that aim to place the victim at the heart of the process (Cook, et al., 2004). However, whilst victim participation may be promoted as a way of empowering victims, it may increase the risk of retaliation. Attending court may put the safety of the victim at risk and most are highly likely to feel constrained in what they can safely say in front of their abuser in a public situation (Knaggs, Leahy, & Soboleva, 2008; McKenzie & Carrington, 2007).

Some courts have sought to ensure that criminal justice processes do not re-victimise victims (Tutty, et al., 2011). The Waitakere Family Violence Court and specialist domestic violence courts in the UK, for example, involve victim advocates who have the power to speak in court on the victim’s behalf in an attempt to reduce the risks faced by victims attending court and encourage their continued participation in court cases (Cook, et al., 2004; Morgan, et al., 2007). They may also help victims to prepare victim impact statements and pass on information to victims about the progress of the case, thus alleviating the need to attend court and reducing any risks of intimidation. Advocates can provide on-going support and refer victims to other useful services (Knaggs, Leahy, Soboleva, et al., 2008). Several research studies have found that victims highly appreciated these advocacy services, explaining that such support had helped them make difficult decisions to proceed with cases and lead to higher levels of victim satisfaction, confidence and feelings of safety (Cook, et al., 2005; Cook, et al., 2004; Hoffart & Clarke, 2004; Morgan, et al., 2007; Reid Howie Associates, 2007; Rodwell & Smith, 2008; Vallely, et al., 2005; Wilkinson & Davidson, 2008).

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In addition to advocacy and assistance with court processes, family violence courts can provide a range of other support services to victims to meet their needs and enhance their safety. In Australian Capital Territory, the breath of services provided led to increased perceptions of victim satisfaction and safety (Cussen & Lyneham, 2009). In the Caerphilly Domestic Violence Pilot site, victims were given practical support in the form of new locks and panic buttons installed by a community organisation, and help from court victim support services to be rehoused, therefore increasing feelings of safety and potentially contributing to the significant decrease in victim retractions from 53% to 27% (Vallely, et al., 2005).

3.2.7 Recidivism Analysis

The research literature presents mixed evidence as to whether family violence courts are able to reduce reoffending. An evaluation of 24 New York Domestic Violence courts found a reduction in the rate and number of rearrests for any charges and for domestic violence charges amongst convicted offenders (Cissner, Labriola, & Rempel, 2013). Tutty et al.’s (2011) evaluation of the Specialized Domestic Violence Court in Calgary found that after two years the overall rate of new charges/breaches of conditions before the court was introduced was 33.9% which reduced to 18.9% after the introduction of a specialist fast track docket court and 26% following the start of the full domestic violence court, suggesting a decrease in reoffending. It should be noted, however, that the recidivism data is limited to those offences that came to the attention of the Calgary police. The Homefront evaluation reported similarly positive result with Homefront accused being less likely to commit new offences compared to the control group sample (12% to 34%), less likely to breach conditions of recognizance (6.1% to 17.6%), and at the 24 months follow-up period engaged in a lower number of no-charge incidents (31.4% to 48.9%). One finding that disrupted these positive results was the higher number of breaches of Peach Bond conditions by the Homefront sample (Hoffart & Clarke, 2004). The authors recognise this difference in recidivism patterns as an area for further consideration, however, both they and Tutty et al. (2011) noted that the strong focus on non-compliance in the specialist courts might warrant closer monitoring of such breaches than in regular courts.

In New Zealand, existing research suggest unfavourable results regarding the impact of family violence courts on recidivism. Overall family violence reconviction rates in Manukau rose by 4% with the introduction of the family violence court, and reconviction analysis for the Waitakere court showed no significant statistical difference (Knaggs, Leahy, Soboleva, et al., 2008). Similarly, a mixed-methods study of Battlefields Domestic Violence Court in Canada found no difference in recidivism outcomes between successful completion and non-completion (Boyes, 2008).

3.2.8 Cultural Issues

In addition to physical safety, concepts of safety extend ‘to incorporate concepts of cultural safety, threats to cultural identity, cultural appropriateness and cultural relevance’ (Department of Justice, 2009). The research evidence suggests that family violence courts have somewhat struggled to understand and meet the needs of victims from other cultures. Cultural barriers were cited as a key concern in the evaluation findings of the Calgary Specialized Domestic Violence Trial Court, as stakeholders felt that immigrants from patriarchal cultures could challenge the specialised justice response and cultural differences posed an additional barrier to victim understanding of and participation in criminal justice approaches. Furthermore, it was recognised that in some cultures severe consequences may be metered out to those victims who had engaged in the criminal justice by their husbands and by their families/wider communities as it could bring a sense of shame to the family. This could leave the victim further isolated from their usual sources of support and potentially leading them to stay with an abusive partner (Tutty, et al., 2011). Finally, several evaluations have noted the need for victim support provision for those victims whose first language is not English, including the need for suitably qualified, independent translators so victims are not dependent on members of their own or the

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defendant’s family for translation services (Cook, et al., 2004; Reid Howie Associates, 2007; Tutty, et al., 2011); Tutty et al. 2011). Diversity training was also recommended for justice personnel working at the Calgary Domestic Violence Court (Tutty, et al., 2011).

3.3 Limitations of the research evidence

Family violence courts, both internationally and in New Zealand, have now been established for a number of years. As they become more entrenched in the justice system, high quality research is needed to evaluate their successes and limitations. In particular, more research is needed to ascertain whether these courts do bring offenders to justice in a meaningful way that is respected by offenders, victims and the community alike. The current evidence is mixed as to whether family violence courts ensure victim safety or whether the risk of violence may be exacerbated by the nature of the specialist courts which brings offenders together with victims throughout proceedings. This section further outlines some of the methodological limitations of the existing research on family violence courts and makes suggestions for further research to strengthen the state of knowledge in this area.

3.3.1 Recidivism data

Reconviction studies can entail a number of weaknesses and inconsistencies which can substantially affect the results and make it hard to compare data. Firstly, researchers lack a common standard for measuring recidivism (Tutty, et al., 2011). Different data sources are used such as re-arrest records (even though an arrest may not lead to a conviction) and court records of convictions. Further, the follow up period over which any reoffending is monitored varies substantially and often start at different points in the court process. For example, studies may follow offenders from the point of sentencing, from the point offenders enter the court or after any treatment programmes have been completed. The majority of studies tended to follow offenders up for one to two years (with exception of Boyes (2009) who followed-up at 36 months). These kinds of follow-up periods may not be long enough to capture incidents of reoffending, particularly considering the time taken for offences to enter the criminal justice system. Reid Howie Associates (2007) admit that they could not reach any conclusion about the effectiveness of the Glasgow court in reducing recidivism due to it only being in operation for two years. Rather, they argue the the impact of the court is likely to be long term. A longer tracking period may be required to adequately evaluate and compare outcomes of various DV interventions. For example, Klein and Tobin (2008 cited in Tutty, et al., 2011) found that for family violence offenders, the average time to first arrest was 769 days and just over 13% of their sample did not re-abuse for the first time until after three years of their initial assault. They caution that short term measures may not adequately capture long term patterns of recidivism.

Secondly, it should be noted that many reconviction studies tend to treat recidivism as a dichotomous variable with no consideration given for a reduction in frequency or severity of offending (Tutty, et al., 2011). Hoffart and Clarke (2004) suggest using a broad definition of recidivism that allows for the incorporation of different kinds of recidivism, such as breaches, new offences and so on.

Finally, recidivism studies only include those offences known to criminal justice agencies. Morgan et al.’s (2007) in-depth study with a number of victims at the Waitakere court confirmed that many incidents of family violence do not get reported to the police and even when they do, the police do not always take action. This means that such incidents would not necessarily be recorded in the criminal justice system. Although it is important to note that some studies reviewed included investigations which did not result in charges and/or charges that did not result in convictions (Hoffart and Clarke 2004).

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3.3.2 Omission of significant groups from research

Another notable feature of many of the evaluation studies is the omission of certain groups. Few studies reviewed included offenders in their samples. As one of the key aims of family violence courts is to ensure that offenders are held accountable for their actions, this is a significant oversight. Whilst it may be difficult to access offenders for research purposes, without hearing directly from offenders about the value or otherwise of the family violence court process as well as the various services it may provide, such as treatment programmes, it is difficult to give a true assessment of their effectiveness.

Although most of the studies did include interviews with victims, these have predominantly been female victims who have been abused by their ex-partners/partners, leaving other forms of family violence which may be dealt with by the courts unexamined. Reid Howie Associates (2007) did include male victims who made up just 9% of their interview sample, but any gender differences between victims and their experiences were not noted. The number of victims involved in the existing evaluations was also small. The variance in experiences of family violence courts, therefore, has been limited to date.

Finally, whilst the studies generally represent the views of a broad range of stakeholders involved in the courts, the opinions of defence lawyers are noticeably lacking, even though they play a key role in the court process. Reid Howie Associates (2007) attempted to engage defence lawyers in their evaluation of the Pilot Domestic Abuse Court in Glasgow but received no response. The inclusion of this group in future research is crucial as evidence suggests that not all have bought into the approaches taken by family violence courts vis a vis regular courts. For example, offender interviews in Reid Howie Associates’ study revealed examples of defence lawyers seeking to undermine the court, to minimise the violence or voice inappropriate views of domestic abuse. In the Manukau Family Violence Court, many defence lawyers adopted a strong adversarial approach to the court proceedings and requested repeated adjournments thus delaying cases and subverting the aim of processing cases promptly (Knaggs, Leahy, & Soboleva, 2008).

3.3.3 Data concerns

The quality of research evaluation is significantly dependent on the quality of the available data. Data concerns within the studies reviewed hampered the ability to examine the effectiveness of family violence courts and their various components. Examples of data limitations within the research studies included inconsistent practices relating to compilation of data on monitoring of repeat victimisation and performance monitoring (Vallely, et al., 2005), and victim support (Hoffart & Clarke, 2004); poor quality data on access to treatment programmes (Hoffart & Clarke, 2004); and, substantial amounts of missing data on ethnicity of victims and defendants (Cook, et al., 2004; Wilkinson & Davidson, 2008). Furthermore, in their evaluation of five family violence courts, Cook et al. (2004) list nine different definitions of domestic violence used by different criminal justice and community agencies making comparisons between both between organisations and courts highly challenging.

Some studies only had small sample sizes which could affect the validity of the data. For example, the participants in Boyes’ study (2009) were more likely to complete the programme (57%) than self-referrals/ post-sentence referrals, but the sample was too small to reach statistical significance. The collection of consistent data at these stages for evaluation purposes is essential.

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3.3.4

Generalizability issues

The studies in this review offer useful insights into the operation and effectiveness of individual or jurisdictional family violence court initiatives, however, the specificity of these evaluations limits the generalizability of their findings. This is due to the lack of a uniform model of family violence courts which creates substantial challenges in generating comparable data.

A note of caution could also be sounded about inferring the impact of court processes, particularly on reoffending from statistical analyses of court outcomes. Many studies included in this review compare family violence courts with regular courts or compare court outcomes pre and post the introduction of family violence courts. Where outcomes have improved, such as a higher proportion of guilty pleas, it is often suggested that this is the result of family violence court initiatives. Such analysis, however, only indicates a correlation between the introduction of the court and these outcomes, rather than any causality. Without further research, particularly with offenders, it cannot be known with any certainty what has caused these effects.

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4

Conclusion

This review has found that the proliferation of family violence courts internationally has not been matched with a body of strong evaluation research. The lack of rigorous research has contributed to inconclusive and sometimes mixed results. Some of the general evaluation challenges identified from this review included lack of data, research design issues, and the absence of analysis focused on the cultural competency requirements for staff. It was evident that certain groups, for example defence lawyers, are omitted from the research evaluations. Stakeholders, such as defence lawyers, are an important part of the court and play a major role in ensuring court is respected by offenders. All stakeholders who are involved in the court need to be included in future research studies.

The effectiveness of family violence courts in protecting victims is difficult to ascertain but must be a core feature of future evaluation research in this area. New Zealand research indicated that although it appears family violence courts are successful in holding offenders accountable through coercing early guilty pleas, victims and victim advocates did not feel that the Waitakere Family Violence Court held offenders accountable or successfully changed their behaviour. This was particularly reported to be the case with offenders who demonstrated disdain for the court process and refusal to adhere to the law (Morgan, et al., 2007).

Current evidence has also failed to systematically illustrate declines in reoffending rates (Mills, 1998; Morgan, et al., 2007). In addition to recidivism, there is a clear need for research that examines the experiences of offenders and victims, to ascertain the difference that such courts make to attitudes, behaviour and feelings of safety. In particular, there is a need for more research to examine the views of offenders towards the courts and whether they recognise and respect any differences between family violence courts and regular courts. Matched cases could be useful as a method of checking the validity of self-report data which could then be compared with official reconviction data. With the inclusion of offenders in future research, aspects of perceived procedural fairness and the impact of judicial monitoring in encouraging offenders to desist from further offending could be analysed.

Finally, very little is reported on cultural issues, particularly cultural safety. More research focusing on indigenous populations and their experiences with the courts is timely.

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Appendix one: Table of studies

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