last updated May 2019

Like prosecutors and police officers, judges play important roles in the legal system's response to domestic violence. Judges are generally the final authority in civil and criminal matters involving domestic abuse, and therefore hold substantial power to sanction batterers, protect battered women, and send messages to the community, the victim, and the batterer alike that domestic violence will not be tolerated.

Moreover, judges, like prosecutors and police, are a critical part of an inter-agency response. Coordination of judicial responses with those of other actors in the legal, medical, and advocacy communities can avoid inconsistent responses that undermine victim safety and batterer accountability.

To the extent judges are able to make choices regarding sentencing or other aspects of the criminal trial, these choices may be influenced by myths about domestic violence. Effective judicial responses to domestic violence can, however, further victim safety and batterer accountability in many ways. In the courtroom, judges are enforcers and interpreters of existing laws; they may also have the ability to establish courtroom policies and procedures that promote victim safety and are respectful of all parties. Outside of the courtroom, judges are often community leaders, and can play vital roles in the effort to eliminate domestic violence.

Advocates can work to improve judicial responses to domestic violence in a number of ways. Court monitoring, for example, helps to systematically identify needed improvement in judicial responses and also increase the visibility of these issues; the presence of monitors in courtrooms can itself cause judges to improve their handling of domestic violence cases. Trainings for judges can provide judges with the information they need to better address the needs of battered women and ensure batterer accountability. Finally, dedicated courts and court processes can also help ensure batterer accountability and victim protection by streamlining navigation of the court system, increasing victims' access to resources, and ensuring a greater expertise of the judges and other personnel addressing these issues.

Enforcing Laws

Judges can protect victim safety and increase batterer accountability by enforcing existing laws promply and consistently. In many countries, general criminal laws for assault are the only means available for sanctioning a batterer. Judges can enforce the existing laws by treating assaults committed by partners as serious crimes. This applies to the enforcement of civil orders for protection, where these are available. Research indicates that even a short time in jail for violations of protection orders highlights for the abuser the seriousness with which the legal system will treat domestic abuse.[1] On the other hand, giving abusers “second chances” endangers the victim and sends a message to both abuser and victim that the protection order will not be enforced.

Judges can also inform batterers when the protection order is issued that violations will be punished. Research indicates that pairing the order with a verbal warning not only increases the likelihood that the batterer will comply with the order, but also communicates to the victim (and to all others in the courtroom) that she has a right to be free from violence and that the community will not tolerate domestic violence. Judges can also alleviate some of the threat of retaliation by emphasizing that the issuance of a protection order is the responsibility of the court, not the victim—thus also making clear that the abuse is not a "private" matter but rather a community concern.

Exercising Discretion

While prosecutors may have the authority to determine the charges brought against a defendant, judges may be able to choose among different penalties. Different sentences may be called for in different contexts. For example, a monetary fine is often borne by the family of the abuser; as a result, restitution—orders to the abuser to pay the victim for lost wages, destroyed property, or medical expenses—may be more appropriate.[2] In some countries, such options may not be available. In these situations, creative approaches may be necessary to fashion a remedy that ensures the safety of the victim while sanctioning the batterer.

Judges may also have discretion in family law matters. Divorce is one of the only forms of legal relief available to battered women in many countries. But when it requires or involves mandatory mediation that not only places them in danger of retaliation from the batterer, but may provide the batterer with opportunities to intimidate and coerce.[3] To the extent a judge has discretion in requiring mediation, setting the length of time allotted to mediation, or granting a divorce, judges should exercise this discretion carefully. The dangers faced by victims in attempting to leave a relationship should be recognized and reflected in any judicial ruling.[4]

Finally, judges may have the authority to make decisions about applications for pretrial release. Victims of domestic violence are most vulnerable when they attempt to leave a relationship; thus, judicial decisions should be based on the risk posed by release to the victim.[5] In criminal cases, judges may be able to deny release, impose conditions on the release, or issue a no contact order to ensure that the abuser does not attempt to retaliate against the victim.

Establishing Policies and Procedures

Judges may have the authority to establish courtroom policies and procedures that can enhance victim safety. Batterers may attempt to intimidate or even harm victims in the courtroom or on the way to or from the courthouse.[6] Judges may be able to ensure that victims are provided with a separate waiting area; they may also be able to offer to send an escort with the victim to her mode of transportation, or require the batterer to delay his departure to ensure that he does not follow or attack her. Metal detectors can be set up at courthouse entrances to screen for weapons.

Judges may be able to establish policies or issue orders that require victims to be notified prior to a defendant's release. Women are in significant danger of stalking and retaliatory violence after they seek to use the legal system to protect themselves from abuse.[7] Notifying a woman that her batterer is about to be released can provide her with the time she will need to plan for her safety.

Courthouse policies and procedures can also be revised to enhance victim access. Courts can create emergency hours, establish multiple locations at which victims can file for orders for protection, offer multilingual services when necessary, and ensure that the courthouse and courtrooms are accessible for people with disabilities. Judges may be able to streamline courthouse procedures through the development of common forms, checklists, and protocols, to shorten the time required to obtain relief.

Demeanor

Judges can also affect victim safety and batterer accountability through their demeanor. When seeking assistance through the legal system, many victims fear retaliation from the abuser, intimidation by an unfamiliar and complicated legal process, and disbelief by the presiding judge. Judges can counteract those fears by demonstrating a willingness to listen, taking the women's words seriously, and considering her needs. Judicial demeanor also sets the tone for the demeanor of other courtroom personnel. If judges treat domestic violence cases seriously, other criminal justice personnel are more likely to follow this lead.