When Courts Collide: Integrated Domestic Violence Courts and Court Pluralism
MacDowell, Elizabeth L., Texas Journal of Women, Gender, and the Law
Specialized domestic violence courts that integrate criminal and civil functions are often suggested by reformers as a way to improve court-based approaches to the problem of domestic violence.1 These reformers argue that a fragmented court system, in which a single incident of domestic violence can spawn multiple civil and criminal actions, makes it difficult for victims to access important legal remedies and leads to conflicting court orders, endangering victims and allowing perpetrators to evade accountability.2 Specialized, integrated domestic violence courts are purported to solve these problems by consolidating, to the greatest extent possible, civil and criminal dockets relating to domestic violence, with the paradigmatic integrated court assigning all related civil and criminal cases to a single judicial officer.3 However, reformers fail to show that integrating criminal and civil courts is necessary to solve problems identified with multiple forums. Moreover, recommendations for integrated domestic violence courts often ignore the fundamentally different purposes and characters of criminal and civil courts.
Broadly speaking, criminal courts are traditionally concerned with accountability to social norms rather than individual needs.4 As such, they serve a powerful educative function that is strengthened by the application of consistent policies and procedures.5 The significance of applying these principles to domestic violence - a major social problem that was by turns condoned or disregarded by the American justice system until the latter part of the twentieth century - has been especially profound, although subject to controversy and critique from both within and outside the feminist antidomestic violence movement.6
While civil courts may share the norm-setting function of criminal courts with respect to domestic violence,7 in contrast to the criminal justice system, the civil system is characterized by relative flexibility and individual discretion.8 Unlike criminal courts, where state interests generally govern, civil courts are accessed voluntarily by victims of domestic violence, who determine when and how to present their cases and what remedies to seek within the confines of the law.9 On the other hand, the individualistic bent of civil court lends itself to less formal legal procedures, especially in the family courts where victims will most likely seek assistance, and to a de-emphasis of accountability for perpetrators.10
From the perspective of victims of domestic violence, the fundamentally different cultures and functions of the criminal and civil courts each carry their own advantages and pitfalls. Integrating these courts into a single, specialized domestic violence court will inevitably alter the nature of each. Integration, then, raises a number of important questions, including: Which court features will predominate and to what effect? To the extent each court system offers potential advantages and pitfalls, will integrated courts be an improvement, or will the strengths of each be compromised or lost? Moreover, are these risks worth taking?
In the absence of uniform practices or reliable data on existing integrated courts, exploring these questions requires analyzing both the ideals and the drawbacks of both systems.11 Recent legal scholarship continues a tendency to focus on critiques of the criminal justice system's response to domestic violence,12 failing to ask the crucial question: as compared to what? Problems experienced by victims of domestic violence in civil forums have been extensively documented.13 But problems beyond those purportedly relating to court fragmentation are rarely acknowledged by advocates of integrated courts.14 Other scholars have idealized civil forums for the relative autonomy and choice available to victims seeking resolution of their legal claims. 5 Both perspectives obscure the costs victims of domestic violence suffer as a result of the relative informality of civil forums such as family court. …