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Battered Mothers Speak Out: Participatory Human Rights Documentation as a Model for Research and Activism in the United States

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Violence Against Women
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Abstract

This article describes the work of the Battered Mothers' Testimony Project, a multiyear effort that documented human rights violations against battered women and their children in the Massachusetts family court system. This article (a) presents the Battered Mothers' Testimony Project's participatory human rights methodology as an alternative model for research and activism on violence against women and children in the United States, (b) summarizes the authors' findings and human rights analysis of how the Massachusetts family courts handled custody and visitation in specified cases involving partner and child abuse, and (c) discusses U.S. obligations under international human rights law and the value of a human rights approach to violence against women and children in the United States.
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Violence Against Women
http://vaw.sagepub.com/content/11/11/1367
The online version of this article can be found at:
DOI: 10.1177/1077801205280270
2005 11: 1367Violence Against Women
Kim Y. Slote, Carrie Cuthbert, Cynthia J. Mesh, Monica G. Driggers, Lundy Bancroft and Jay G. Silverman
Activism in the United States
Battered Mothers Speak Out : Participatory Human Rights Documentation as a Model for Research and
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10.1177/1077801205280270VIOLENCE AGAINST WOMEN / November 2005Slote et al. / BATTERED MOTHERS SPEAK OUT
Battered Mothers Speak Out
Participatory Human Rights Documentation
as a Model for Research and Activism in the United States
KIM Y. SLOTE
CARRIE CUTHBERT
CYNTHIA J. MESH
MONICA G. DRIGGERS
LUNDY BANCROFT
JAY G. SILVERMAN
This article describes the work of the Battered Mothers’ Testimony Project, a multiyear
effort that documented human rights violations against battered women and their chil-
dren in the Massachusetts family court system. This article (a) presents the Battered
Mothers’ Testimony Project’s participatory human rights methodology as an alternative
model for research and activism on violence against women and children in the United
States, (b) summarizes the authors’ findings and human rights analysis of how the Mas-
sachusetts family courts handled custody and visitation in specified cases involving part-
ner and child abuse, and (c) discusses U.S. obligations under international human rights
law and the value of a human rights approach to violence against women and children in
the United States.
Keywords:
child custody; domestic violence; human rights
My ex beat me when I decided to leave him. He stalked me and at
-
tempted to kill me. He had a lucrative drug business going on.
These were all facts I presented to the judges, child protective
workers, and family service officers, but they ignored the evidence
and my allegations of domestic violence. Because of this, I did not
regain custody of my two older daughters until the day my ex was
incarcerated for drug trafficking. (Testifier, BMTP Human Rights
Tribunal on Domestic Violence & Child Custody, May 9, 2002)
Everyone has the right to life, liberty and security of person. All are
equal before the law and are entitled without any discrimination to
equal protection of the law. (Universal Declaration of Human
Rights, Arts. 3 and 7).
1367
VIOLENCE AGAINST WOMEN, Vol. 11 No. 11, November 2005 1367-1395
DOI: 10.1177/1077801205280270
© 2005 Sage Publications
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OVERVIEW
Across the United States, battered women separate from their
batterers and enter the family courts seeking protection for them
-
selves and their children. Instead of receiving protection, many
report experiencing the unthinkable: The family courts award
custody or unsafe visitation of their children to the same men who
have used violence against them and, in many cases, against their
children as well (Arizona Coalition Against Domestic Violence
[AZCADV], 2003; California National Organization for Women
[CANOW], 2002; O’Sullivan, 2002; Supreme Judicial Court of
Massachusetts, 1989; Women’s Law Project [WLP], 2003). These
family court orders actively endanger women and children and
prevent women from protecting themselves and their children
from physical, sexual, and psychological abuse by the batterers.
In such cases, many women and children report being harmed by
the batterers in the context of these orders (AZCADV, 2003;
Bancroft & Silverman, 2002; Butts Stahly, 1999; CANOW, 2002;
Lemon, 2000; O’Sullivan, 2002; WLP, 2003).
In 1999, the Battered Mothers’ Testimony Project (BMTP) at the
Wellesley Centers for Women (WCW) began a 3-year study of
these problems in Massachusetts as well as of related problems
such as gender bias and denial of due process. International
human rights principles, strategies, and laws guided all aspects of
the project, including research, community organizing, and advo-
cacy. In 2002, the BMTP released Battered Mothers Speak Out: A
Human Rights Report on Domestic Violence and Child Custody in the
1368 VIOLENCE AGAINST WOMEN / November 2005
AUTHORS’ NOTE: The Battered Mothers’ Testimony Project (BMTP) was led by a six-
person steering committee (including a survivor who gave her testimony for the project):
Carrie Cuthbert, Kim Slote, Lundy Bancroft, Gillian MacMillan-Smith, Jay G. Silverman,
and Jacquelynne Bowman. The BMTP’s core team also included a research analyst,
Cynthia J. Mesh, and a policy analyst, Monica Ghosh Driggers. The BMTP team expresses
its heartfelt appreciation and gratitude to the many courageous survivors who gave their
time to share their testimonies with the BMTP. We also thank the many advocates and state
actors who participated. In addition, we are extremely grateful to our volunteer human
rights documenters, video production team, transcribers, the BMTP Advisory Board, and
other colleagues who provided guidance and support to the project. We extend particular
thanks to Susan Bailey and the Wellesley Centers for Women for their support and assis
-
tance. Finally, we are deeply grateful to the funders of the BMTP: the Ford Foundation,
Wellesley Centers for Women, Shaler Adams Foundation, Ms. Foundation for Women,
Oak Foundation, Claneil Foundation, Harold S. Benenson Memorial Research Fund,
Howell Family Charitable Foundation, Tiny Tiger Foundation, Dickler Family Founda
-
tion, Mary Joe Gaw Frug Memorial Fund, and Lovett-Woodsum Family Foundation.
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Massachusetts Family Courts (Cuthbert et al., 2002). The report
identifies six intersecting categories of human rights violations
committed by the Massachusetts family courts against battered
women and their children in the cases studied and concludes with
a series of detailed recommendations for reforming the family
court system to protect the human rights and enhance the safety
of battered mothers and their children.
In this article, we (a) present our project’s participatory human
rights methodology as an alternative model for research and
activism on violence against women in the United States, (b) sum
-
marize our findings and human rights analysis of how the Massa
-
chusetts family courts are handling custody and visitation in spe
-
cific cases involving partner and child abuse, and (c) discuss U.S.
obligations under international human rights law and the value
of a human rights approach to violence against women and
children in the United States.
POSTSEPARATION VIOLENCE
AND THE FAMILY COURTS
I can’t stress enough how awful it is to be battered . . . and not to be
able to get away from that, to go to a court and have them give you
more of the same—not only not protect you from it, but give you
more of the same. (Participant in study)
Battered women with children often receive painfully ironic
mixed messages from the government. On one hand, they are
urged by state actors—such as the police, child welfare agencies,
and district attorneys—to leave their batterers and flee to a confi
-
dentially located shelter to protect themselves and their children.
On the other hand, once these women finally do take the coura
-
geous step to leave, they are often pressured by those working in
the family court system to negotiate child custody and visitation
with their batterers and to encourage an ongoing relationship
between their batterers and their children, many of whom have
been victimized by these same men. Battered mothers are often
expected to yield to custody and visitation orders that may re
-
quire them and their children to maintain long-term, unprotected
contact with the batterers. If they fail to comply with these court
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orders, they risk being held in contempt of court or even losing
custody of their children to the batterers.
These problems are at odds with what research tells us about
the children of battered women. Not only has it been well docu
-
mented that there is a serious negative impact on children who
have been exposed to the abuse of their mothers by their fathers
(Kolbo, Blakely, & Engleman, 1996; Margolin, 1998), but research
-
ers have found that 40% to 70% of children of battered women are
directly abused by their mother’s batterer (Huges, 1988; Ross,
1996). Furthermore, the children of battered women are more
likely to suffer high rates of mental and physical health problems
(Holden & Ritchie, 1991; Jaffe, Wolfe, Wilson, & Zak, 1986) and
are more likely to report distress related to postdivorce parental
visitation (Racusin, Copans, & Mills, 1994). Research has also
illustrated that batterers often escalate their partner abuse after
their victims leave them (Bernard, Vera, Vera, & Newman, 1982;
Langen & Innes, 1986; Stark & Flitcraft, 1988). Custody and visita-
tion arrangements can provide a context for abusive men to con-
tinue to control and victimize women and their children (Bancroft
& Silverman, 2000; Lemon, 1999, 2000).
THE MASSACHUSETTS CONTEXT
Massachusetts has acknowledged that children should be pro-
tected from parents who have abused them or their other parent.
Most relevant is the Massachusetts Presumption of Custody Law
(Massachusetts General Laws, 1998), which states that it is not in
children’s best interests to be placed in the custody of a parent
who has abused the other parent or the child. There has also
been some official recognition of systemic problems with how the
family courts handle domestic violence and child custody. A
1989 report on gender bias found that family courts are order
-
ing shared legal custody even when there is a history of part
-
ner abuse (Supreme Judicial Court of Massachusetts, 1989). The
report found that regardless of the presence or absence of partner
abuse, fathers who actively seek custody obtain either primary or
joint physical custody 70% to 90% of the time. In addition, a 2003
report of the Domestic Violence Court Assessment Project of the
Administrative Office of the Trial Court came out with many simi
-
lar findings to those of the Battered Mothers’ Testimony Project,
1370 VIOLENCE AGAINST WOMEN / November 2005
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such as the problem of judges failing to consider the Presumption
of Custody Law (Administrative Office of the Trial Court, 2003).
Since then, the courts have instituted a series of reforms that
include creating guidelines; authoring new canons in the Code of
Judicial Conduct; increasing training for judges, probate proba
-
tion officers, and guardians ad litem; and improving professional
standards for the latter. Despite these advances, the continued
reality is that there are few accountability mechanisms for state
actors in Massachusetts. Family court judges are appointed for
life with no meaningful review process; few effective and accessi
-
ble procedures exist for litigants to make complaints about
judges, guardians ad litem, and other key players in the family
court system; and the right to appeal is often irrelevant to battered
women because of its high cost and the fact that appeals are fre
-
quently decided on narrow legal grounds. As a result, many bat-
tered mothers have lost trust in the family court system. The
implications are dire: A battered mother may choose to remain
with the batterer rather than face a family court system that may
deny justice to her and her children.
EXTENDING BEYOND MASSACHUSETTS’ BORDERS
Beyond Massachusetts, recent state-specific studies have docu-
mented the endangerment of battered women and their children
by family courts in other areas of the country (AZCADV, 2003;
CANOW, 2002; O’Sullivan, 2002; WLP, 2003). Mounting aware
-
ness of injustice toward battered women and children in U.S. fam
-
ily courts dovetails with a growing U.S. domestic human rights
movement that increasingly reframes issues such as the death
penalty, poverty, and racism from the vantage point of inter-
national human rights. Although movements to end violence
against women outside the United States have been using human
rights as the foundation for their work for years, few have done so
in the United States.
U.S. OBLIGATIONS UNDER THE INTERNATIONAL
HUMAN RIGHTS SYSTEM
Human rights are based on the fundamental principle that
all people—no matter who they are or where they come from—
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possess an inherent human dignity and that regardless of sex,
race, class, sexual orientation, immigration status, nationality,
age, religion, or other distinctions, they are equally entitled to
enjoy their human rights and equally responsible for respecting
the human rights of others. Moreover, in the human rights frame
-
work, economic, social, and cultural rights are as important as
civil and political rights. For example, the rights to food and shel
-
ter are considered to be on a par with the rights to free speech,
bodily integrity, and due process; indeed, they are interdepen
-
dent and inextricable.
According to international human rights laws and princi
-
ples, governments throughout the world, including the United
States, are responsible for respecting, protecting, and fulfilling the
human rights of people within their jurisdictions. This obliga
-
tion includes not only refraining from directly violating people’s
human rights but also taking positive steps to protect and pro-
mote human rights. Key international instruments, such as the
United Nations (UN) Declaration on the Elimination of Violence
against Women, the UN Convention on the Elimination of All
Forms of Discrimination against Women, and the UN Convention
on the Rights of the Child, define partner abuse and child abuse as
human rights violations and map out government obligations to
take steps to end and prevent such abuse.
The U.S. government has a responsibility to meet the human
rights standards set by the international community regarding
violence against women and children. First, the United States is
legally bound to uphold the international human rights treaties
that it has ratified, such as the International Covenant on Civil
and Political Rights; the Convention against Torture and other
Cruel, Inhuman, or Degrading Treatment or Punishment; and the
International Convention on the Elimination of All Forms of
Racial Discrimination. Although the U.S. has declared that all of
the treaties it ratifies are non–self-executing (i.e., that the govern
-
ment must adopt additional implementing legislation to give
treaties the force of law domestically), “U.S. officials concede that
the norms guaranteed still must be observed by all state and fed
-
eral officials, including judges” (Copelon, 1998, p. 79). In addi
-
tion, although the U.S. has made reservations to the treaties it has
ratified, the reservation must not be “incompatible with the object
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and purpose of the [international] agreement” (American Law
Institute, 1987, §313[1][c]).
Second, the United States has important obligations toward the
international human rights treaties that it has signed but not rati
-
fied, such as the Convention on the Rights of the Child, the Con
-
vention on the Elimination of All Forms of Discrimination against
Women, and the International Covenant on Economic, Social, and
Cultural Rights: “Prior to the entry into force of an international
agreement, a state that has signed the agreement or expressed its
consent to be bound is obliged to refrain from acts that would
defeat the object and purpose of the agreement” (American Law
Institute, 1987, § 312[3]; This requirement is also found in Article
18 of the Vienna Convention on the Law of Treaties.)
Third, the United States has an obligation to uphold interna
-
tional laws, declarations, and principles that have attained the
status of customary international law, such as the Universal Dec-
laration of Human Rights (Hannum, 1995/1996, p. 322). Custom-
ary international law is binding on all nations, including the
United States, and as scholars have noted, “[U.S.] state and fed-
eral law should be interpreted so as not to conflict with customary
international human rights norms and obligations” (Miccio, 1998,
p. 680). The International Court of Justice (ICJ) has ruled that a
practice attains the status of customary law where there is evi-
dence of “uniform and consistent usage among the states” (The
Asylum Case, 1950, pp. 266, 276-277). One indication of such usage
is widespread ratification as enjoyed, for example, by the Con
-
vention on the Rights of the Child, ratified by every country in the
world except the United States, and the Convention on the Elimi
-
nation of All Forms of Discrimination Against Women, ratified by
180 countries, leaving the United States as the only industrialized
country in the world not to ratify it. Article 38 of the ICJ’s govern
-
ing statute further states that “[t]he Court . . . shall apply . . . inter
-
national custom, as evidence of a general practice accepted as
law” (International Court of Justice, Article 38(1)(b)). It should
be stressed that the responsibility to implement international
human rights obligations belongs not only to the U.S. federal gov
-
ernment but to the individual states as well (“U.S. reservations,
declarations,” 1994). Numerous U.S. state courts have turned to
international human rights laws and norms as a guide to U.S. law
(American Law Institute, 1987, §701 [Reporters’ Note 7]) and in
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recognition of the need to construe state law within an interna
-
tional context. These state courts cite not only treaties to which the
United States is a party but also treaties that the United States has
only signed as well as customary international law.
PARTICIPATORY HUMAN RIGHTS
DOCUMENTATION: THE BMTP MODEL
The BMTP offers a new model for research on violence against
women and children in U.S. communities. The project instituted
a multiyear, four-phase study that combined participatory hu
-
man rights documentation and analysis with qualitative research
methods.
Human rights documentation offers a provocative addition to
traditional research methods because of the questions it asks,
the ways it defines and analyzes the problem at hand, and the
goals that guide it. Human rights documentation seeks to un-
cover government practices that amount to human rights viola-
tions and to hold state actors accountable for their actions as well
as their inactions. This goal is particularly important where, as
with domestic violence and child custody cases, the problems
being investigated are often concealed, denied, or actively ignor-
ed by the government, as are many violations of women’s human
rights (Women, Law & Development International & Human
Rights Watch Women’s Rights Project, 1997). Human rights docu-
mentation also strives to bolster efforts to reform the government
by educating the public about the violations, as well as by identi
-
fying and recommending the changes necessary to ensure that the
government fulfills its human rights obligations.
In addition, human rights documentation’s central source of
information is first-hand testimonies of the survivors of such
violations. Typically, these are the very voices that are muted
or silenced by the government and society. In human rights
documentation, survivor accounts are corroborated by witnesses,
fact-checking, secondary research, and interviews with state
actors. Still, survivors’ voices remain paramount to the process of
investigation.
Human rights documentation analyzes its research findings
according to international human rights laws, standards, and
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principles, and publicly identifies these findings as human rights
violations. By applying legal analysis to the research findings,
the investigation can delineate why the government’s actions
amount to human rights violations and how the government
should act to fulfill its human rights obligations.
We supplemented our human rights documentation approach
with qualitative research methods. As with human rights docu
-
mentation, the driving force behind qualitative research is the
prominence of the voices of those whose life experiences are being
researched. Qualitative research produces in-depth descriptions
of participants’ experiences, in their own words, that provide
otherwise unobtainable information about and insight into the
issues under study. Furthermore, the iterative process of record
-
ing, transcribing, coding, and analyzing interviews is based in a
grounded-theory approach that focuses squarely on the priorities
that the interviewed women themselves place on the importance
of the details of their life stories (Glaser & Strauss, 1967; Strauss &
Corbin, 1990). This combination of approaches allowed us to
identify common phenomena among participants’ experiences
that point to systemic problems.
PHASE ONE: SURVIVOR TESTIMONIES
The BMTP conducted 4-hr interviews with 40 battered mothers
who experienced family court litigation in 11 of the 14 Massachu-
setts counties. These self-selected participants felt that the courts
had treated them unfairly or had violated their rights and were
willing to speak about their experiences. They were a diverse
group primarily recruited through social service agencies and
legal providers. The age range of participants was 24 to 58, and
approximately one quarter were women of color (including both
U.S. citizens and immigrants). Their annual income ranged from
less than $15,000 to more than $105,000, and their education
ranged from completion of some high school to advanced gradu
-
ate degrees.
To uncover information relevant to a human rights framework,
participants were asked about (a) the history of partner and child
abuse, both before and after separation from the batterer, (b) eco
-
nomic and financial issues, and (c) experiences with key state
actors in the family court system: judges, guardians ad litem (cus
-
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tody evaluators), probate probation officers (family court media
-
tors), child protective services workers, and court-appointed psy
-
chological evaluators. The interview was semistructured and
included both open-ended and closed-ended questions.
In one quarter of the cases, women’s testimonies were fact-
checked for accuracy; all were fully corroborated. Interview tran
-
scripts were analyzed for content, and analysis results were man
-
aged with a customized relational database (Microsoft Access
2000) that allowed for comparative examination of both socio
-
demographic information and content analysis. The analysis and
coding process was undertaken by Steering Committee members
and the research analyst, who read through the interview tran
-
scripts in their entirety and listed emergent themes. These lists
were compared within the team, and themes that occurred in two
or more interview transcripts were assigned specific codes. These
codes were then used in analysis of the remaining transcripts.
New themes that appeared in two or more transcripts emerged
regularly throughout the analysis process and codes for these
were incorporated into the existing database. Select interview
passages were read and coded collaboratively to ensure interrater
reliability.
PHASE TWO: ADVOCATE-WITNESS SURVEY
In human rights documentation, survivor testimony is often
supported by witness testimony. Phase Two, therefore, consisted
of a written survey of 31 advocates for battered women and their
children across Massachusetts. These advocates had worked with
battered women involved in family court litigation and could
offer insight into patterns of problems with how partner abuse
and custody issues are handled. This group was asked to describe
their experiences with family court judges, guardians ad litem,
and other key state actors, and to assess how they handled
child custody and visitation issues when there was a history of
partner abuse. They were also asked about harm resulting to
women and children in the context of these court orders. Sur
-
vey responses to individual questions were analyzed, emerging
themes were noted, and results of the survey analysis were com
-
pared with results of the analysis of individual battered women’s
testimonies.
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PHASE THREE: FOCUS GROUPS
Human rights principles of equality require an exploration of
the ways in which violations are experienced differently by differ
-
ent people, according to intersecting factors such as sex, race, eth
-
nicity, socioeconomic status, immigration status, age, and sexual
orientation. This is particularly important for women, many of
whom experience multiple levels of oppression and marginal
-
ization. The BMTP conducted five focus groups with a total of 23
participants: (1) women of color survivors of partner abuse;
(2) lawyers for women of color survivors who are themselves
women of color; (3) advocates for immigrant and refugee survi
-
vors; (4) advocates for lesbian, bisexual, and transgendered survi
-
vors; and (5) mainstream service providers, primarily lawyers,
and legal advocates.
These focus group participants were asked how race, gender,
socioeconomic status, immigration status, and sexual orientation
may affect family court proceedings and about their interactions
with different state actors in the family court system. Responses
were analyzed to identify themes and issues common among par-
ticipants, both within each group and across the five groups.
These focus group results were then compared with the results of
the analysis of the individual battered women’s testimonies and
the survey of battered women’s advocates.
PHASE FOUR: STATE ACTOR INTERVIEWS
The BMTP conducted 1-hr interviews with 16 state actors in
Massachusetts who work in or in relation to the family court sys
-
tem. The interviews were designed to elicit state actors’ under
-
standings of and attitudes toward domestic violence and child
custody cases. State actors were identified as interview partici
-
pants for one of three reasons: (a) at least two women made spe
-
cific complaints about them, (b) women or advocates identified
them as handling partner abuse and child custody issues well,
or (c) they possessed specific knowledge about an aspect of the
family court system based on their professional affiliation or posi
-
tion. These interview responses were analyzed individually and
across the group. Furthermore, the specific content of some of
these interview responses was compared with the results of our
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research on Massachusetts domestic violence and child custody
issues.
LINKING METHODOLOGY TO ACTIVISM
Participants in all four phases were asked to give their recom
-
mendations for changing the family court system to better meet
the needs of battered mothers and their children. Their responses
formed the basis of the recommendations for change made by the
BMTP in the final report (Cuthbert et al., 2002).
From the outset, our research methodology was intrinsically
linked to our long-term organizing, activism, and social change
goals. We relied on battered women’s advocates in the commu
-
nity to conduct many of the interviews. These advocates were
trained in human rights principles and documentation strategies
and also participated actively in organizing meetings.
The survivors were provided with complete information about
the nature of the project as well as human rights education materi-
als and were encouraged to participate in quarterly project orga-
nizing meetings. This process enabled the organizers and docu-
menters to actively engage and interact with project participants
and to communicate openly about the issues under study. The
value of participatory activist research in the field of domestic vio-
lence has been well documented (Varcoe & Irwin, 2004).
This process provided survivors with a safe venue in which to
describe their experiences, to be believed, and to feel part of a
larger movement. In many cases, the telling of the stories itself
was reported by participants to be part of their healing process as
well as a catalyst for their growing activism. In the words of one
survivor, “Through the BMTP, I’ve reclaimed my voice and found
a way for my experiences to have meaning. The project has given
me tools to understand what we’ve survived and to hope for
change.” Many researchers and battered women’s advocates rec
-
ognize that providing battered women with an opportunity to tell
their stories is the first step toward seeking help (Lempert, 1997).
Some survivors who testified became documenters themselves
and participated in the project’s human rights tribunal and press
conference. Project participants continued involvement with
the BMTP through participation in strategy meetings and public
education events. One key outcome was the initiation of the
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Massachusetts Protective Parents Association, the goal of which
is to provide an outlet for political activism and mutual support
on these issues.
FINDINGS AND HUMAN RIGHTS ANALYSIS
We analyzed our findings according to international human
rights laws and standards as well as U.S. federal and Massachu
-
setts state laws and policies. The human rights analysis centered
on whether, in selected domestic violence and child custody
cases, the Massachusetts family courts are
Respecting, protecting, and fulfilling battered mothers’ and their
children’s fundamental human rights to bodily integrity, freedom
from violence, nondiscrimination, equal protection of the law,
due process, freedom from torture and degrading treatment, free
speech, a fair hearing, and an adequate standard of living.
1
Exercising due diligence with respect to violence against women
and children.
2
Acting in children’s best interests in child custody and visitation
cases where there is a history of partner abuse.
3
Through the process of answering these questions, we were
able to categorize our findings into six often intersecting, human
rights violations that occur because of specific actions, inactions,
and attitudes by state actors in the family court system.
FAILURE TO PROTECT BATTERED WOMEN
AND CHILDREN FROM ABUSE
All 40 of the women we interviewed reported that their ex
-
partners had subjected them to some form of physical, emotional,
or sexual abuse during their relationship, and a majority said that
their expartners had abused them during pregnancy. As one par
-
ticipant told us: “He said, ‘Okay, you don’t want it [sex]?’ He
started . . . punching me and hitting me. I was 2 months preg
-
nant.” Many women also reported that while they were still in the
relationship, their expartners had subjected their children to sex
-
ual or physical abuse, and many more described a wide range of
behaviors by their expartners that amounted to psychological
abuse and mistreatment of their children. In the words of another
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participant, “My husband took the baby and said, ‘Shut this
fucking kid up!’ and threw him across the room.” Aclear majority
of women interviewed also reported that their children had wit
-
nessed incidents of partner abuse.
The violence and intimidation did not stop when the relation
-
ship ended. The majority of women said that after they left their
expartners and went to family court, the batterers continued to
subject them and their children to some form of abuse or mistreat
-
ment. More than a third said that their expartners stalked them
postseparation, and nearly a quarter said that their expartners
threatened to kill them. A majority reported that their expartners
violated a restraining order, including physically or sexually
abusing them postseparation.
Women also reported that their expartners had harmed their
children postseparation, almost always during court-ordered ex-
changes of the children or during court-ordered visits. For in-
stance, more than a third of the women we interviewed said that
their ex-partners had sexually abused their children postsepar-
ation, and more than half said that their expartners had psycho-
logically mistreated or neglected the children. One mother
reported that her daughter “came home the first time with claims
that he kissed her with his tongue. . . . Almost every weekend after
that, she had new disclosures. She told me that he put two fingers
inside of her vagina.” Being forced by the courts to send their chil-
dren into dangerous situations was one of the most painful
aspects of their cases. In the words of one participant, “I don’t
think there is a worse thing in the world than not being able to
protect your children.”
Despite these women’s histories of victimization and the fact
that the partner and child abuse continued postseparation, more
than half of the women we interviewed reported that a state
actor—typically a judge, guardian ad litem, or probate probation
officer—had granted or recommended joint or sole physical cus
-
tody of the children to their expartners at some point during the
family court litigation. In addition, a common complaint of the
women was that a state actor in the family courts had granted or
recommended that their expartners have unsupervised visitation
with the children, including overnight visits. One survivor said
that the judge in her case switched from having a professional
supervise the visits between the abusive father and daughter to
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having the father’s family members supervise, even though a
court-ordered sexual abuse evaluation had concluded that there
was a high likelihood that the father had sexually abused his
daughter. At another point in this case, the daughter was required
to go on unsupervised overnights with her father over the
daughter’s own strong objections.
A significant majority of lawyers, legal advocates, and service
providers in our written survey confirmed these reports by survi
-
vors, stating that they were aware of situations in which battered
women and their children had been endangered or abused by the
expartners because of the contact required by court-ordered cus
-
tody and visitation arrangements. One legal advocate at a bat
-
tered woman’s program observed that “even where pick-up and
drop-off is at the police station, women get harassed, followed,
and threatened by expartners.”
We also found cases where state actors ignore or minimize
mothers’ reports of partner or child abuse and mistreatment, fail
or refuse to investigate partner abuse or mothers allegations of
child abuse, and fail to examine or credit documented evidence of
partner or child abuse. As one mother reported,
In my first meeting with the guardian ad litem, I had told him that
there was a significant history of domestic violence, [that] my
expartner had been to [a batterer’s intervention program], and that
I was disabled as a result of the abuse, and he told me, “No one
cares about that abuse crap.”
A legal advocate at a Massachusetts-based battered women’s
program noted, “Many guardians ad litem . . . say that the ‘past
abuse’ of one parent by another is irrelevant and that the parents
need parenting education to learn how to move on in a way that
spares the children.”
When the Massachusetts family courts fail to protect battered
mothers and their children from partner and child abuse, they
violate women’s and children’s human rights to freedom from
violence and, in some circumstances, their rights to freedom from
torture and to nondiscrimination. They also fail to uphold the
government’s human rights obligations to exercise due diligence
to prevent violence against women as well as to act in children’s
best interests, which includes protection from abuse.
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The Massachusetts family courts failed to do due diligence
when, for example, they refused to investigate allegations of part
-
ner or child abuse or granted custody of children to a batterer who
may also have abused the children. In such instances, the family
court system failed to exercise due diligence both through its
actions and its failures to act. According to our findings, the fam
-
ily court system’s failure to exercise due diligence to prevent and
punish partner and child abuse is also deeply connected to bias
and discrimination against battered women in the family courts
and a failure of the system to uphold battered women’s due
process rights (see below).
DISCRIMINATION AND BIAS AGAINST BATTERED WOMEN
Information provided by survivors and advocates indicates
that discrimination and bias continue to exist in the Massachu-
setts family courts. For example, more than half of the women we
interviewed reported that one or more state actors—especially
guardians ad litem—had conducted or made biased investiga-
tions, evaluations, or reports that either unfairly disadvantaged
them or heavily favored their abusive expartners. Many of their
complaints describe incidents in which the guardian ad litem
sided actively with the fathers, refused to look at evidence that
supported the mother’s claims of abuse, conducted interviews in
a way that favored fathers, and distorted facts to benefit the
fathers. One participant told us,
[They] never talked to the district attorney, they never talked to the
chief of police, they never talked to the state trooper, they didn’t
talk to the probation officer. They didn’t talk to anybody, but they
did say that I made it all up. They wrote . . . that there was no
domestic violence and [that] I made it up to increase my odds of
getting what I wanted in probate court.
Additionally, reports by many of the advocates and survi
-
vors indicate that there are state actors in the family court system
who do not find battered women credible as a general rule and
therefore dismiss their allegations of partner and child abuse.
Several advocates confirmed the existence of bias against battered
women in the family courts. One commented, “[Probate proba
-
tion officers] disbelieve and pathologize battered moms.”
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According to many advocates, survivors, and state actors, the
attitude of guardians ad litem to battered women is particularly
problematic. For example, when asked why fathers can still win
custody when the Department of Social Services has documented
evidence of partner or child abuse, one DSS worker responded, “I
have seen ...abias against women [where the guardians ad litem
think] women are being vindictive and will pull out all the tricks
to get back at their divorcing spouses.”
A majority of survivors also felt that state actors held them to
higher behavioral and parenting standards than they did the
fathers. Many of the women reported feeling that they constantly
had to prove themselves as good parents in ways that their abu
-
sive expartners did not. Some also felt that state actors were quick
to criticize them or hold them responsible as parents but did not
do the same with their expartners. One participant commented,
I had to prove myself. ...Hewasjust, you know, the “perfect” dad.
The judge had no concerns over him. . . . They wanted me to do so
many things ...gotoschool ...dothis and that, but they weren’t
asking him to do anything.
Advocates and survivors in our focus groups also described a
number of ways that battered women of color (both U.S. citizens
and immigrants and refugees) are discriminated against in the
Massachusetts family courts. Participants in a focus group of
attorneys for women of color stressed that women of color are
often not viewed as victims and thus do not receive appropriate
attention from state actors involved in their cases. They noted in
particular that low-income African American women are stereo
-
typed as being aggressive, drug-abusing, and lacking in credibil
-
ity. Advocates in our focus groups also described how immi
-
grant and refugee women are discriminated against in the family
courts based on cultural stereotypes. As one attorney comment
-
ed, “What counts the most is who has the better job, the better
command of English, and who appears to be more American.”
More than a quarter of the women we interviewed reported
that they experienced bias or discrimination on the basis of class,
education level, or income. One survivor told us, “Because [my
expartner] was a doctor, and at one point he was [a chief special
-
ist] at [X] hospital, I think they were biased in favor of his status
and position. . . . That put me at a disadvantage.”
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Finally, one of the women felt that she faced discrimination by
state actors because she was in a new relationship with another
woman. For example, the court ordered that her children not have
any contact with her new female partner, and her new partner
was subjected to repeated scrutiny and interviews by the guard
-
ian ad litem, whereas the father’s girlfriend, who later became his
wife, was never interviewed. The court eventually granted cus
-
tody of the two young children to their father, even though the
mother had been their primary caretaker since birth, had never
been found unfit, and was the victim of physical abuse by the
father. She is still fighting to regain custody of her children.
Equality is a bedrock principle of human rights law. When state
actors in the Massachusetts family courts exhibit bias and dis
-
crimination against battered mothers, they violate their human
rights to nondiscrimination, equal protection of the law, equality
in judicial proceedings, due process, and due diligence.
DEGRADING TREATMENT OF BATTERED WOMEN
The majority of women said that judges, guardians ad litem,
and probate probation officers had treated them with condescen-
sion, scorn, and disrespect. This included responding to their
claims and descriptions of abuse with sarcasm and dismissal. One
participant reported that the judge “told me off a couple of times.
He yelled at me—that I needed to shut up.” Another participant
stated that the judges
were just very critical and condescending. . . . They just cut me off a
lot, they didn’t want to hear what was going on. . . . During the cus
-
tody trial, [the judge] just said, “Well, you’re rambling,” while I
was trying to tell . . . what happened.
Many advocates surveyed said that they were aware of inci
-
dents of personal mistreatment of battered mothers by state
actors in the family court system. Participants in our focus groups
identified patterns of degrading treatment by showing how it is
connected to discrimination or bias. As one attorney noted,
I see a different reaction from judges and family service officers to
women who may dress in a certain way, and who are articulate and
educated, as opposed to women who are not dressed as profes
-
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sional[ly]. . . . They are not given much credibility, their story isn’t
trusted as much. . . . The family service officers are condescending
and disrespectful.
As a result of these and related problems, battered mothers
may be revictimized by state actors, and their allegations of abuse
may be dismissed or not responded to effectively. This can con
-
tribute to the courts’ ordering custody and visitation arrange
-
ments that endanger women and that are not in children’s best
interests.
When state actors in the Massachusetts family courts systemat
-
ically treat battered women with scorn and sarcasm or insult and
dismiss them, they are violating their human right to freedom
from degrading treatment. At best, such degrading treatment
compounds women’s experiences of abuse; at worst, it contrib
-
utes to a culture of gender bias and case outcomes that are unjust
and harmful.
DENIAL OF DUE PROCESS TO BATTERED WOMEN
Our study indicated that serious due process problems may
exist in the Massachusetts family courts. For example, almost half
of the women we interviewed reported that the judge in their case
denied them an adequate opportunity to tell their side of the story
or to respond to arguments that had been raised by their ex-
partners. In the words of one mother,
Judge [X] especially, and I’ve probably been in front of her 12 or 15
times ...Iamnotallowed to speak. So if my attorney misses some
-
thing or says something that I don’t agree with, she will tell me,
“You have an attorney. That’s what you have an attorney for.” Basi
-
cally, “shut up.”
Several women commented that their expartners were consis
-
tently given more time and opportunity to speak in court, as well
as to present evidence and witnesses, than they were, particularly
if the women did not have attorneys. Granting men a greater
opportunity than women to speak in court is a major concern
because it can contribute directly to outcomes that are biased in
favor of fathers and against mothers. According to a representa
-
tive from the Massachusetts Commission on Judicial Conduct,
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There are some judges who seem not to get it in the area of battered
women. Occasionally, we will see a judge who just—when you lis
-
ten to the tapes of the court proceedings—they are always cutting
off the woman, not letting her finish her sentences.
In addition, in our focus group of advocates for battered immi
-
grant and refugee women, participants listed numerous due pro
-
cess problems for women whose first language is not English.
Many of these women are ultimately denied an adequate oppor
-
tunity to be heard in court because of the poor quality or bias of
interpreters, or because judges get frustrated with their poor
English skills.
Another due process problem revealed through our findings
is that of probation officers who pressure battered mothers to
engage in unsafe, face-to-face mediation and dispute interven
-
tion with their abusers, despite the officers’ knowledge of the
partner abuse. Mediation between batterers and their victims
exposes victims to danger and intimidation, and can result in their
agreeing to terms that are not in the best interests of the children
or themselves (American Bar Association Center on Children and
the Law, 1994). As one survivor described her experience,
When I said, “Listen, there is a restraining order and I don’t feel
comfortable sitting in the same room,” [the probate probation offi-
cer] looked at me and is like, “Don’t be ridiculous.” She . . . made us
go in the room together.
In addition, almost half of the survivors reported to us that they
were not given copies of the guardian ad litem reports in their
cases. Some of the women were only allowed to read the reports
in their attorneys offices; others were not allowed to read them at
all. This impounding of guardian ad litem reports keeps the
reports from scrutiny and challenges by the parties. This problem
is of particular concern because these reports are heavily relied on
by judges as key evidence in deciding child custody and visita
-
tion. For battered mothers, lack of access to reports ultimately
affects their ability to protect their children’s best interests.
Human rights laws and standards require governments to
uphold due process of the law, including fair hearings for resolv
-
ing disputes, freedom of speech, and equal protection under the
law. When battered mothers are denied their due process rights,
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their ability to achieve justice and safety for themselves and their
children is seriously compromised.
ALLOWING THE BATTERER TO CONTINUE
THE ABUSE THROUGH THE FAMILY COURTS
Our study indicated that there are batterers who use the family
court system as a tool for ongoing harassment, retaliation, and
intimidation of battered mothers. This misuse of the court process
often goes unpunished, resulting in financial as well as emotional
harm to women and children. The specific litigation abuse tactics
include filing multiple harassing, baseless, or retaliatory motions
in court. As one survivor stated, “He’s forced me to go back to
court endlessly. I can’t remember how many motions we have on
our docket. There’s got to be 150.” Another participant reported,
There has been no visitation since 1995 because he was sexually
molesting [our daughter] on visitation. And she’s scared to death
of him. But that doesn’t stop him from trying to go for visitation
constantly, to harass us. There’s a whole pattern of the next court
date, and the emotions I go through building up to it, and then
actually being there and seeing him, and him stalking me in the
halls . . . and having to do that week after week, year after year.
A lawyer also mentioned such problems:
[Batterers] will seek outrageous visitation that will guarantee them
contact with the mother, or if they seek custody, they will seek joint
legal custody so that, if there is a restraining order, they can at least
control what’s going on.
Nearly half of the survivors reported to us that their expartners
made false allegations against them, such as accusing them of
abusing, neglecting, or kidnapping the children, of denying the
fathers visits with the children, of being a flight risk, and of using
drugs. Another abuse tactic described by women is batterers’ mis
-
using the court process to avoid paying or to receive a reduction in
child support. Many survivors, for example, said that their ex
-
partners lied about their job status and income, or hid assets.
Finally, more than half of the survivors stated that their expart
-
ners were using parallel actions in courts of different jurisdictions
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to manipulate the courts to their advantage. One participant pro
-
vided the following example:
[H]e’s told the family court, “Well, she’s just trying to get custody
because she’s saying I’m abusive. She’s using the abuse card.” And
in district court, he’s saying, “Well, she’s just getting this restrain
-
ing order against me because there’s an issue of custody.” And as
soon as he says that, the court dismisses [the restraining order].
The failure of the family courts, particularly judges, to identify,
punish, and prohibit this abuse of the court process renders the
state actors complicit in the litigation abuse as well as in resulting
harm to women and children. Perhaps worst of all, the success of
these tactics can erode a woman’s stamina for sustaining the fam
-
ily court battle to keep her children and herself safe. As one attor
-
ney described the problem, it can result in “the gradual degrada-
tion of a woman’s will to fight at all.” The same attorney also said,
“The court process itself is daunting and traumatic . . . the abuse of
the court process by the abuser—i.e., bringing the woman into
court on innumerable frivolous motions—can lead to emotional
and financial trauma.”
Analyzed under international human rights law, the courts’
tolerance of such tactics amounts to a failure to exercise due dili-
gence to prevent this form of partner abuse. By allowing this
abuse to continue, the courts are violating battered mothers’ and
children’s human rights to due process, equality in judicial pro-
ceedings, and an adequate standard of living. It also violates chil
-
dren’s rights to receive economic support from their parents.
FAILURE TO RESPECT THE ECONOMIC RIGHTS
OF BATTERED WOMEN AND CHILDREN
Survivors, as well as attorneys and service providers, reported
that there are state actors in the Massachusetts family courts—
particularly judges—who are negatively affecting battered wo
-
men’s and children’s economic well-being through their actions
and failures to act. Specific problems include judges’ making un
-
fair or unreasonable child support orders, failing to hold batter
-
ers accountable for nonpayment of child support, and allowing
batterers to continue their financially draining litigation abuse
tactics.
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More than half of the women we interviewed reported that
they suffered financial hardship related to their family court
ordeals. Some said that they had spent tens or even hundreds of
thousands of dollars on legal fees and court-related costs, and
others said that they were hundreds of thousands of dollars in
debt because of the litigation. This problem is compounded by the
fact that the majority of women reported that their incomes are
substantially lower than those of their expartners. For many sur
-
vivors, these factors conspired to prevent them from being able to
hire an attorney at all or from being able to retain an attorney
throughout the entire course of the litigation. According to one
mother, “[The family court litigation has] financially crippled me
and, therefore, interfered with financial resources that should
have gone to taking care of the kids. It put me in debt. I’ve had to
file for bankruptcy twice.”
A few women said that the judges reduced the amount of child
support to compensate for the cost of supervised visitation, an
arrangement that, in effect, makes children pay for the cost of
supervised visits with a man who abused them and their mothers.
Many women reported that inadequate child support orders
caused financial hardship.
The downward financial spiral in which many of the women
we interviewed find themselves can be traced in part to certain
family court judges’ actions or inactions, and therefore amount to
a failure of the state to respect battered women’s economic human
rights. In particular, these state actors failed to meet their human
rights obligations to enable a standard of living adequate for chil
-
dren’s development and to take all appropriate measures to
secure economic support for the child from parents or others hav
-
ing financial responsibility for the child. Moreover, a battered
mother’s inability to hire an attorney may also compromise her
due process and equal protection rights, because the lack of legal
representation can restrict her ability to pursue her family court
case to the same extent as her expartner when he is represented.
CONCLUSION TO FINDINGS
The nature, range, and overlap of the problems reported by the
40 women in this sample were consistently echoed by the advo
-
cates, lawyers, service providers, and some of the state actors we
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interviewed. The BMTP does not, however, represent all battered
mothers who have experienced litigation in the Massachusetts
family court system, all battered women’s advocates, or all state
actors in the Massachusetts family courts. We make no claims
regarding statistical significance, ability to generalize to a larger
population, or the overall extent of the reported problems either
in Massachusetts or elsewhere. Nevertheless, our findings do (a)
offer a detailed understanding of the types of injustices encoun
-
tered by battered mothers in the Massachusetts family courts, (b)
establish that human rights violations have occurred and that
Massachusetts is obligated to take steps to remedy them, and (c)
provide a basis for making practical recommendations for reform
of the system.
THE VALUE OF A HUMAN RIGHTS APPROACH
Despite the fact that a prominent American, Eleanor Roosevelt,
was one of the principal architects of the Universal Declaration of
Human Rights after World War II and despite the fact that the
United States continually holds itself out as a defender of human
rights globally, the United States has consistently refused to scru-
tinize its own domestic human rights record. Illustrating this
problem, in response to the release of Battered Mothers Speak Out,
the Chief Justice of the Family and Probate Courts in Massachu-
setts was quoted in a local newspaper as saying that framing
these problems as human rights violations “may work well for
systems in Third World countries, but not for a court in the U.S.”
(Lombardi, 2003).
The human rights framework, method, and analysis are, in
fact, both applicable and critical to the broad field of violence
against women prevention and intervention in the United States.
A woman or child in the United States seeking protection from
a batterer or child abuser has the same human right to freedom
from violence as a woman fleeing rape by the military in Bosnia.
Some women and children are subjected to treatment that
amounts to a violation of their human rights, and the government
has a responsibility under human rights laws to take active steps
to stop these violations. Building a record of human rights viola
-
tions in the United States through human rights-informed re
-
search and advocacy can play a critical role in advancing human
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rights, by both monitoring and urging U.S. compliance with
human rights standards.
What, in particular, does an explicit human rights approach
add to research, organizing, and advocacy on partner and child
abuse in the United States? First, its focus on government
accountability produces critical information and analysis about
the roles and responsibilities of the government—and not just the
individual perpetrator—in both perpetuating and solving the
problems under study. This is essential because the government
must play a primary role in the systemic change that is needed to
prevent and end partner and child abuse.
Second, the human rights approach powerfully exposes gov
-
ernment abuses by documenting and amplifying the voices of
survivors of such abuse. And by framing survivors’ experiences
within the international human rights framework, we validate
the truth and seriousness of their experiences and offer hope that
it is possible to create a world in which human rights are respect-
ed. One participant told us, “Finding the BMTP saved my life. For
me, the human rights approach . . . gave me the affirmation that I
am a human being and that I should be afforded fair and equal
treatment.”
Third, by defining, documenting, and publicizing the issues in
human rights terms, we repoliticize them in new and heightened
ways. For example, when the charge of human rights violations is
leveled against the government, the government is often forced to
respond publicly, thereby increasing the likelihood of reform.
Moreover, a human rights approach is inherently geared toward
social change and thus helps heighten the level of activism in
efforts to end partner and child abuse.
Fourth, because the human rights approach addresses within
one framework the intersecting injustices and multiple oppres
-
sions that battered women and their children may face, it enables
us to analyze the issues in their full complexity and to advance
policy in ways that benefit all women and children.
Finally, by holding the family courts accountable for respecting
and promoting human rights in the United States, we can help
fulfill international obligations and thereby maintain interna
-
tional respect for the U.S. legal system as well as strengthen the
credibility of the United States as a defender of human rights
abroad.
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CONCLUSION
The BMTP has used the international human rights framework
in three key ways: (a) as a research construct to advance knowl
-
edge about violence against women and children in U.S. commu
-
nities within a global context; (b) as a tool for identifying the
social, political, and legal changes needed to eradicate these prob
-
lems in the United States, particularly changes that must be car
-
ried out by the government; and (c) as the driving vision and
inspiration for creating the grassroots momentum needed to put
pressure on the government to bring about these changes. This
framework represents an important new research model for ad
-
dressing violence against women and children in the United
States that can serve as a critical bridge between research and
activism. Our model should be seen as one step in the growing
movement to advance human rights overall in the United States, a
movement that, although nascent, has the potential to have a sig-
nificant impact on how social injustices are identified, under-
stood, and rectified.
NOTES
1. These rights are enshrined in a number of international laws and instruments, includ
-
ing the Universal Declaration of Human Rights; the UN Declaration on the Elimination of
Violence Against Women; the UN Convention on the Elimination of All Forms of Discrimi
-
nation Against Women; the UN Convention on the Rights of the Child; the UN Interna
-
tional Covenant on Civil and Political Rights; the UN Convention Against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment; the UN International Con
-
vention on the Elimination of All Forms of Racial Discrimination; and the UN International
Covenant on Economic, Social and Cultural Rights.
2. Due diligence is the primary human rights standard for assessing how a government
responds to human rights abuses, such as partner and child abuse, that are committed by
nonstate or private actors. According to the UN Declaration on the Elimination of Violence
Against Women, for example, governments should “[e]xercise due diligence to prevent,
investigate and, in accordance with national legislation, punish acts of violence against
women, whether those acts are perpetrated by the State or by private persons” (Article 4).
3. The “best interests of the child” standard is the primary standard for protecting chil
-
dren’s rights and well-being in both international and domestic law. The UN Convention
on the Rights of the Child states that children have the right to contact with their parents,
except when separation is necessary for the children’s best interests (Art. 9), and is clear
that abuse and neglect are not in children’s best interests (Art. 19).
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Kim Y. Slote, J.D., is a cofounder and former codirector of the Women’s Rights
Network (WRN), a human rights organization focusing on violence against
women and children at the Wellesley Centers for Women at Wellesley College. In
this capacity, she also cofounded WRN’s Battered Mothers’ Testimony Project.
She currently works for Planned Parenthood of Collier County in Naples, Florida,
as director of education and advocacy. Slote is a graduate of Harvard Law School
and Wesleyan University.
Carrie Cuthbert, J.D., is a cofounder and former codirector of the Women’s Rights
Network (WRN), a human rights organization focusing on violence against
women and children at the Wellesley Centers for Women at Wellesley College. In
this capacity, she also cofounded and directed WRN’s Battered Mothers’ Testi
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mony Project. She is a graduate of Harvard Law School.
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analysis of qualitative data and is a candidate for the Master of Public Health
degree at the Harvard School of Public Health.
Monica G. Driggers, J.D., served as policy director for the Women’s Rights Net
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work at the Wellesley Centers for Women (WCW), with a focus on the Battered
Mothers’ Testimony Project. She is now beginning a new project at the WCW to
examine gender-related issues in the justice system. Prior to joining the WCW, she
served as a senior policy analyst for the Supreme Court of California, Administra
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tive Office of the Courts, specializing in alternative and therapeutic courts.
Driggers holds a J.D. from the University of Denver and an A.B. from the Univer
-
sity of Chicago.
Lundy Bancroft has 16 years of experience in programs for abusive men as a coun
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selor and clinical supervisor and has served extensively as a custody evaluator,
child abuse investigator, and expert witness. His books include When Dad Hurts
Mom: Helping Your ChildrenHeal the Wounds of Witnessing Abuse, Why
Does He Do That? Inside the Minds of Angry and Controlling Men, and
The Batterer as Parent: Addressing the Impact of Domestic Violence on
Family Dynamics.
Jay G. Silverman, Ph.D., is a developmental psychologist who studies the develop-
ment and prevention of intimate partner violence (IPV) against adolescent and
adult women. He is currently an assistant professor of society, human develop-
ment, and health and the director of Violence Prevention Programs at the Harvard
School of Public Health and has been involved in many research and evaluation
efforts in the area of IPV, working with both victims and perpetrators from both
adolescent and adult populations. He has contributed to many peer-reviewed IPV-
related publications and coauthored The Batterer as Parent.
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... At this vulnerable time, when survivors experience challenges to their physical safety and psychological well-being, many enter into the family court system seeking to protect themselves and their children from further abuse. Yet, a growing body of scholarship indicates that IPV is often minimized in child custody proceedings (Johnson et al. 2005;Kernic et al. 2005;Meier and Dickson 2017;Saunders et al. 2012Saunders et al. , 2016Saunders et al. 2013), and that the process of seeking child custody through the family court system can entail considerable difficulties for survivor-mothers aiming to protect their children, such as custody outcomes that jeopardize the safety of themselves and their children, or secondary victimization from court professionals (Khaw et al. 2018;Laing 2017;Miller and Manzer 2018;Rivera et al. 2012;Slote et al. 2005;Zeoli et al. 2013). ...
... First, qualitative accounts of IPV survivors' perceptions of family court indicate that many feel that they and their children are unprotected. In one Massachusetts-based study of 40 mothers going through custody proceedings, the majority of participants felt that they and their children were unsafe from post-separation abuse, which led the authors to the bold claim that the courts were violating human rights (Slote et al. 2005). A more recent, qualitative investigation of 19 survivor-mothers who had sought child custody found that although all participants reported safety concerns, none who turned to the family courts believed that the courts worked to protect their children (Zeoli et al. 2013). ...
... In some cases, participants even described harsh treatment from professionals, which included being accused of lying, blamed, or disadvantaged because of their disclosures. These findings are consistent with prior research demonstrating a frequent dismissal of abuse in child custody processes, including qualitative accounts of survivors' experiences with secondary victimization and/or harsh treatment by court professionals (e.g., Bemiller 2008;Laing 2017;Rivera et al. 2012;Slote et al. 2005), as well as studies based on court record reviews showing infrequent crediting of abuse claims (Meier and Dickson 2017), or failure to mention IPV in case files even when it is documented elsewhere (Johnson et al. 2005;Kernic et al. 2005). ...
Article
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This qualitative descriptive study examines the perspectives of 19 mothers who survived intimate partner violence (IPV) and sought custody of one or more children through the family court system. We explored these mothers’ perceptions of the nature of court processes from start to finish, their understandings of the impact of court processes and outcomes on their well-being, and their recommendations for improvements to facilitate a process that is sensitive to survivors’ experiences with IPV. Mothers interviewed in this study described an experience that was largely invalidating and distressing, compounding the adverse effects of IPV on their well-being. Qualitative content analysis yielded six clusters: 1) survivors must enter into a court environment that implicitly presumes the absence of trauma, 2) survivors face obstacles to getting their stories of abuse across and heard, 3) survivors experience harmful and helpful interactions with court professionals, 4) survivors endure distress in the courtroom, 5) survivors suffer psychosocial consequences outside of the courtroom, and 6) survivors make recommendations for an improved custody process that is sensitive to experiences of IPV. Results paint a picture of a family court system that has the potential to cause grave, lasting harms to survivor-mothers who are separating from abusive partners.
... All of the studies reached similar conclusions; that gender discrimination against women was alive and well. More recently, Slote et al. (2005) observed that women are held to a higher standard than men in terms of their parenting and that documented incidents of abuse were frequently minimized or discounted. ...
... More recent research on the treatment of women in the family courts has raised other issues as well. Notably, the Wellesley Center's Battered Mothers ' Testimony Project (2005) found that the treatment of battered mothers and their children was in violation of the United Nations' Convention of the Rights of the Child (1989) and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW 1979) (Slote et al., 2005). Gentile (2013) found in a study of the New York City Family Courts that 30% of battered women felt unsafe in the courtrooms while 40% felt unsafe in the waiting areas of the family courts. ...
Article
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The prevention of harm to battered mothers and children during custody and divorce litigation requires a trauma‐informed judicial approach. The existence of competing definitions of domestic violence, gender‐biased theories of parental alienation, and requirements that battered mothers co‐parent have undermined legislation intended to protect victims of domestic violence and their children. An informed judicial response to domestic violence requires mental health professionals who are able to identify the multiple patterns of abuse including physical, emotional, economic, and sexual coercively controlling behaviors, as well as the risks of post‐separation violence. The family courts' lack of transparency and limited public access has further contributed to its reliance on empirically weak gender‐biased parental alienation theories. Mental health professionals who provide interdisciplinary support to these courts must have graduate clinical education in domestic violence, child maltreatment, development, and trauma. Additional systemic changes should include neutral court watch observers to promote accountability and transparency, as well as appropriate services, to these vulnerable families.
... While FRGs assert that the family court unfairly disadvantages fathers over mothers, current scholarship maintains that women/mothers are more likely to be confronted with an adverse experience. For example, the family court system upholds patriarchal values of care in which mothers are held to a higher standard of parenting than fathers in which they are expected to be "friendly parents" that assists in the maintenance of a relationship between a father and their child(ren) (Jaffe et al., 2003;Rivera et al., 2012, p. 237;Slote et al., 2005;Zorza, 2007). This assumption places the onus on women to concede to both the court and men/fathers to maintain a presentation as a competent woman/mother. ...
Thesis
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Research suggests that men and masculinity are in “crisis,” because men’s historically unquestioned privilege and patriarchal power are being challenged through advances toward equity for other groups. Yet, such scholarship does not sufficiently address the processes through which men may attempt to restore the power they feel has been lost. Through in-depth interviews, this research examines the experiences and beliefs of 14 men who were part of a rights-based social movement (i.e., fathers’ rights movement). The resulting analysis highlights the barriers perceived as hindering men’s fulfillment of ideal manhood and concludes with a consideration of these men’s attempts to garner support for their movement and (re)claim more traditional masculinity. In sum, this research demonstrates the existence of a contradiction between situating these groups as a platform for men’s advocacy and support and, in reality, their perpetuation and normalization of anti-women/feminist rhetoric through engaging in and upholding hegemonic masculinity and patriarchy
... Battered Mothers Speak Out, a report by the Wellesley Centers for Women, found that family courts in Massachusetts were committing a number of human rights violations, and called for reforms to adequately protect women and children from abuse. 261 Activists and organizations within the reproductive rights movement have also used a form of human rights documentation to advocate for reproductive healthcare, including legal and accessible abortion services. For example, in the consolidated cases of Gonzales v. Carhart and Gonzales v. Planned Parenthood, determining the legality of the Partial Birth Abortion Ban Act of 2003, the Institute for Reproductive Health Access and fifty-two clinics and organizations filed an amicus brief in support of the respondents. ...
Article
This Article considers the varying reasons why drug policies informing child welfare interventions are not evolving as part of the drug policy reform movement, which has successfully advocated for initiatives that decrease mass incarceration, end mandatory minimums, and decriminalize or legalize marijuana use and possession. Many existing child welfare laws and policies that address parental drug use rely on the premise that prenatal exposure to a controlled substance causes inevitable harm to a child. Furthermore, they presume that any amount of drug use by a parent places a child in imminent danger, or is indicative of future risk of harm. Child welfare authorities will initiate investigations based on these assumptions, and once a case is opened in family court, the family is often split apart while drug-using parents are assessed, evaluated, and referred to inadequate substance abuse treatment by poorly trained caseworkers. An analysis of evidence-based studies reveals that there is no scientific determination that exposure to substances like cocaine, methamphetamine, opiates, or marijuana will inevitably cause harm to a fetus. Additionally, research has shown drug use by a parent or parents does not on its own increase threats to child safety or predict future maltreatment. Furthermore, a review of data on court-mandated substance abuse treatment and other services finds that child protective services workers are severely limited in their assessment and evaluation of drug-using parents, and often overlook greater service needs at play, including domestic violence counseling and housing assistance. Despite being borne out of the same false assumptions and outdated research, child protective services’ response to drug- using parents remains disproportionately punitive while the criminal justice system’s policies on drug offenders are softening. This Article argues that this dichotomy exists, in large part, because the media-spun image of drug offenders has evolved into one that is sympathetic and relatable, while the narrative surrounding drug-using parents remains stagnant: the selfish mother who loves drugs more than her baby. After exploring several reasons why this narrative persists, I suggest that, in addition to advocating for changes to state and federal policies that can positively impact child welfare system-involved families, the drug policy reform movement also must encompass changing public perceptions surrounding drug-using parents through comprehensive family defense practice, domestic human rights documentation, and facts-driven journalism.
... Abusive former partners are more likely to seek sole physical and legal custody than non-abusive former partners, and are often awarded custody even with documented, substantiated and criminal convictions of IPV against the mother (Bancroft et al., 2002;Meier, 2020;Miller & Smolter, 2011;Silberg & Dallam, 2019). When abusers fight for and obtain custody, what they are often looking for is not more meaningful involvement with their children, but rather acknowledgement of their status and importance (Bancroft et al., 2002;Brown et al., 2019;Silverman et al., 2004;Slote et al., 2005). The cumulative impact of domination, power and control tactics is that mothers experiencing post-separation abuse are rendered powerless to protect their children and powerless to escape ongoing abuse (Gutowski & Goodman, 2020). ...
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Aim To report an analysis of the concept of post‐separation abuse and its impact on the health of children and adult survivors. Design Concept analysis. Data Sources A literature search was conducted via PubMed, Cochrane and Embase and identified articles published from 1987 to 2021. Methods Walker and Avant's (2019) eight stage methodology was used for this concept analysis, including identifying the concept, determining the purpose of analysis, identifying uses of the concept, defining attributes, identifying a model case and contrary case, antecedents and consequences and defining empirical referents. Results Post‐separation abuse can be defined as the ongoing, willful pattern of intimidation of a former intimate partner including legal abuse, economic abuse, threats and endangerment to children, isolation and discrediting and harassment and stalking. An analysis of literature identified essential attributes including fear and intimidation; domination, power and control; intrusion and entrapment; omnipresence; and manipulation of systems. Antecedents to post‐separation abuse include patriarchal norms, physical separation, children, spatiality and availability, pre‐separation IPV and coercive control and perpetrator characteristics. Consequences include lethality, adverse health consequences, institutional violence and betrayal, such as loss of child custody and economic deprivation. Conclusion This concept analysis provides a significant contribution to the literature because it advances the science for understanding the phenomenon of post‐separation abuse. It will aid in developing risk assessment tools and interventions to improve standards of care for adult and children survivors following separation from an abusive partner. Impact This concept analysis of post‐separation abuse provides a comprehensive insight into the phenomenon and a theoretical foundation to inform instrument development, future research and intervention. Post‐separation abuse is a complex, multi‐faceted phenomenon that requires differential social, legal and healthcare systems responses to support the health and well‐being of survivors and their children.
... Human rights research which used qualitative narratives from battered women, advocates, and, when possible, judges and custody evaluators, has been particularly helpful. Notably, the research of Slote et al. (2005) with the "Battered mothers' testimony project at the Wellesley Centers for Women", found that the treatment of victims rose to the level of human rights violations. These findings were also affirmed by the Voices of Women Organizing Project (2008) in New York City, and the Arizona Coalition Against Domestic Violence (2003). ...
Article
Full-text available
There is a significant body of research on gender bias against women in the family courts. During the Covid-19 pandemic, battered women's vulnerability to domestic violence increased on a global level as women experienced a significant increase in the severity of abuse. The problems of gender bias and the treatment of battered women and their children have a long history of human rights' abuses. In particular, battered mothers have been the focus of gender-biased theories of parental alienation, used as a defence against claims of abuse and child maltreatment, despite a lack of empirical validity and acceptance. Additionally, the family courts in the United States are closed to the public and as a result there is a lack of transparency and accountability. A large-scale national study revealed that many supporting mental health professionals who provide custody evaluations lack a formal graduate education in domestic violence and child maltreatment. Furthermore, legislative presumptions that favour joint legal custody in custody decisions and requirements of co-parenting, fail to take into consideration the long-term public health risks of such chronic traumatic exposure. Finally, this article will address needed systemic reforms that include increased transparency, longterm court-monitoring, and supporting mental health professionals with formal graduate education in trauma, child development, and abuse, to promote resilience in vulnerable families.
... With this regard, victims may suffer additional victimization because after breaking up with their romantic relationship the vast majority of victims continue to suffer abuse from their abusive partner, who uses the children as a means to harm the victim (Bemiller, 2008;Moe, 2009;Rivera, Sullivan, & Zeoli, 2012). More specifically, different studies have shown that victims of IPV reported that their abusive partner exercised control over them by means of threats such as physical abuse or death of their children (e.g., Hardesty & Ganong, 2006;Rivera et al., 2012;Slote et al., 2005). In addition, both victims who have custody of their children and those who do not have it reported having faced obstacles with their abusive partner (Rivera et al., 2012). ...
Chapter
The concept of karma (which means that the actions in this birth and previous births will determine the current fate) is exercised as a tool with some explanatory power to help promote understanding about a range of social problems in the South Asian culture. Through an exploration of indepth telephonic interviews conducted with a convenience sample of 20 South Asian women (originally from India, Pakistan, Bangladesh, Sri Lanka, Maldives and Bhutan) in the United States, this chapter discusses these South Asian women’s experiences of domestic violence and helpseeking practices, in the context of the concept of karma as a unit of analysis. This study found that due to belief in karma (fate/destiny), South Asian women tend to endure violence for longer periods of their lives and therefore are reluctant to seek help. Additionally, the chapter highlights the meanings, events, processes and structures in the lives of South Asian women respondents living in the United States. Within the framework of discussion on karma and domestic violence (DV), the chapter emphasizes the need to offer culturally sensitive services and encourage the agency personnel to understand the ways South Asian women have coped on their own and within their own belief systems.
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The aim of this scoping review was to synthesise the literature to identify what the psychological impacts of family court processes were on mothers who had experienced DFV. Twenty-five articles met inclusion criteria with four themes capturing the findings: Perpetrators using the system as a mode of coercive control; Secondary victimisation as a result of interacting with the system; Required to relive their abuse; and, Long-term psychological consequences of having engaged with the system. Key findings were that perpetrators manipulated the system to perpetrate further abuse and continue/reassert their control. Secondary re-victimisation was common, with poor knowledge of DFV and limited understanding of coercive control tactics and how these were employed by perpetrators by legal professionals identified as contributing factors. This review suggests that mothers who engage with the family court system experience a range of short- and long-term psychological impacts and court processes facilitate ongoing abuse by the perpetrator.
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This study extends existing research into abusive men’s use of children as part of their strategies to undermine mothering roles: target women as mothers, damage mother–child relationships and cause mother–child separations. It is the first British study into strategic mother–child separation to be conducted with mothers who were actually separated from their children. The purpose of the study was to illuminate the tactics used in this type of coercive control, to assist women and practitioners to address this problem using recent UK coercive control legislation. Qualitative accounts of six women who described having their children turned against them by abusive ex-partners (who were also the children’s fathers) were examined. Thematic analysis identified eight themes as perpetrator tactics of strategic separation: 1) Lying to and manipulating children; 2) Sabotaging children’s contact with their mothers; 3) Weaponising children; 4) Conditioning children through reward and punishment; 5) Exploiting women’s vulnerability, particularly as mothers; 6) Threatening mothers with taking their children from them; 7) Actively employing mother-blaming by exploiting mother-blaming institutions and practices; and 8) Denigrating mothers and elevating themselves in order to supplant mothers as children’s primary caregivers and attachment figures. Because service responses fail to address this aspect of men’s violence against women and children, the article is positioned to inform policy, practice and service provision. Limitations are outlined and areas for further research highlighted.
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While domestic violence and child abuse are known to be highly correlated, several related areas of functioning of victim mothers and children are not well researched and have implications for the provision of services. Fifty mothers and children were referred by service agencies for independent structured interviews and psychological assessment. Assessment focused on evidence of posttraumatic reexperiencing, avoidance, physiological arousal, associated symptoms, and parenting skills. A complex pattern of results documented high levels of abuse and associated trauma disorders in both the children and their mothers. However, the presence of disorders was generally not correlated between children and mothers, and affected mothers were less likely to seek mental health services for their children (PsycINFO Database Record (c) 2012 APA, all rights reserved)
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A Review of The Batterer as Parent: Addressing the Impact of Domestic Violence on Family Dynamics, 2nd Edition, by Lundy Bancroft, Jay G. Silverman, and D. Ritchie.
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This article presents a review of the empirical literature examining the initial effects of witnessing domestic violence on children's functioning. Previous reviews of the literature suggested that witnessing was harmful to children, but they also indicated that the state of knowledge was quite limited due to an emphasis on exploratory methodologies, reliance on untested theories, and inconsistent findings. Nearly a decade of research has been conducted since the most recent review. Although results are still somewhat inconclusive regarding children's social, cognitive, and physical development, the findings of recently conducted investigations, when combined and compared with the previously reviewed literature, suggest much less equivocation concerning the negative effects of witnessing domestic violence on children's emotional and behavioral development. Theoretical developments and methodological refinements appear related to the recent findings.
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This article addresses custody and visitation trends in domestic violence cases in the United States. It defines domestic violence behaviorally, looks briefly at its prevalence, and discusses national policy statements and studies. It also examines statutory trends concerning the role of domestic violence in custody and visitation cases, including the O. J. Simpson guardianship case. Practical suggestions for litigants and judges are included. The article concludes that the way domestic violence issues are treated in custody and visitation cases is often problematic, and calls for specific reforms.