Judicial supervision of offenders is an important component of many family violence courts. Skepticismconcerning the ability of offenders to reform and a desire to protect victims has led to some judges to usesupervision as a form of deterrence. Supervision is also used to hold offenders accountable for following courtorders. Some family violence courts apply processes used in drug courts, such as rewards and sanctions, topromote offender rehabilitation. This article suggests that while protection and support of victims should bethe prime concern of family violence courts, a form of judging that engages offenders in the development andimplementation of solutions for their problems and supports their implementation is more likely to promotetheir positive behavioral change than other approaches to judicial supervision. The approach to judgingproposed in this article draws from therapeutic jurisprudence, feminist theory, transformational leadershipand solution-focused brief therapy principles.
nce Courts in the United States,le.exe?CISOROOT=/famct&CI-
Ross Hyams, Non-Adversarial
3 Robyn Mazur anLessons from New YLabriola and RoberRecidivism? Results oAgainst Women 185
The principal focus of family violence courts is to enhance thesafety and wellbeing of victims and to hold offenders accountable fortheir behavior.1 There are various models of family violence courts.Most include several of the following elements: the issue of protectionorders in favour of victims; the provision of court, treatment andwelfare related support services for victims; a coordinated approachto the detection and prosecution of family violence cases through thecooperation of justice and community agencies; expeditious trialprocesses for family violence cases; unified jurisdiction to deal withcriminal, civil and family law aspects of family violence cases; andcourts ordering offenders to participate in treatment programs oftenwhile subject to judicial monitoring. Family violence courts arecommonly classified as problem-solving courts and are also part of thebroader “non-adversarial justice” movement.2
This article discusses the different approaches to judging in familyviolence courts and the principles underlying them. It focuses on thepractice of judicial monitoring, that is, regular appearances by offendersbefore a judgeormagistrate. Judicialmonitoring canhavedifferentgoalsdepending on the context, including achieving enforcement, ensuringvictim safety, promoting offender accountability and/or promotingoffender motivation to engage in positive behavioral change while
supporting them through the process. The judging practices of eachfamily violence court are informed by which particular goals it adopts.
This article suggests that some approaches to judicial monitoringhave been largely ineffective as they have been unduly restrictive intheir goals and practices. A holistic model of judicial monitoring that isdirected to all of the previously mentioned goals is proposed in thisarticle. That model incorporates principles taken from therapeuticjurisprudence, transformational leadership theory and feministaccounts of family violence. Accordingly, the article outlines a rangeof practices that judicial officers can use to enhance judgingeffectiveness in family violence courts. Some of these principleshave wider application beyond family violence cases to problem-solving courts generally. The article is written for an internationalaudience but is strongly informed by our Australian perspective.
2. Judicial monitoring: Purpose, styles and influences
Judicial monitoring of offenders is considered to be best practice infamily violence courts in the United States.3 However, it is only used intwo jurisdictions in Australia – South Australia andWestern Australia –and in a more attenuated form than in the United States.
Judicial monitoring properly takes place in the context of a holistic,coordinated community and court-based response to the problem offamily violence and is not seen as substitute for other forms ofinterventions in family violence cases, including safety plans, arrest
d Liberty Aldritch, What Makes a Domestic Violence Court Work?ork, 42(2) Judges Journal 5 (2003); Michael Rempel, Melissat C. Davis, Does Judicial Monitoring Deter Domestic Violencef a Quasi-Experimental Comparison in the Bronx, 14(2) Violence, 186 (2008).
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policies, victim support services, educational perpetrator programs,and therapeutic work.4 Judicial monitoring is presented in this articleas an addition to existing community and criminal justice programsthat would operate in conjunction with other services. Courts shouldchoose a form of judicial monitoring that best fits with existing localfamily violence interventions.
Research suggesting that family violence perpetrator treatmentprograms are ineffective has led many courts to focus on promotingaccountability of perpetrators so that they encourage perpetrators toabstain from offending and to otherwise comply with court orders.Family violence courts which adopt this approach generally refrain fromreference to rehabilitation as anexpress goal.5 Theprinciple of deterrence–using the coercive powers of the court– to compel compliancehas beena dominant influence in the practice of judicial monitoring in manydomestic violence courts. This approach readily leads to a focus on thedeficiencies of the offender and how they can be kept in check.
This section of the article begins by discussing the influence oftherapeutic jurisprudence on the practice of judicial monitoring in familyviolence courts. It then canvasses available research into the use ofjudicial monitoring in the family violence court context and finishes byexamining various forms of judicial monitoring that are used by familyviolence courts. These issues are explored in order to better understandthe tenets of the approach to judicial monitoring proposed in this article.
2.1. Therapeutic jurisprudence
Therapeutic jurisprudence has been an influence on family violencecourts. It examines the effect of laws, legal processes and legal actors (suchas judicial officers and lawyers)on thewellbeingof those involved.6 It usesfindings from the social sciences to suggest reforms to the way that laws,legal processes and legal actors operate to minimise negative effects onwellbeing and to promote positive effects— particularly when associatedwith justice systemgoals such as theprevention and resolutionof conflict,supporting victims, and the rehabilitation of offenders.
Therapeutic jurisprudence is not oriented towards the interests ofany particular institution or group — such as offenders.7 It hasexamined the effect of laws, legal processes and legal actors on thesituation of both victims and perpetrators of family violence andsuggested reforms.8 For example, in relation to victims, Bruce Winick,
4 There are a number of well-known coordinated community and criminal justicebased programs aimed at protecting women by reducing family violence. The mostfamous of these is “DAIP” the Domestic Abuse Intervention Project in Duluth,Minnesota which aims to ensure victim safety through ensuring that practitionersrespond to family violence cases in a consistent manner that centralizes victim safety.See Ellen L. Pence and Coral McDonnell, Developing Policies and Protocols in Duluth,Minnesota, in Home Truths About Domestic Violence: Feminist Influences on Policyand Practice: A reader (Jalna Hanmer and Catherine Itzin eds., 2000), 249.
5 MazurandAldritch, supranote3;RobertV.Wolf, LibertyAldrich andSamanthaMoore,Planning a Domestic Violence Court, 7 (2005), http://www.courtinnovation.org/_uploads/documents/dvplanningdiary.pdf; Greg Berman and John Feinblatt, Good Courts: The Casefor Problem Solving Justice 102 (2005).
6 David B. Wexler, Therapeutic Jurisprudence: The Law as a Therapeutic Agent(1990) 4. For international resources on therapeutic jurisprudence, see the Interna-tional Network on Therapeutic Jurisprudence at http://www.law.arizona.edu/depts/upr-intj. For Australian and New Zealand resources on therapeutic jurisprudence, seethe Australasian Therapeutic Jurisprudence Clearinghouse via a link at: http://www.aija.org.au.
7 The following suggest that therapeutic jurisprudence is offender-oriented but donot canvas the evidence for and against that proposition: Julie Stewart, SpecialistDomestic/Family Violence Courts Within the Australian Context, Australian Domestic andFamily Violence Clearinghouse Issues Paper 10, 5 and 35 (2005); Robyn Holder, TheEmperor's New Clothes: Court and Justice Initiatives to Address Family Violence, 16 JJA 30,37 (2006). For a critique of this view, see Michael S. King, Restorative Justice,Therapeutic Jurisprudence and the Rise of Emotionally Intelligence Justice, 32 Melb U. LawRev. 1096, 1116–1117 (2008).
8 For example, Leonore M. J. Simon, A Therapeutic Jurisprudence Approach to the LegalProcessing of Domestic Violence Cases 1 Psychol. Pub. Pol'y & L.43 (1995); Bruce J.Winick, Applying the Law Therapeutically in Domestic Violence Cases, 69 UMKC L. Rev 33(2000); Rebecca Fialk and Tamara Mitchel, Jurisprudence: Due Process Concerns for theUnderrepresented Domestic Violence Victim, 13 Buff Women's L.J 171 (2004–2005).
who along with David Wexler first developed the concept oftherapeutic jurisprudence, has suggested that family violence courtscan act as advocates for victims by facilitating swift prosecution ofcharges and issue of protective orders and providing appropriatesupport services.9 Winick has also emphasized the need for judicialofficers, police and prosecutors to consider the situation andwishes ofvictims in making their decisions and to be trained in relation to theeffects of family violence on victims, including children of theparties.10He has called for justice system professionals to be trainedin the use of interpersonal skills such as listening and the expressionof empathy in interacting with victims; and suggested that justicesystem professionals accord victims' voice, validation and respect.11
Finally Winick has suggested the use of videotaped testimony in courtin circumstances where a victim does not wish to confront theoffender.12
The application of therapeutic jurisprudence principles to a familyviolence context should not be confused with the notion that atherapeutic “cure” for family violence is possible— it is not an attemptto reduce the causes of family violence to a medical condition or adefective personality.13 Rather, the combination of therapeuticjurisprudence and feminist approaches engenders practices in familyviolence courts which recognise the socio-political context of familyviolence and which focus on the psychological needs of individualvictims and offenders through the legal process.
Winick has also suggested that therapeutic jurisprudence canenhance rehabilitation outcomes concerning perpetrators by promot-ing motivational mechanisms.14 He refers to research that coercion orpaternalistic approaches promote resistance to behavioral change.15
As an antidote, he suggests that courts could ask perpetrators toformulate their rehabilitation plans, could listen to them, expressempathy for the offender's situation and exercise an ethic of care. Hesuggests that regular court review and a system of sanctions andrewards could be used to enhance perpetrator compliance.
One of the principal influences on therapeutic jurisprudencethought and practice relating to family violence courts and offendersis cognitive behavioral theory.16 Beck's cognitive learning theoryfocuses on how people perceive and interpret situations in life.17 Itasserts that emotionally disturbed people's automatic thoughts thatare exaggerations, unrealistic, mistaken, or distorted affect theirperception and understanding of incidents. It refers to these thoughtsas cognitive distortions. A cognitive behavioral approach seesproblematic behavior to be the product of faulty thinking andperception and the remedy as challenging faulty thinking andchanging the way people think about situations.18
Maruna and Mann point out that the term “cognitive distortion”has assumed a different meaning in the context of dealing withoffenders.19 Blumenthal, Gudjonsson and Burns define cognitivedistortion as “attitudes and beliefs which offenders use to deny
9 Winick, Applying the Law Therapeutically, supra note 8, at 41 and 60–67.10 Id.11 Id.12 Id.13 Dobash and Dobash are critical of the medicalised construction of the “batteredwoman” and the “violent man.” They argue that this stance focuses too much on theindividual and discounts the broader socio-political context of family violence. See R.Emerson Dobash and Russell P. Dobash, Women, Violence and Social Change 213–250(1992). See also, Linda Gordon, Heroes of Their Own Lives: The Politics and History ofFamily Violence, Boston 1880–1960 5 (1988).14 Winick, Applying the Law Therapeutically, supra note 8, at 41–43.15 Winick, Applying the Law Therapeutically, supra note 8; Bruce J. Winick, OnAutonomy: Legal and Psychological Perspectives, 37 Vill. L. Rev. 1705 (1992).16 Simon, supra note 8.17 Aaron T. Beck, Cognitive Therapy and the Emotional Disorders (1989).18 Judith Milner and Steve Myers, Working With Violence: Policies and Practices inRisk Assessment and Management ch. 4 (2007).19 Shadd Maruna and Ruth E. Mann, A Fundamental Attribution Error? RethinkingCognitive Distortion, 11 Leg. Crim. Psychol 155 (2006).
29 John S. Goldkamp, Michael D. White and Jennifer B. Robinson, An Honest Chance:Perspectives on Drug Courts: Findings from Drug Court Participant Focus Groups inBrooklyn, Las Vegas, Miami, Portland, San Bernadino and Seattle April 2002, 14 Fed. Sent.R. 369, 371 (2002).
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minimise, rationalise and justify their behavior”.20 Thus, domesticviolence offenders may deny being violent, minimise or justify whatthey have done or blame the victim.
Simon asserts that: “A therapeutic approach to the legal handlingof domestic violence offenders can use the principles of cognitivetherapy to confront batterers' faulty thinking and promote moreadaptive cognitive processing”.21 She suggests that the criminaljustice system can counter offenders' cognitive distortions throughstrategies including prompt prosecution of offences by police,avoiding plea bargains that minimise responsibility of the offenderand sentencing of domestic violence offenders in a way commensu-rate to other offenders. In Simon's view, family violence judges can“confront offender minimisation of violations by monitoring, identi-fying and sanctioning them”.22
Wexler has suggested that a judge could play a role in counteringcognitive distortions by engaging in detailed questioning of anoffender about the factual basis of his guilty plea.23 Although raisedin the context of sex offenders,Wexler suggested that the processmayhave application to other offenders. However, he emphasizes the needfor empirical research to determine the suitability of this approach.
Confronting a perpetrator's cognitive distortions and attemptingsome degree of cognitive restructuring has been presented as one ofthe principles of an effective family violence court and is associatedwith a therapeutic jurisprudence approach to judging in dealing withfamily violence offenders.24
2.2. Research into judicial monitoring and family violence courts
Research on the effects of judicial monitoring in family violencecourts has been limited and the results are mixed. While there aresignificant differences between drug courts and family violencecourts, it is nevertheless noteworthy that research on drug courtssuggests that judicial monitoring promotes reduced recidivism anddrug abuse.25 Some early studies, although limited in design,suggested that judicial monitoring in family violence courts reducedrecidivism.26 However, a recent study of the Bronx Domestic ViolenceCourt by Rempel, Labriola and Davis found that judicial monitoringhad no effect on recidivism or in delaying its onset.27 They suggestedthat a possible reason for this result was the limited interaction thattook place between the official responsible for monitoring (a retiredjudge) and the defendants. Indeed, monitoring was limited to ensurethat defendants hadmet their obligations and to remind them of theircontinuing obligations through setting new review dates andreferring breaches to a sitting judge for disposition.
Research on the quality of interaction between the judicial officerand the defendant is limited, but suggests that it is important inpromoting problem-solving court outcomes. For example, Senjo andLeip's exploratory study of a drug court found that the manner ofjudicial interaction with defendants can promote treatment compli-ance and abstinence from drugs.28 In particular, they found that
20 Quoted in Maruna and Mann supra note 19, at 159.21 Simon supra note 8, at 57.22 Simon supra note 8, at 57.23 David B. Wexler, Therapeutic Jurisprudence and the Criminal Courts, in Law in aTherapeutic Key 157 (David B. Wexler and Bruce J. Winick eds., 2006).24 Randal B. Fritzler and Leonore M. J. Simon, Creating a Domestic Violence Court:Combat in the Trenches, 37(1) Court Rev 28, 31 (2000); Lynn S. Levey, Martha W.Steketee and Susan L. Keilitz, Lessons Learned in Implementing an Integrated DomesticViolence Court: The District of Columbia Experience 5 (2000), ww.ncsconline.org/WC/Publications/KIS_FamVioImpIntgDomVioCt.pdf.25 Rempel et al., supra note 3.26 Id.27 Id.28 Scott R. Senjo and Leslie A. Leip, Testing and Developing Theory in Drug Court: A FourPart Logit Model to Predict Program Completion, 12 Crim. Justice Policy Rev. 66 (2001);Scott R. Senjo and Leslie A. Leip, Testing Therapeutic Jurisprudence Theory: An EmpiricalAssessment of the Drug Court Process, 3(1) W. Criminology Rev. 2 (2001), http//wcr.sonoma.edu/v3n1/senjo.html.
defendants receiving the most supportive comments from the judge(e.g., praise and encouragement) were more likely to complete theprogram than those with fewer supportive comments. A studyinvolving focus groups of drug court participants found significantsupport for the role of the judge in promoting treatment complianceand in promoting wellbeing.29
Petrucci's study of a domestic violence court found that judicialinteraction that encouraged shared respect between a judge and adefendant may be the basis of promoting a defendant's compliancewith the court program.30 The judicial approach she observed was“caring, genuine, and consistent but firm”.31 She noted that it included“actively listening to defendants and seldom interrupting them whenthey spoke, body-language that demonstrated attentiveness, andspeaking slowly, clearly and loudly enough to be heard, whileconveying concern and genuineness”.32 The judicial interactioninvolved explaining, negotiating, giving positive encouragement,confronting, cautioning, warning, thanking and referring to thedefendant's both current and anticipated progress.33
Values noted by Petrucci such as the court treating defendantswith respect, enabling them to present their case, carefully listening tothem and taking what they say into account in making a decision areseen to be important in procedural justice research. Those accordedprocedural justice are more likely to respect the legal authorityresponsible for the decision and to comply with their orders.34
Research has shown that procedural justice is important in the familyviolence context. Paternoster and his colleagues found that whenpolice accorded perpetrators procedural justice, the rate of subse-quent family violence was less than when they were not.35 Researchinto a domestic violence court in South Carolina, although finding thatthe court program reduced recidivism and accorded proceduralfairness to victims and perpetrators, did not measure a causal linkbetween the two.36 Still, it suggests the value of courts according toprocedural justice in domestic violence cases.
Petrucci notes that the judge in the domestic violence courtassumes multiple roles such as being an “authority, motivator,problem-solver, and monitor”.37 That is a larger role than merelyaccording procedural justice. This motivational, problem-solvingapproach is one suggested by therapeutic jurisprudence.
2.3. Forms of judicial monitoring used in family violence courts
There are a number of possible approaches to judicial monitoringthat have been taken by family violence courts in their jurisdictions ofpractice. A minimalist approach to judicial monitoring involves thecourt adjourning a case while an offender engages in treatment
30 Carrie J. Petrucci, Respect as a Component in the Judge-Defendant Interaction in aSpecialised Domestic Violence Court that Utilises Therapeutic Jurisprudence, 38 Crim. L.Bull. 263 (2002).31 Id. at 288.32 Id. at 299.33 Id. at 299.34 E. Allan Lind and Tom R. Tyler, The Social Psychology of Procedural Justice (1988);Tom R. Tyler, The Psychological Consequences of Judicial Procedures: Implications for CivilCommitment Hearings, in Wexler and Winick, supra note 23, at 3; Tom R. Tyler, WhyPeople Obey The Law (2006).35 Raymond Paternoster, Ronet Bachman, Robert Brame and Lawrence W. Sherman,Do Fair Procedures Matter? The Effect of Procedural Justice on Spouse Assault, 31 Law &Soc'y Rev. 163 (1997).36 Angela R. Gover, John M. MacDonald and Geoffrey P. Alpert, Combating DomesticViolence: Findings from an Evaluation of a Local Domestic Violence Court, 3 CriminologyPub. Pol'y 109 (2003); Angela R. Gover, Eve M. Brank and John M. MacDonald, ASpecialised Domestic Violence Court in South Carolina: An Example of Procedural Justicefor Victims and Offenders, 13 Violence Against Women 603 (2007).37 Petrucci, supra note 30, at 288.
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programs. This kind of approach is used in family violence courts inAdelaide and Joondalup, Australia. The offender returns to court eitheron completion of the program or in case of a breach of programconditions. During the program a review hearing maybe scheduled. Atleast one court in Croydon,UnitedKingdomuses reviewhearings.38 Thiskind of judicial monitoring is directed more to accountability, makingsure that the offender fulfils his obligations under the court orderrefraining from any further offences.39 A breach action results insentencing and removal from the program. Completion of the programconstitutes evidence in mitigation of penalty. Payne suggests that thepurpose of this kind of monitoring is really for case determination.40
However, with the introduction of new family violence courts in theState of Western Australia, rehabilitation and behavioral change arebeing emphasized as an important role of the court.41
Some United States family violence courts – such as those in NewYork – use a second approach. Close and regular judicial monitoring ofoffenders based on the principle of deterrence and the court's coercivepowers. Offenders are aware that the court is closely monitoring themand that if they re-offend or fail to comply with the program conditionsthen the court will immediately take remedial action which can includeimprisonment. As oneNewYork judgeput it, “I see defendants every twoto three weeks just to let them know the court is watching them.”42 Atthese hearings the court receives a report as to the defendants'compliance with the program. Although offenders are required toparticipate in a batterers' program, this is for monitoring rather than forrehabilitation purposes.43
A third approach is to use judicial monitoring both as a means ofensuring the victim's safety and as a way of promoting the offender'smotivation to change and his progress through the court program.Regular review hearings are scheduled for this purpose. A system ofsanctions and rewards are the principal tools used to promoterehabilitation and compliance. For example, the domestic violencecourt in Clark County, Vancouver, Washington, USA uses praise and thelifting of restrictions where appropriate as rewards. The court also usesmore regular court appearances, work crew, alternative communityservice, electronically monitored home confinement, more restrictedterms of probation, more intensive treatment or imprisonment assanctions.44 This approach draws on principles of therapeutic jurispru-dence.45 However, the extent to which therapeutic principles areapplied will vary between courts.
The use of sanctions, rewards, and promotion of offenderengagement in rehabilitation is also a technique used by drug courts.But the thinking in the United States is that domestic violence courtsshould not operate like drug courts. This reasoning is based on the factthat drug courts deal with non-violent offenders who wish to engagein rehabilitation, whereas in domestic violence courts, commonlyneither party wishes to be there and the offender has been violent.46
38 Christine Vallely, Amanda Robinson,Mandy Burton and Jasmin Tregidga, Evaluation ofDomesticViolencePilot Sites at Caerphilly (Gwent)andCroydon2004/05: Final Report (2005),http://www.cps.gov.uk/publications/docs/eval_dv_pilots_04-05.pdf.39 Court Services Division, Department of Justice and Crime Prevention andCommunity Support Division, Western Australian Police Service, Joondalup FamilyViolence Court: Final Report 1 (2002).40 Jason Payne, Specialty Courts in Australia: Report to the Criminology Research Council66 (2005), http://www.criminologyresearchcouncil.gov.au/reports/2005-07-payne/.41 Jim A. McGinty, “New Family Violence Court Opens in Midland” Media Statement,Attorney General of Western Australia, Thursday 17 January 2008, http://www.mediastatements.wa.gov.au.42 Quoted in Judith S. Kaye and Susan K. Knipps, Judicial Responses to DomesticViolence: The Case for a Problem Solving Approach, 27 W. ST. U.L. Rev 1, 7 (1999–2000).43 Wolf et al., supra note 5.44 Randal B. Fritzler and Leonore M. J. Simon, The Development of a Specialised DomesticViolence Court in Vancouver,Washington Utilising Innovative Judicial Paradigms, 69 UMKC L.Rev 139, 171 (2000–2001); See also,MandyMorgan, LeighCoombes and SarahMcGray,AnEvaluation of the Waitakere Family Violence Court Protocols (2007) 37, http://psychology.massey.ac.nz/pdf/Family-Court-Protocols_Apr2007.pdf.45 Winick, Applying the Law Therapeutically, supra note 8.46 Levey et al., supra note 24, at 5.
However, there is evidence that in Australia drug courts are alreadydealing with family violence perpetrators and the hybrid problem-solving court program. The Geraldton Alternative Sentencing Regimehas admitted both family violence offenders and non-violent drugoffenders.47
This article proposes a judicial monitoring approach in familyviolence courts that emphasizes the role of the offender in resolvinghis criminal behavior and its underlying issues. In all cases the safetyof the victim should remain paramount with appropriate orders andstrategies implemented to respect the victim's wishes and to supportand protect her.
The form of judicial monitoring suggested here is based ontherapeutic jurisprudence, transformational leadership theory andfeminist theory and, in concept and practice, has significantsimilarities to solution-focused brief therapy. It acknowledges thatfamily violence occurs in a broader social context and accepts thatindividual men can change their violent behavior in the context ofbroader social change. It has an optimistic view of offenders and theircapacity to draw on inner resources to develop solutions to theirproblems. It does not dwell upon perpetrator dysfunction, deficienciesor past events. It does not ignore the destructive effects of thatdysfunction and past events upon victims. Rather than seeking to keepdysfunctional behavior in check, it promotes perpetrators takingresponsibility for finding and implementing solutions to theirproblems — including their dysfunctional behavior.
Essentially the approach would be for the judicial officer to engagewith defendants, see them as whole human beings with strengths,weaknesses and solutions, actively involve them in decision-makingdirected at promoting their rehabilitation, take an active interest inand support their progress and, as far as possible, use techniques thatpromote them developing a solution in the event that a problemarises. It is solution-focused judging rather problem-focused judging.
The victim plays an important role in this approach. She should beoffered the opportunity of hearing about the program and itselements prior to the court admitting the perpetrator and should beable to present her views as to whether the offender shouldparticipate. In sentencing, the court should take into account andexplicitly refer to the suffering the offender has caused the victimthrough his criminal behavior. Offender accountability must bemeaningful to the victim and the court must consider when hearingthe victim how this can be made so. It is important to explain to thevictimwhy praising offenderswho successfully change their behavior,is a vital part of the process to motivate perpetrators to change. Boththe victim and the offender should be reminded that the court doesnot condone the violence committed by the offender and that thisstyle of judicial interaction does not indicate court acquiescence to thepast violence. If the victim is aware of this aspect of the model she isless likely to have concerns about the process.
Twokey influences on this approach are transformational leadershiptheory and therapeutic jurisprudence. Both share an interest inmotivation, albeit (at least until recently) in separate contexts.48
Transformational leadership seeks topromote outstandingperformancein government, community and business organizations throughstrategies that motivate, including incorporating personal goals intothe larger goals of the organization and giving greater meaning to
47 Jason Payne, The Queensland Drug Court: A Recidivism Study of the First 100Graduates, Australian Institute of Criminology, Research and Public Policy Series No.83, 36 (2008); Michael S. King, Innovation in Court Practice: Using TherapeuticJurisprudence in a Multi-Jurisdictional Regional Magistrates' Court, 7 CIL 86 (2003–2004).48 Michael S. King, Problem-Solving Court Judging, Therapeutic Jurisprudence andTransformational Leadership, 17 JJA 155 (2008).
54 Victorian Law Reform Commission, Review of Family Violence Laws 25 (2006).55 Russell P. Dobash and R. Emerson Dobash, Violence Against Wives (1979); RussellP. Dobash and R. Emerson Dobash, Abuser Programmes and Violence Against Women, inFamily Violence and Police Response: Learning From Research, Policy and Practice inEuropean Countries 191, 193 (Wilma Smeenk and Marijke Malsch eds., 2005)
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individual work; the use of processes that stimulate both heart andmind; giving individuals personal attention, mentoring and supportfrom a leader; and scope for personal development and achievement.49
The approach openly incorporates a feminist understanding of familyviolence into judicial monitoring practices. Family violence is placed byjudicial offers in its social context and is seen as systemic and genderedexercise of power by men over women. The violence must not bedismissed or played down by the judicial officer. The approachemphasizes the importance of taking steps to protect the victim fromharm and of involving the victim (if she so wishes) in developingsolutions.
The approach proposed has similarities to solution-focused brieftherapy. This therapy suggests that people have the inner resources andshould be responsible for developing solutions to their problematicbehavior.50 It works with clients to identify personal strengths fordeveloping strategies to avoid engaging in problematic behavior.Solution-based therapy has been used with both victims and perpe-trators of family violence. Preliminary research, discussed later in thisarticle, suggests that it offers significant benefits for both victims andperpetrators.
This approach also has similarities to rehabilitativemethods that seekto address the whole person and to enable offenders to build on theirstrengths as a basis for a rehabilitation strategy.51 For example, the goodlives model of rehabilitation values an offender's autonomy and capacityto make certain decisions, including personal preferences as to thecontents of a good life, acknowledging that peopleflourishwhen theycanmake their own decisions about their lives.52 It says that rehabilitationshould take into account a person's strengths and preferences in buildingcapacity and providing resources so they can lead a good life.
The judge's focus in seeking to promote the offender's positivebehavioral change should not be on the offender's personaldeficiencies or past errors, but on his ability to draw from his ownresources for solutions to his problems, to engage in behavioralchange, to formulate a rehabilitation strategy, implement it and torehabilitate. It would be inappropriate, in the context of familyviolence courts, for the judge to use her or his power over the offenderin a coercive manner. Its focus is on the standing of the judicial officeras an authority figure capable of motivating change rather than on hisor her coercive powers. In many cases refraining from the use ofcoercive powers and demonstrating the court's trust in the individualcan be a more powerful motivator for change than coercion.
Overall, this approach to judicial monitoring should be seen as anadditional strategy deployed as part of a coordinated community andlegal response to family violence that centralizes the safety of the victim.This approach does not replace criminal justice practices such ascompensation orders, orders protecting the victim or sentencing. Otheraspects of this response including educational programs for men mayconfront violent men through focusing on their past violence.53
If offenders are included in a family violence program that involvesjudicial supervision, compared with other approaches that do not, it is
49 Id.50 Steve de Shazer, Keys to Solution In Brief Therapy (1985).51 Michael S. King, Deterrence, Rehabilitation and Human Nature: The Need for aHolistic Approach to Offenders, 24 Crim. L. J. 335 (2000); King, Innovation in CourtPractice, supra note 47; Michael S. King and Steve Ford, Exploring the Concept ofWellbeing in Therapeutic Jurisprudence: The Example of the Geraldton AlternativeSentencing Regime (2006) 1 ELaw Journal Murdoch University's Electronic Journal ofLaw (Special Series) 9, https://elaw.murdoch.edu.au/archives/issues/special/exploring.pdf; Tony Ward and Theresa A. Gannon, Rehabilitation, Etiology and Self-Regulation: TheComprehensive Good Lives Model of Treatment for Sexual Offenders, 11 Aggression andViolent Behavior 77 (2006).52 Ward and Gannon, supra note 51.53 For details of pro-feminist, confrontational programs for violent men in the USA andparticularly Britain see Russell P. Dobash, R. Emerson Dobash, Kate Cavanagh and RuthLewis, Confronting Violent Men, in Hanmer and Itzin, supra note 4, at 289. See also, EllenPence and Michael Paymar, Education Groups for Men Who Batter: The Duluth Model(1993).
argued that the form of judicial monitoring described in this articleoffers the best prospects of promoting their positive behavioral change.
The approach to judicial monitoring proposed here is not to beconfused with judicial approaches which condone family violence. Usingjudicial monitoring as a support for offenders to implement positivebehavioral change does not mean ignoring or minimizing the impact oftheir violent behavior. It is crucial to this model that the court denouncesfamily violence as part of the sentencing process. The violence should berecognised for its impact on the victim and must not be minimized.Operating in conjunction with educational programs outside the court-room that address offenders' past violent behavior, the model aims topromote victim safety and offender accountability through attempting toreduce offending behavior inmore effectiveway. Thismodel aims to holdperpetrators accountable for formulating a plan to address their offendingbehavior and for implementing it. Perpetrators are directly accountable tothe court through the regular review hearings and breach processes.
3.1. Feminist approaches to family violence
Understanding the dynamics of family violence assists us toformulate an appropriate and effective legal response to the problem.54
Feminist accounts of family violence emphasize the gendered, systemicnature of family violence. The starting point is usually power — thatfamily violence is not just about committingphysical acts of violencebutis primarily about establishing power and control over the victim.55
Dobash and Dobash (1979) argue that family violence should properlybe conceptualised as a “constellation of abuse”where physical violenceis accompanied by other forms of intimidation and controllingbehavior.56 Central to feminist understandings of family violence arethat it is a gendered phenomenon, an exercise ofmale control, authorityand domination over women which is embedded in a cultural context(even in societies working towards its elimination).57
In heterosexual relationships, women are most commonly thevictims of violence committed by one spouse against another58
although there are less frequent cases of violence by women againsttheir male partners.59 The magnitude of partner violence againstwomen is more significant than that experienced bymen— comparedwith male victims of partner violence, women are three times morelikely to be injured, five timesmore likely to require medical attentionor hospitalisation and five times more likely to report fearing for theirlives as a result of the violence.60 Family violence is not merely anisolated phenomenon that occurs in a tiny minority of cases. A wide-ranging Australian study of violence against women showed that 23%of women who have ever been married or in a de facto partnership
[hereinafter Abuser Programmes]; Rosemary Hunter, Narratives of Domestic Violence, 28SYD L.R. 733, 740 (2006).56 Dobash and Dobash, Abuser Programmes, supra note 55, at 215.57 Id. at 194; Julie Stubbs, Introduction, in Women, Male Violence and the Law 1, 4(Julie Stubbs ed., 1994); Renata Alexander, Domestic Violence in Australia: The LegalResponse 4 (3d ed. 2002).58 See generally Victorian Health Promotion Foundation, The Health Costs ofViolence: Measuring the Burden of Disease Caused by Intimate Partner Violence. ASummary of Findings (2004) 15. Similar evidence has been found in Canada: StatisticsCanada, Family Violence in Canada: A Statistical Profile (Cat. No. 85-224-XIE, 2004) 5where it is clear that females are much more likely than their male counterparts to bevictims of spousal violence: 85% versus 15%.59 Alexander, supra note 57, at 7. Violence is also a significant problem in same sexrelationships and of a similar magnitude to opposite sex relationships, see forexample: Joan McLennan, Domestic Violence Between Same-Gender Partners: RecentFindings and Future Research 20 J. Interpers. Violence 149 (2005); Michael J.Potoczniak, Jon E. Mourot, Margaret Crosbie-Burnett and Daniel J. Potoczniak, Legaland Psychological Perspectives on Same-Sex Domestic Violence: A Multi-SystemicApproach 17 J. Fam. Psychol. 252 (2003).60 Victorian Health Promotion Foundation, supra note 58, at 15.
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had experienced violence at some time during that relationship.61 Arecent comprehensive British study of family violence found similarlythat thirty percent of women had acts of violence perpetrated againstthem by partners or ex-partners, at some time in their lives.62Womenfrom indigenous communities, those in rural areas and from non-English speaking backgrounds remain the least legally protected fromviolence and the threat of violence.63 These figures probably under-represent actual occurrence of family violence because such violenceis notoriously underreported.64
Feminist accounts of violence have been proven across multiplecultures and it is apparent that spousal violence against women ismost likely to occur frequently in societies where sexual economicinequality, violent conflict resolution, male domestic authority anddivorce restrictions are in existence.65 The feminist view has stronglyinfluenced legal responses to family violence, although it is not alwaysimplemented in practice.
Hunter has shown that magistrates issuing intervention orders inone (non-specialist) Australian jurisdiction were not apparentlyconscious of feminist accounts of family violence in their dailypractices, so they minimized the extent of violence and potentiallycompromised the safety of female applicants.66 She argues that judicialdecision-making in relation to family violence must be underpinnedby a “power and control” feminist analysis which incorporates anunderstanding of the varied needs of different groups of women. Herdemand of judicial officers is that “informed rather than partial andunreflective decision making should be an objective and a hallmark ofthe legal system wherever it encounters survivors of violence.”67
Oneof the challengesof themodel of judicialmonitoringproposed inthis article is the adequacy of the skill-base and training of judicialofficers. The particular model of judicial interaction canvassed hereinvolves the exercise of a great deal of skill on the part of participatingjudges.While not all judgeswould bewilling or able to implement thesejudicialmonitoring strategies, in the context of specialist violence courtswebelieve that it is possible to providehigh-quality training to specialistjudges who choose to sit in these courts. The Victorian Law ReformCommission in 2006 recommended training in the dynamics of familyviolence for all magistrates operating in specialist family violence listsand suggesting that they should have regard to those dynamics in theirdecision-making, including that family violence is predominantlyperpetratedbymenagainstwomen.68 Judges already sitting in specialistproblem-solving courts such as mental health courts and drug courtsacquire expertise through training and experience. Significant amountsof literature and training programs have been developed to assistjudicial officers in those courts.69
Judicial decision-making in family violence courts that is fortifiedby a feminist understanding of family violence could adopt key tenets
61 Australian Bureau of Statistics, Women's Safety in Australia (cat no. 4128.0, 1996)(Austl.).62 Jayne Mooney, Revealing the Hidden Figure of Domestic Violence, in Hanmer andItzkin, supra note 4, at 24, 34.63 Australian Aboriginal women have been identified as experiencing extremely highrates of family violence. See, Strategic Partners Pty. Ltd and Research Centre for GenderStudies, University of South Australia, Meta Evaluation of the Partnerships AgainstDomestic Violence, Current Perspectives on Domestic Violence: A Review of Nationaland International Literature 21 (1999) and Pam Greer, Aboriginal Women and DomesticViolence in New South Wale, in Stubbs, supra note 57, at 64–5.64 The 1996 ABS survey found that only 6% of women abused by their current partnerand 35% of women abused by a previous partner reported the latest incident to thepolice: Australian Bureau of Statistics, supra note 61.65 David Levinson, Family Violence in Cross-Cultural Perspective 88–9 (1989).However, it is important to note that this feminist understanding of family violencehas been challenged in some aspects by women of different races, women withdisabilities and lesbians: See, Hunter, supra note 55, at 744–9.66 Hunter, supra note 55, at 772–3.67 Hunter, supra note 55, at 776.68 Victorian Law Reform Commission, supra note 54, at xxiv, xxvii.69 For example, the US National Association of Drug Court Professionals offerstraining programs for judges in motivational interviewing and other skills: http://www.nadcp.org.
of some of the “pro-feminist” interventions, influenced by feministand cognitive behavioral theories, that have been developed to workwith men who commit family violence.70 These abuser programsspecifically acknowledge the gender and power based nature of familyviolence and address both the individual man's violent behavior andthe broader social context that permits family violence.71 Abusers'beliefs that justify violence and control over women are challenged.Dobash and Dobash (1979) write that such programs “offer men newways of thinking and behaving that allow them to build and sustainrelationships free of violence and intimidation.”72
Mirchandani (2006) is optimistic about the feminist promise offamily violence courts. She argues that family violence courts can“contest patriarchy and… use the court's power to re-socializemen intodifferent and less violent forms of manhood.”73 Adopting her optimism,we argue that there is potential for some aspects of pro-feministprograms to be applied in family violence courtswith somesupport fromthe judicial officer. Because of the power differential between the judgeand the perpetrator, the task of intensively dealing with the violentman's actions and attitudes around family violence should be under-taken by support services and treatment programs associated with thecourt rather than inopen court.However, inher orhis interventionswiththe perpetrator and by helping to motivate the perpetrator to engage inpositive behavioral change, the judicial officer can reinforce systemicapproaches addressing violence against women thus, supporting thechallenge to theperpetrator's view that it is acceptable to use violence asameans of control of overwomen. Thiswould be compatiblewith both atherapeutic jurisprudence and feminist approach as it addresses both theholistic nature of the perpetrator's behavior and the socio-culturalaspects of the offence. It would also be compatible with a transforma-tional leadership approach that encourages behavioral change throughpositive interactions with those in power.
3.2. Transformational leadership
Like therapeutic jurisprudence, transformational leadership drawson principles and practices associated with motivation and behavioralchange that have been used in various health, business and communitysettings. It seeks to apply these principles to promote behavioral changeandperformance in excess of normal expectations. For a personwhohasbeen engaged in a long-term pattern of family violence, behavioralchange may well be thought of as performance above normalexpectations, particularly given the negative expectations commonlyexisting in the justice, treatment and community sectors in relation tothe ability of such people to change their behavior.
In particular, transformational leadership is concerned with prac-tices that tap into sources of motivation deep within the individual. Itgives meaning to their personal and group-oriented behavior, stimu-lates both heart andmind, and supports the individual in action throughstrategies, including the positive personal attention and support of aperson in authority who has high expectations of them.
Both therapeutic jurisprudence and transformational leadership,in their particular contexts, see the potential for those in authority toact as a change agent. Indeed, just as leadership can be considered as apositive influence upon another person or group towards theattainment of particular ends, so problem-solving court judging can,in a sense, be considered as a form of leadership. In the context of thedevelopment of his transformational leadership theory, Bass (2006)
70 The Duluth DAIP model from Minnesota is often adopted and adapted as aprototype for these programs, especially in the UK: See, Joan Ormer, Lena Dominelliand Audrey Mullender, Working With Violent Men from a Feminist Social WorkPerspective, 43 Int. Soc. Work 89, 97 (2000). See generally, Dobash and Dobash, AbuserProgrammes, note 55; Dobash and Dobash supra note 13, at 240–50.71 Dobash and Dobash, Abuser Programmes, supra note 55, at 196.72 Id. at 197.73 Rekha Mirchandani, “Hitting is not Manly:” Domestic Violence Court and the Re-Imagination of the Patriarchal State, 20 Gender Soc 781, 792 (2006).
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described the range of leadership behavior: laissez-faire leadership iswhere the leader is uninvolved and allows followers to act withoutparticular direction.74 Management by exception is where the leadereither monitors a follower's behavior to ensure that a mistake is notmade or waits until a mistake is made before intervening. Contingentreward is a transactional form of leadership: a reward is provided inexchange for satisfactory performance. If the reward is material, thenit is transactional in nature; but if it is psychological – such as praise –
then it can be transformative. Transformational leadership completesthe range of leadership behavior. Research has found that transfor-mational leadership is more effective in promoting follower satisfac-tion and performance than other forms of leadership.75
At first glance, the first two approaches to judicial monitoringin a family violence court described previously appear to be likemanagement by exception in that the judicial officer only interveneswhen there has been a mistake or closely monitors to ensure amistake is not made. However the analogy is not complete in that insuch cases often there is ongoing monitoring of an offender whetherby a probation officer or a court team. The third form of judicialmonitoring with its use of sanctions and rewards is analogous tocontingent reward style of leadership. Transformational leadershiptheory and research suggests that more effective leadership draws ontransformational strategies.
3.3. Solution-focused brief therapy
The model of judicial monitoring suggested in this article also hassignificant similarities in concept and practice to solution-focused brieftherapy. Both are optimistic, present or forward-focused, goal-oriented,cooperative approaches that respect people as sources of solutions totheir problems and which involve them in the formulation of solutionsand the action necessary to achieve them.76
Solution-focused brief therapy has been used in diverse contextsthroughout the world over several decades, including educational,business and therapy settings.77 It has been described as “one of themost popular and widely used psychotherapy approaches in theworld”.78 It has significant similarities to motivational interviewing –
an approach that has influenced thinking in therapeutic jurisprudencerelating to judging and legal practice – particularly in its promotion ofself-efficacy, the way it deals with resistance, honours ambivalenceand draws out client talk directed towards change.79 It can also beused in conjunction with motivational interviewing techniques.
74 Bernard M. Bass and Ronald E. Riggio, Transformational Leadership 7 (2006).75 Kevin B. Lowe, K. Galen Kroeck, and Nagaraj Sivasubramaniam, EffectivenessCorrelates of Transformational and Transactional Leadership: A Meta-Analytic Review ofthe MLQ Literature, (1996) 7 Leadership Quart. 385 (1996); Uldarico R. Dumdum, KevinB. Lowe and Bruce J. Avolio, A Meta-Analysis of Transformational and TransactionalLeadership Correlates of Effectiveness and Satisfaction: An Update and Extension, inTransformational and Charismatic Leadership: The Road Ahead (Bruce J. Avolio andFrances J. Yammarino eds., 2002); Bass and Riggio, supra note 74, at 19–56.76 In these respects, it is also similar to emerging approaches to counsellingadvocated by positive psychology. As to positive psychology counselling, see, e.g., ElsieJ. Smith, The Strength-Based Counselling Model 34 Couns. Psychol. 13 (2006).77 Steve de Shazer, Keys to Solution in Brief Therapy (1985); Steve de Shazer, Insoo K.Berg, Eve Lipchik, Elam Nunnally, Alex Molnar, Wallace Gingerich and Michele Weiner-Davis, Brief Therapy: Focused Solution Development, (1986) 25 Fam. Process 207; Steve deShazer, Clues: Investigating Solutions in Brief Therapy (1988); Steve de Shazer, YvonneDolan, Harry Korman, Terry S. Trepper, Eric E. McCollum and Insoo K. Berg, More ThanMiracles: The State of the Art of Solution-Focused Brief Therapy (2007).78 Terry S. Trepper, Yvonne Dolan, Eric E. McCollum and Thorana Nelson, Steve deShazer and the Future of Solution-Focused Therapy, (2006) 32 Journal of Marital andFamily Therapy 133, 134.79 Brian L. Burke, Georgy Vassilev, Alexander Kantchelov and Allen Zweben,Motivational Interviewing with Couples in William R. Miller and Stephen Rollnick,Motivational Interviewing 351–352 (2d ed. 2002). As to applications of therapeuticjurisprudence to judging and legal practice, See respectively: Bruce J. Winick,Therapeutic Jurisprudence and Problem Solving Courts, 30 Ford Urban L.J. 1055 (2003)and Astrid Birgden, Dealing with the Resistant Criminal Client: A Psychologically-MindedStrategy for More Effective Legal Counseling, 38 Crim Law Bull 225 (2002).
This type of therapy resists the tendency to characterize people,their thinking, emotional framework and abilities according to broadcategorizations based on incidents of dysfunctional behavior — suchas “criminals” or “wife-bashers”. Maruna and Mann (2006) note suchan approach, influential in corrections thinking and practice, that seescriminals as a category of people who think differently from otherpeople.80 From the perspective of solution-focused brief therapy thisapproach ignores the fact that instances of problematic behavior intheir lives is usually far outweighed by instances where the behavioris socially acceptable and competent.81 Solution-focused brief therapyacknowledges that people who commit offences have weaknessesthat have caused their problematic behavior but it also sees them ashaving strengths, resources and the ability to solve problems. It seeksto look at the whole person.
Solution-focused brief therapy spends little or no time on thecauses of a client's problem, their pathology or on analysingdysfunctional interactions.82 It sees dwelling on a person's deficien-cies as having the potential to promote the person's resistance.83 Thisform of therapy is “built on the assumption that the client constructshis or her own solution based on his or her own resources andsuccesses. This is in sharp contrast with the more familiar therapeuticidea that there is something wrong with the client that the therapistneeds to treat and cure”.84
Instead it elicits from the client the goal she or he wishes toachieve through therapy, identifies instances where the client has atleast partly achieved the desired goal and assists the client to build onthese successes to develop strategies to achieve their goals. Evenwhere there is no example of a solution in a client's life, there willusually be situations that solution-focused brief therapy calls“exceptions” defined as times where the problem could have occurredbut did not, which can form the basis for a client to develop a solution.This therapy contrasts with those that focus on dysfunction and itsunderlying causes: “Usually problem talk is negative and past-historyfocused (to describe the origins of the problem), and often suggeststhe permanence of a problem. The language of solutions, however, isusually more positive, hopeful, and future-focused, and suggests thetransience of problems”.85 Past talk has the potential to perpetuate theproblem.86 Clients are encouraged to take small steps that caneventually result in large-scale changes in their lives.
Solution-focused brief therapy uses a scale to help the client tomeasure her or his level of progress – “On a scale of 0–10, where 0 iswhere you were when you first came to see me and 10 is havingachieved your goal, where are you today?” – and to bring to lightbehavior that will sustain progress already made or to progressfurther.87 The therapist supports progress by complimenting theclient on the progress made and encouraging the client to continue todo what has been working.
This form of therapy also looks to the nature of the relationshipbetween client and professional as influencing the client's level ofmotivation, rather than motivation simply being confined to process-es internal to the client. Thus, a professional can help promotemotivation by engaging with the client, being open to their insightsand wishes and, as far as possible, seeking to accommodate themrather than taking a paternalistic or coercive approach.88 A therapist
80 Maruna and Mann, supra note 19, at 161.81 Andrew Turnell and Steve Edwards, Signs of Safety: A Solution and Safety OrientedApproach to Child Protection 36–37 (1999).82 de Shazer, Clues, supra note 77, at 2.83 Turnell and Edwards, supra note 81, at 22.84 de Shazer, Clues, supra note 77, at 50.85 de Shazer, Dolan et al., supra note 77, at 3.86 Mo Yee Lee, John Sebold and Adriana Uken, Solution-Focused Treatment ofDomestic Violence Offenders: Accountability for Change 23 (2003).87 de Shazer, Dolan et al., supra note 77, at 75–76; Trepper et al., supra note 78, at134.88 Turnell and Edwards, supra note 81.
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applying solution-focused brief therapy does not confront, direct orimpose interpretations on a client but, uses questions to assist theclient in developing solutions.89 However, the therapist may makesuggestions for the client to consider in some situations. The therapistresists perceiving the client as a “difficult client” as that may color theway the therapist interacts with her or him and become a self-fulfilling prophecy.90
Solution-focused brief therapy has been used in conjunction withvictims and perpetrators of family violence.91 In the treatment ofperpetrators, the focus is not on perpetrators' deficiencies that havecaused the violent behavior, nor upon the problem itself – as is thecase in other forms of perpetrator treatment – but upon makingperpetrators responsible for finding and implementing solutions.Professionals working in this area see clients as individuals withparticular strengths, resources, solutions and problems rather than asmembers of a group with general (dysfunctional) psychological andsocial characteristics.92 They see a sole focus on risk as lacking a soundevidentiary basis, counter-productive and likely to promote clientresistance.
Milner and Singleton (2008) summarise the solution-focusedapproach to family violence perpetrators as follows: “helpingoffenders define a goal that is achievable, measurable and ethical(i.e. within pragmatic and safe limits); helping them find exceptionsto their violent behavior, and solution behaviors; and then amplify,support and reinforce these behaviors”.93 Therapy sessions are withperpetrators but in some programs, partners are able to attendsessions once the violence has stopped.94
Solution-focused brief therapy does not downplay the seriousnessof violent behavior nor its destructive effect upon victims' andperpetrators' lives and upon the community as a whole. But it doesnot confront perpetrators about their behavior or seek to attributeblame, seeing such an approach as counter-productive as requiringconsiderable effort, most likely producing resistance in the client andturning the relationship between therapist and client into anadversarial relationship.95
In someways the approach of solution-focused brief therapy couldbe considered incompatible with a feminist approach to familyviolence which sees family violence as a manifestation of societalinequalities and which confronts violent offenders in an attempt tohold them responsible for their violence.96 Nevertheless we see agreat deal of value in both approaches to inform judicial monitoring.An individual judge may combine those aspects of the feminist andsolution-focused approaches which they value the most.
Moreover, solution-focused brief therapy does not require a fulladmission of guilt before treatment can begin. Indeed, it says that aperpetrator may make an admission for reasons other than takingresponsibility or being motivated to reform — such as the desire toavoid a prison term.97 Further, there may be different reasons why aclient will not make a full admission or admit guilt concerning violentbehavior — such as wanting to maintain a relationship or avoidhumiliation.98 Indeed, Maruna and Mann (2006) suggest that
89 de Shazer, Dolan et al., supra note 77.90 de Shazer, Clues, supra note 77, 103.91 Lee, Sebold and Uken, Solution-Focused Treatment, 2 supra note 86; Mo Yee Lee,Adriana Uken and John Sebold, Accountability for Change: Solution-Focused Treatmentwith Domestic Violence Offenders, (2004) 85 Fam. Soc. 463; Mo Yee Lee, Adriana Ukenand John Sebold, Role of Self-Determined Goals in Predicting Recidivism in DomesticViolence Offenders, 17 Res. Soc Work Prac. 30 (2007); Judith Milner and ThelmaSingleton, Domestic Violence; Solution-Focused Practice with Men and Women who areViolent, 30 J. Fam. Ther. 29 (2008).92 Lee, Sebold and Uken, Solution-Focused Treatment, supra note 86; Milner andSingleton, supra note 91.93 Milner and Singelton, supra note 91, at 32.94 Id.95 Id.96 See, e.g., Dobash et al., supra note 53.97 Milner and Myers, supra note 18, at 136.98 Id.
avoidance of full acceptance of blame is a self-protective mechanismand a form of negotiated reality between perpetrator and victimcommonly used by people throughout society, to protect againststigmatic shame and to maintain a connection with society.99
However they point out that for non-offenders this mechanism isregarded as normal but for offenders it is considered in treatmentcircles and in the justice system as pathological.
Maruna and Mann (2006) question the therapeutic value ofconfronting offenders concerning perceived cognitive distortions orneutralisations, instead advocating therapy exploring and seeking toaddress thinking patterns that have contributed to offenders selectingdysfunctional behavior. In answer to the question as to how peoplecan change if they do not take responsibility for their behavior, theysuggest a future-focused approach that places the responsibility uponoffenders to find solutions for their problems.
Research into the effectiveness of solution-focused brief therapy isin its early stages, but some studies suggest that it may be moreeffective than no treatment and other forms of treatment.100 There is aneed for more extensive and well-designed research. Lee, Uken andSebold's (2004) study of its use by family violence perpetrators foundreduced recidivism, improved relational skills in intimate relation-ships and a high program completion rate.101 Despite study limita-tions – such as the lack of a control group – the results are promising.A follow-up study found that “goal specificity and goal agreement[between client and therapist] positively predicted confidence towork on goals, which negatively predicted recidivism.”102 Again, withstudy limitations, Milner and Singleton (2008) also reported apositive effect on recidivism in relation to the use of this therapywith perpetrators.103
4. Judicial monitoring strategies
This article proposes an approach to judicial monitoring informedby transformational leadership, feminism, therapeutic jurisprudenceand solution-focused brief therapy. Under this approach, transforma-tional judging strategies relating to perpetrators in a family violencecourt would include.104
4.1. Giving perpetrators choice
Maruna's study of why some offenders later desist from offendingwhile others do not found that those who desist, unlike the others,had a sense of control over their lives.105 According to Winick,coercion and paternalism promote resistance to change while choicepromotes motivation, confidence, satisfaction and “increased oppor-tunities to build skills necessary for successful living.”106 Where thecourt is considering whether an offender should be admitted to theprogram, the judicial officer should clearly explain to him thealternatives and allow him to choose which he prefers, after seekingthe advice of counsel or after having the benefit of an adjournment tothink about it.107 If the participant is not properly prepared for what isto take place, asking for an immediate choice after giving theexplanation is likely to promote an uninformed choice or no choice
99 Maruna and Mann, supra note 19.100 Trepper et al., supra note 78.101 Lee, Uken and Sebold, Accountability for Change, supra note 91.102 Lee, Uken and Sebold, Role of Self-Determined Goals, supra note 91.103 Milner and Singleton, supra note 91.104 Transformational judging strategies are discussed more fully in: Michael S. King,Solution-Focused Judging Bench Book (2009), http://www.aija.org.au/Solution%20Fo-cused%20BB/SFJ%20BB.pdf.105 Shadd Maruna, Making Good: How Ex-Convicts Reform and Rebuild their Lives(2001).106 Winick, On Autonomy, supra note 15 at 1766.107 Winick, Applying the Law Therapeutically, supra note 8.
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at all.108 It may be argued that if the alternative is immediateimprisonment, that is not much of a choice. However, the defendantby his actions has caused the situation where he finds himself in thecoercive environment of the court system. The ability to offer choice insuch circumstances must inevitably be limited, but it is argued that itis an important choice nevertheless.109
The judicial officer could also ask the participant to provide input asto what conditions of bail the court should impose to help him stay ontrack and protect the victim. If the court, the victim or prosecutorconsiders additional conditionsareneeded– suchas standard conditionsimposed on all participants – then the judicial officer could inform theparticipant about those conditions and ask whether he considers themappropriate. If hedoes, then the judicial officerwould then formulate theorder and explain it to the participant. If he does not, the judicial officerwould rule on the matter and give reasons for decision.
4.2. Engagement with the victim
Active engagement with the victim is an important aspect of atransformational judicial strategy in a family violence court. In adoptingthis strategy, it is important that the judicial officer acknowledges thefull extent of the violence and that the judge in court does not diminishits impact upon the victim. Prior to admitting the offender to theprogram, the program should be explained to the victim and she shouldbe given an opportunity to speak about her views on the offender'sparticipation. She may wish to explain how she thinks the offendershould be made accountable for his past violence against her. Offenderaccountability must be meaningful to the victim and the court mustconsider when hearing the victim how this can be made so.
As a key aim of the model is to ensure victim safety, she should betold that although the focus of the program is stopping the offender'sviolence against her, the program alone cannot guarantee her safety.Therefore she should be told to maintain her existing safety plan andother precautions.110
4.3. Goals and strategies exercise
With the help of a community corrections officer or similarprofessional, a programparticipant could explore the range of treatmentoptionsavailable thataddress specific treatment goals thathesets andbeinvolved in decision-making concerning the programs in which he willparticipate. It is important that goals are realistic according to thesituation of the participant. Small steps may be needed in particularcases.111 However, the participant may also wish to set long-term goals,goals that can only be achieved after he has completed the program —
such as obtaining a degree. From the perspective of good lives theory,goals are components of what a “good life”means for the participant.112
While the participant should set his own goals, the judicial officerand court team may make constructive suggestions if there appears tobe something amiss. This strategy helps the participant to tap intointernal sources of motivation instead of external sources – such as anorder of a court – to which the participant may have little or no internalcommitment. According to Locke and Latham, goals affect performancein that they direct the individual towards action relevant to the goal,they are energising, affect persistence and “affect action indirectly byleading to the arousal, discovery, and/or use of task-relevant knowledgeand strategies.”113
108 See thecommentof a judgequoted inGover, BrankandMacDonald, supranote36, at 617.109 Winick, Applying the Law Therapeutically, supra note 8.110 This precaution is an element of the Lothian Domestic Violence Probation Projectin Edinburgh created in 1989. This is a dedicated criminal justice behavioral changeeducation program for men. See Dobash et al., supra note 53, at 296–7.111 King, Problem-Solving Court Judging, supra note 48.112 Ward and Gannon, supra note 51.113 Edwin A. Locke and Gary P. Latham, Building a Practically Useful Theory of GoalSetting and Task Motivation: A 35-Year Odyssey, 57 Am. Psychol. 705 (2002).
This strategy promotes self-determination; facilitates the participantbecoming aware of and drawing from their personal goals and dreams,things that motivate them to act; provides to the court a means ofconnecting personally with the participant and of supporting andcelebrating the achievement of goals as they happen; gives theparticipant an achievable vision for the future; enables the court, byapproving the goals and strategies to demonstrate community approval;supports the self-efficacy and self-determination of the participant; andpromotes the participant's respect for and trust in the court.114
It is preferable that the participant formulate goals that involveachievement (approach goals) – such as “I will be loving and caring tomy family” or “I will treat my family with respect” – rather than thosethat involve avoidance (“I will not be violent to my family” or “I willnot hit my wife”). The former, unlike the latter, provides a positivedirection to behavior and a basis for measuring progress and a sourceof personal satisfaction. Moreover, research suggests that avoidancegoals (as distinct from approach goals) are associated with negativeemotional states such as depression, low job satisfaction, negativesocial outcomes, low perceptions of optimism, self-esteem, compe-tence and autonomy and perceptions of control.115 If a participantdoes set a goal of not being violent to his family, a judge could askparticipant how he will act towards them and, if his response isappropriate, ask the participant if the positive behaviors can be a goalin substitution for the goal as originally formulated. A judgingapproach that simply tells an offender not to be violent or to stayout of trouble is setting an avoidance goal for the offender.
4.4. Developing a good relationship with participants
Interpersonal skills in judicial interaction with participants andothers, such as listening and demonstrating that one is listening,sensitivity to emotions (personal and those of participants and others),expressing empathy where appropriate and speaking clearly and withlanguage, tone of voice and body language appropriate to the personand occasion are important tools in developing this relationship.
4.5. Treating participants with respect
Treating participantswith respect is an important part of developinga good relationship with participants, but deserves separate consider-ation: “a judicial officer who does his or her job well, who affirmsparticipants as competent human beingsworthy of respect, can create apositive impression on participants and generate respect and admira-tion for the judicial officer and respect for the court system”.116 On theother hand, as Turnell and Edwards comment: “Very few people willlisten to or allow themselves to be influenced by someone who seemsunresponsive to them and is simply forcing them to conform.”117
Petrucci's study and procedural justice research discussed previouslyprovide justification for this strategy. Petrucci found that a US domesticviolence court judge promoted respect through respectful interactionwith participants.118 This is consistent with procedural justice researchthat has found that people coming to court seek affirmation of theirstatus as worthwhile citizens and respect court outcomes if theprocesses are perceived as fair.119
114 King, Problem-Solving Court Judging, supra note 48.115 Andrew J. Elliot and Ron Freidman, Approach-Avoidance: A Central Characteristic ofPersonal Goals in Personal Project Pursuit: Goals, Action, and Human Flourishing 97(Brian R. Little, Katariina Salmela-Aro and Susan D. Phillips eds., 2007).116 King, Problem-Solving Court Judging, supra note 48, at 162.117 Turnell and Edwards, supra note 81, at 33.118 Petrucci, supra note 30.119 Lind and Tyler, supra note 34; Tyler, The Psychological Consequences, supra note34; Tyler, Why People Obey the Law, supra note 34.
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4.6. Acknowledging the whole person
Acknowledging the whole person means the court not onlyacknowledges the seriousness of the offence or offences committedby the perpetrator but also his strengths and resources and the timeswhen he has not been violent. It could be argued that this is an aspectof the previous two strategies or of the following strategy but it issufficiently important to be listed separately. By taking this approachthe court effectively condemns the behavior but not the person. It alsodemonstrates to the perpetrator that the court is interested in him as aperson, that it sees the good in him as well as the bad things that hehas done and provides the basis for promoting the participant's trustin and respect for the judicial officer. It promotes the participant's self-concept and his faith in his capacity to change.120 It becomes thefoundation for promoting behavioral change.
4.7. Having positive expectations concerning a participant and his abilityto find solutions and achieve the goals and strategies
The first approach to judging in a family violence court describedpreviously and especially the second approach carry the danger ofconveying a negative reinforcement to the defendant: “You are anoffender and are likely to offend again unless we keep a close eye onyou”. This has the potential to negate the offender's self-efficacy – theirconfidence in their ability to overcome the problem of their violence –
and interferewith theprocess of behavioral change and rehabilitation. Itcarries the danger of becoming a self-fulfilling prophecy. On the otherhand, having positive expectations promotes participants' self-efficacyand has benefits in terms of rehabilitation in that it is associated withmotivation, cognitive function and affect and predicts treatmentoutcome.121 Transformational leadership proponents also emphasizethe value of positive expectation concerning people and theirperformance abilities. Indeed, research in business and educationalsettings has found that it is associated with higher performance.122 In afamily violence context, this principle does not mean that the courtignores the safety of victims or any danger signs reflected in aparticipant's behavior or that it blindly accepts what a participant saysabout his behavior. The strategy needs to be applied realistically andpreventive or remedial action should be taken when appropriate.
4.8. Positive use of review hearings
There should be a means whereby a judicial officer can reviewprogress towards the attainment of goals as a positive reinforcementmechanism, rather than simply a means of keeping an eye onparticipants to ensure they have not failed. The judicial officer shouldpraise participants who have made progress – no matter how small –as it “nurtur[es] law-abiding identities, build[s] cognitive commit-ments to try harder, encouraging individuals who face adversity not togive up…and nurtur[es] belief in oneself.”123 Further, in adjourning acase the judicial officer could say that she or he looks forward toseeing how the participant is progressing towards achieving his goals,instead of saying that the matter is adjourned to see whether he iscomplying with the court order. Regular reviews are advisable so thatthe rapport between judicial officer and participant can be developedand the therapeutic effect of the relationship can take full effect.
120 David B. Wexler, Robes and Rehabilitation: How Judges Can Help Offenders “MakeGood”, 38 Court Review 18 (2001).121 Albert Bandura, Self-Efficacy, Harv. Mental Health Letter, September 1997, at 4;Miller and Rollnick, supra note 79, at 5–6 and 40–1.122 D. Brian McNatt, Ancient Pygmalion Joins Contemporary Management: A Meta-Analysis of the Result, 85 J. Appl. Psychol. 314 (2000); Nicole M. Kieran and Michael A.Gold, Pygmalion in Work Organisations: A Meta-Analysis, 21 J. Organ. Behav. 913 (2000).123 Makkai and Braithwaite quoted in Shadd Maruna and Thomas P. LeBel, WelcomeHome? Examining the “Reentry Court” Concept from a Strengths-based Perspective 4Western Criminology Review 91, 101 (2003).
4.9. Using the goals and strategies as a checklist to ascertain howparticipants are progressing
By using the goals and strategies as a checklist to ascertain howparticipants are progressing, the judicial officer connects to sources ofmotivation within the individual instead of external sources such asthe court's coercive powers. As goals are attained, the judicial officercan praise the participant and reinforce his ability to achieve his goalsand overcome his problems.
4.10. Use of creative solution-focused methods in relation to problems
When a participant returns to court for a review hearing havinghad problems since his last review, he may well feel downcast abouthis performance and prospects. He may see himself as a failure. Use ofthe scaling technique – if 0 is where youwere when you came to courtfor these offences and 10 is having achieved your goal of beingviolence-free, where are you today? – can show to the participant thathe has made progress despite his problems and help address feelingsof being a failure.
Directly confronting a person in court and demanding that theytake responsibility for their behavior may damage the trust thejudicial officer has established with the participant and reinforce anyresistance to change. It may generate feelings of frustration andpowerlessness in the participant.124 It is suggested that the court doesnot ignore the behavior but does not focus on it. Attempts to counterperceived cognitive distortions in the court are likely to be counter-productive. While dealing with cognitive distortions is a part of some,but not all, therapies for perpetrators, if it is to be done best practicerequires that it be done sensitively.125 A public hearing room of acoercive, adversarial institution such as a court is not the propervenue. Confrontation and addressing cognitive distortions should bethe domain of treatment programs that can operate alongside judicialmonitoring.
The judicial officer should facilitate the participant exploring whatwentwrong, listen carefully towhat the person says, acknowledgewhatthe person has said, express empathy without condoning the behavior,encourage him to formulate a strategy to prevent a recurrence, ask anyquestions arising from that strategy and seek clarification from theparticipant, allow any consequential amendment of the strategy andsupport the participant's self-efficacy in implementing it. The intent isnot to focus on the participant's perceived deficiencies but on facilitatinghim crafting a solution. However, sometimes a breach of programconditions will be so significant – such as serious offending – that aproblem-solving approach cannot be applied and immediate removalfrom the program and/or imprisonment is warranted.
4.11. Use of positive reinforcement on completion or program termination
The court can use the successful completion of the program as anopportunity to reinforce the progress that has been made. Dependingon the wishes of the victim and the participant, the court could hold asimple completion ceremony.
If a person is terminated from theprogram, the judicial officer shouldrefer not only to the reasons for termination but also provide somepositive reinforcement by referring to evidence of progress made by theparticipant including periods where he has treated his family withrespect and suggest that this shows promise for the participant toovercome his problems in the future. Following the approach of JudgeDavid Fletcher of the North Liverpool Community Justice Centre,126 the
124 Milner and Myers, supra note 18, at 145.125 Edward W. Gondolf, Theoretical and Research Support for the Duluth Model: A Replyto Dutton and Corvo 12 Aggress. Violent Beh. 644, 648 (2007).126 Judge Fletcher advised of this practice during a panel presentation at the ThirdInternational Conference on Therapeutic Jurisprudence, Perth, Australia, 7–9 June2006.
416 M. King, B. Batagol / International Journal of Law and Psychiatry 33 (2010) 406–416
judicial officer could write to the participant explaining the reasons fordecision and indicating that an officer of the court will contact him toensure that he is put in touch with appropriate rehabilitation andsupport services to continue the good work he has done. For theparticipant, termination will most likely be accompanied by feelings ofdepression, failure and negative self-concept in terms of reinforcing anyperception that he may have that he is a recidivist wife basher. Thesesteps from the judicial officer may help to ameliorate the effect of thesefeelings.
Thecourt should also encouragevictims' voice, validation andrespectthrough their participation at each stage of the process if that is theirwish. The strategies identified by Winick are important in thiscontext.127
This approach can be adapted for use in courts that use onlyminimalreviewhearings but its effect is likely to bemore limited given that therewill be less opportunity for a rapport to develop between the judicialofficer and the participant. It can also be used alongside a system ofrewards and sanctions, recognising that other justice systemvalues suchas victims' interests and safety and accountability may require it.
5. Conclusion
Judicial monitoring of perpetrators of family violence, whetherunder the rubric of accountability, deterrence or rehabilitation, seeksto promote behavioral change in the form of offenders committing nofurther acts of abuse. Motivation is a key factor in behavior and inbehavioral change. Therefore judicial monitoring should, as far aspossible, use practices that promote motivation for behavioral changeand avoid practices that may lower such motivation.
Some judicial officers are skeptical about the desirability of judicialmonitoring and whether it is appropriate for judicial officers to strayinto areas best left to treatment professionals.128 Some judgesquestion whether judicial officers have appropriate training andwhether monitoring may promote resentment. Yet judicial monitor-ing does not require a judge to become a treatment professional.Properly done, judicial monitoring does not violate the judicialfunction.129 Further, as noted in the therapeutic jurisprudenceliterature, whether a judicial officer accepts it or not, how he or sheacts in court can have therapeutic or anti-therapeutic effects relevantto justice system outcomes. It is preferable that judicial officers areaware of this impact, of what to do to avoid creating a negative effectand of the techniques, consistent with justice system values, thatjudicial officers can use to promote positive outcomes.
Research suggests that judicial officers can have a positive bearingupon problem-solving courts. However, it is suggested that somejudicial techniques used may be counter-productive, hinderingoffender motivation and retarding the effectiveness of mandatedcourt programs. Thus, judging techniques including those that conveythe impression that perpetrators are dangerous people that have to bewatched and coerced into compliance, that do not involve them indecision-making but instead order them into particular programs andthat confront them in open court about their cognitive distortionshave the potential to reinforce negative self-concept and resistance tochange and lower self-efficacy. It may be asked whether this form ofjudging hinders perpetrator treatment outcomes.
127 Winick, Applying the Law Therapeutically, supra note 8 and associated text.128 Joyce Plotnikoff and Richard Woolfson, Department for Constitutional Affairs,Review of the Effectiveness of Specialist Courts in Other Jurisdictions 42–3 (\2005),http://www.dca.gov.uk/research/2005/3_2005.htm.129 Michael S. King, Judging, Judicial Values and Judicial Conduct in Problem-SolvingCourts, Indigenous Sentencing Courts and Mainstream Courts 19 Journal of JudicialAdministration 133 (2010).
This article has also highlighted different therapeutic jurispru-dence and feminist based approaches to family violence courtpractice. The most common method is to confront perpetrator'scognitive distortions in an endeavour to promote cognitive restruc-turing and behavioral change away from violent behavior. Theinfluence of cognitive behavioral theory is apparent in this approach.The judging approach advocated in this article suggests that anoffender making a full and detailed admission to the particulars of anoffence, though an advantage, is not essential to rehabilitation andthat judicial time should not be spent trying to deal with perceivedcognitive distortions. Where the factual disputes are relevant to courtoutcomes, then the usual fact-finding processes of the court should beused. Where the offender has pleaded guilty or the court hasdetermined his guilt, the judicial emphasis should be in promotingoffenders taking responsibility for developing solutions and engagingin positive behavioral change and rehabilitation. Techniques topromote self-determination, motivation and engagement and theexercise of interpersonal and creative problem-solving skills are anessential part of this judicial approach. It may be that such anapproach will be taken with a sanction and rewards system operatingas a secondary compliance mechanism.
That therapeutic jurisprudence can generate different approachesto judging should be neither surprising nor a cause for concern. It isnot surprising in that therapeutic jurisprudence draws from thebehavioral sciences, a broad-ranging field with diverse theories,therapies and research findings. Where there are sound arguments tosupport the application of differing behavioral science approaches in aparticular context in the justice system, it is natural that differingtherapeutic jurisprudence techniques may emerge. After all, thenature of treatment programs offered by problem-solving courts maydiffer significantly from court to court. Ultimately the therapeuticapproach to be taken in the court system should be evidence-based,drawing on what has been shown to be the most theoretically sound,effective and consistent with justice system principles.
This article has referred to a number of treatment approaches forfamily violence perpetrators for the purpose of highlighting particularpsychological principles andwhatmay ormay not be useful in judgingin family violence courts. The discussion has not been intended tosuggest that one type of treatment be preferred over another or that acertain treatment program should or should not use specifictechniques. Which perpetrator programs are to be used is a decisionto bemade by particular court programs on a basis of an assessment ofwhat is available and the evidence relating to those approaches.
There is a need for more extensive evaluation of family violencecourts, determiningwhat judging approacheswork and the componentsof effective judging. Researchshould also explorewhether some formsofjudicial monitoring have a negative effect on treatment outcomes.
Further, it may be that with the emergence of new research, whatwas regarded as sound therapeutic jurisprudence based practice maybe discarded in favour of new, evidence-based techniques. In anyevent, differing judicial styles is already a feature of our court system,exemplified in the differing sentencing decisions between judicialofficers in comparable criminal cases and the variation betweenjudges as to how they interact with people in their courtrooms.
