Non-Adversarial Approaches to Domestic Violence: Interrogating How Theory and Practice Can Be Better Integrated

Judge Hayman,1 Rachael Field2

1 The Honourable Judge Eugene Hyman (Ret.), Superior Court of California, County of Santa Clara

2 Dr Rachael Field, Professor of Law, Bond Law Faculty, Bond University.

Increasingly a paradigm shift from a punitive, retributive model to one of rehabilitation and healing is evidenced by the introduction of specialized domestic violence (DV) courts. These courts adopt a range of therapeutic justice principles in the use of non-adversarial approaches to DV matters. As an alternative to, and in combination with formal prosecution, the use of non-adversarial approaches to DV has the potential to deliver justice to victims and families in a comprehensive and healing manner, lay the foundation for a durable solution to changing violent behaviour, and reduce the prospect of recidivism in a possibly more efficient cost-effective manner. While the advantages are numerous, there are also caveats.

In this paper we evaluate the advantages and caveats through a critical lens against a rigorous set of criteria. We argue that it is important to ensure that practise developments are informed by well-established, evidence based theory.

This paper explores why it is vital to acknowledge the safety of victims as a priority, and achieve best practice in relation to risk and safety assessments, restraining orders, and victim services. Mechanisms that hold the offender accountable – such as monitoring compliance with orders, judicial or other supervision, and the presence of consequences for non-compliance – are also considered. We explain the need for the development of a comprehensive screening protocol that excludes egregious re-offenders but identifies offenders who are both willing and capable of reform. We argue for additional training for first responders such as police and community groups, as well as for judges and program facilitators. And we explore the need for the accessibility of information given that DV cases often present in many courts such as civil, family, criminal and probate courts. In the development of more appropriate approaches to DV, practises that allow processes and protocols to be perceived as procedurally fair to all parties are necessary.

Biography:

Judge Eugene M Hyman is retired from the Superior Court of California, County of Santa Clara (San Jose) where, for 20 years, he presided over cases in the criminal, civil, probate, family, and delinquency divisions of the court. He has presided over an adult domestic violence court and in 1999 presided over the first juvenile domestic violence and family violence court in the United States. Judge Hyman has published articles on issues surrounding domestic violence in the criminal and family courts–especially with co-occurring issues of substance abuse and mental health. He has a special interest in domestic violence as it affects children in the home and in the family court setting. He has special understanding of sexual abuse, stalking, and strangulation, as they intersect with domestic violence. Judge Hyman taught as a Lecturer in Law at the Santa Clara University School of Law for 21 years including a course “Domestic Violence Law Seminar”. In 2008, Judge Hyman was honored with the United Nations Public Service Award.

Rachael joined Bond Law School as a Professor in 2016. Her areas of research expertise include dispute resolution, family law and domestic violence and legal education. Rachael has received a number of national teaching awards including a national citation in 2008, a national teaching fellowship in 2010 (through which she developed curriculum practices for the promotion of law student well-being) and a national teaching excellence award in 2014.  Rachael is the founder of the Australian Wellness Network for Law, which is now expanding internationally.  She is also co-founder of the Australian Dispute Resolution Research Network. She has a portfolio of more than 70 scholarly publications, and is co-author of four books. Rachael’s community service has been focussed on volunteering on the management committee of Women’s Legal Service, Brisbane since 1993. She has been president of the Service since 2004. In 2013 Rachael was named Queensland Woman Lawyer of the Year

About the Association

The Australasian Institute of Judicial Administration (AIJA) is a research and educational institute associated with Monash University. It is funded by the Law, Crime and Community Safety Council (LCCSC) and also from subscription income from its membership.

The principal objectives of the Institute include research into judicial administration and the development and conduct of educational programmes for judicial officers, court administrators and members of the legal profession in relation to court administration and judicial systems.

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