The Judge’s Dilemma—Management of Domestic Violence Claims in Family Court (corrected)

Domestic violence advocates are dissatisfied with Family Court management of custody cases, asserting that Family Court judges “marginalize or throw out” domestic violence claims. Others argue that false or one-sided claims of domestic violence are used to gain the upper hand in custody disputes. Domestic violence (DV) is a real and pervasive problem and the assertion is troubling.  From my point of view as a forensic behavioral scientist, I have put together the following comments of why courts may have difficulty with this issue. I often find this information is absent from the acrimonious debate on DV and child custody jurisprudence.

 First, it must be remembered that judges are human decision-makers who rely on law and evidence in individual cases. Evidence is inevitably based on how a phenomenon is defined. How is DV defined? The Hawaii statute (571-46) does not define domestic violence. In the absence of definitional criteria, judges have to rely on their own notions for what constitutes DV. Boundaries between DV and relationship conflict, for example, are not always well defined. In the absence of clear definitions about any phenomenon, raters (judges) will not be able to reach conclusions that are consistent, reliable, or accurate. One can inevitably expect a great of deal of inconsistency and error in judicial decision-making which adversely impacts either victims or the accused. This is the judge’s dilemma.

In any decision-making situation, there are four possible outcomes: (a) true positives (DV judged to have occurred, and it did occur), (b) true negatives (DV judged not to have occurred and it did not occur), (c) false positives (DV judged to have occurred and it did not occur) and (d) false negatives (DV judged not to have occurred and it did occur). True positives and negatives are accurate. False positives and negatives are error.  Error is not harmless. False negatives harm victims; false positives harm the wrongly accused. There is a reciprocal relation between false positive and false negative errors, based on the strictness of the definition of the phenomenon (called the selection ratio). Using lower evidentiary standards for concluding that DV has occurred will (a) increase the percent of cases in which DV is judged to have occurred, (b) increase the false positive rate, and (c) decrease the false negative rate. When the definition is stricter, in contrast, there will be (a) a decrease in the percent of cases in which DV is judged to have occurred, and (b) the false negative rate goes up (the victim’s claim is not recognized, with possibility of further harm).


                                                        +                              –

                                 +              true positive             false positive

                                                        truth                                error

What really


                                 –               false negative           true negative

                                                        error                         truth


Since the 1700’s, it has been a feature of Anglo-American legal tradition that views accusations, where an innocent individual is wrongly accused, as a greater harm than false negatives. There is some evidence that this attitude is changing. It is a matter of legal and public policy to balance these issues.

 Second, the definition of what constitutes DV is critical. Domestic violence advocates do their clients a disservice by using overly inclusive definitions of DV since this will cause the false positive rate to rise (with inevitable backlash from the accused). This is observable on the TRO calendar or in mandated reports of child abuse, where a low standard of proof is required—a public policy deliberately set to protect victims. Unfortunately, the inevitable impact of a very liberal selection ratio is a high false positive rate. Stricter definitions, on the other hand, will shrink the false positive rate but will miss some cases of DV that really happened (false negative errors). The challenge is to maximize accuracy and minimize error, recognizing that error is inevitable. Failure to do so does harm to the community and damages the court’s credibility.

 Thus, DV definitions and evidence are critical to understanding the task facing the judge.  In situations where the criteria for DV is strictly defined and there is corroborated evidence (police reports, medical reports, eye witness testimony, or confession), judge’s decisions are likely to be more accurate with lower rates of error. In situations of greater uncertainty, however, where reports are uncorroborated, inconsistent, or the definition is overly broad or vague, there is a greater likelihood for error. In the absence of corroborating facts, forensic psychologists, judges, law enforcement personnel, child protection workers, juries, and lay people are no more accurate than chance (50/50) in determining whether someone is telling the truth. In my experience, DV evidence is sometimes weak. There is often no independent evidence to either corroborate or refute a verbal report of domestic violence. It is not always the case that the TRO process is misused, but it does occur and both judges and the accused have become highly aware of it (thus legislative efforts to reform perceived misuse of the TRO process).

 The reason that judges are perceived to “marginalize” or “throw out” DV evidence in court is more likely due to the vagaries of human decision-making in situations of uncertainty where conflicting views of a reality are being argued. It is not necessarily the case that judges are lax, poorly trained, or biased. They face a true dilemma, often in a situation of uncertainty (we are talking about human decision-making in situations of uncertainty), where definitional criteria are undefined and evidence is uncorroborated.

 The role of forensic behavioral science in these matters is critical. Formulating clearly defined statutory definitions of DV will inevitably assist decision-makers. The role of behavioral science in developing criteria and evidence that maximizes accuracy and minimizes error is critical.  It is actually possible to develop and study DV statutory and evidentiary criteria to maximize accuracy and minimize error—the basic standard of fairness in the court process. Clearer criteria and an understanding of the role of criteria and judicial decision-making are likely to reduce the number of DV cases that are marginalized or thrown out of court.

 All parties interested in fairness and accuracy in judicial decision-making cannot avoid these issues. There is a balance between the safety and welfare of victims and the rights of the accused. Clear definitional criteria and emphasis on the quality of evidence will reduce error, enhance the credibility of the court, and reduce public dissatisfaction with the Family Court’s management on contentious issues—with victim or accused.


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