Lundy Bancroft and Janet Johnston

At a recent training, Lundy Bancroft mentioned Janet Johnston which has caused a bit of a stir with a few members of our community.  Bancroft did not go into detail at the training but referenced his book The Batterer as Parent where he spends an entire chapter discussing Janet Johnston's research.  As I couldn't find our copy of the book, I found online a blog post by Bancroft that addresses this very thing.  About half way through the post in the section titled, "The Connection Between Battering and Child Abuse" Bancroft discusses the typologies identified by Johnston and the issues he sees with using these typologies to assess risk in child custody and placement cases.  The AFCC (Association of Family and Conciliation Courts) used Johnston's research on these typologies in developing their risk assessment.

Lundy Bancroft

Our organization had the pleasure of hosting a training led by Lundy Bancroft last month who has extensive experience in batterer's treatment and domestic violence and has published several excellent books.  We refer many of our clients to his book entitled Why Does He Do That?.  The Batterer as Parent is a great resource for professionals working with victims of domestic violence and their families.  Below are some key messages I took from the training led by Lundy Bancroft.

Overlap of abuse towards mother and child abuse

• 49% of batterers also physically abuse the children
• Batterers are 7 times more likely to physically abuse the children than a non-batterer
• Batterers are 6 times more likely to sexually abuse children than a non-batterer

 How the batterer appears in court or when meeting with professionals

• Will deny/minimize allegations of domestic violence
• Make allegations that the mother has mental health problems, abuses alcohol or drugs, or is an unfit parent
• Will commonly appear as the friendly parent
• Skillfully dishonest and manipulative which professionals may not recognize
• Will usually outperform victim in psychological tests – there is no psych test that will show someone is a batterer
• Will not seem capable of the kind of cruelty or abuse being accused of
• Very good under observation
• Will appear very calm when meeting with professionals like an officer immediately following an incident – batterers are very controlled in their behaviors even though at times they may appear out of control – an example – when he destroys things, he avoids destroying his own belongings

How the victim appears in court or when meeting with professionals

• May not appear to be a good parent as the batterer typical undermines and interferes with her parenting
• Often do not perform well on psychological tests which are usually only about 70% accurate in evaluating mental health and usually do not relate the results to the individual’s ability to parent
• Typically not good witnesses

 Impact of battering on children

• Batterer often causes divisions in the family affecting children’s relationships with their siblings and with their mother
• They learn by example the values and behaviors that lead to perpetration or victimization
• Separation increases the chances of children witnessing violence as it often occurs during exchanges
• Children are often used as weapons or tools to continue the abuse

 Other comments by Lundy Bancroft

• Domestic violence is not a relationship problem, it is a battering problem.
• Our legal system sends victims mixed messages – if they stay with an abusive partner they are failing to protect the children; if they leave, the abusive partner is granted extensive unsupervised placement with the children leaving the victim unable to protect her children
• Children heal through repairing their connection to the non-abusive parent and their siblings.  They also heal through increased safety and establishing loving, appropriate relationships with adults.
• The risk of a boy becoming a perpetrator is directly related to whether the boy grew up believing the violence was the non-abusive parent’s fault or whether the abusive parent had to take responsibility.
• Victims tend to give up financial orders (maintenance, child support, property division, etc.) in order to get custody and placement.  This often backfires as most financial orders cannot be modified at a later date but custody and placement can be modified.  With the lack of favorable financial orders, the victim doesn’t have the financial resources to fight it when the batterer keeps bringing them back to court to modify custody and placement.

No contact orders

I recently learned that no contact orders that are a condition of bond are not in effect when a defendant is in custody so I spent some time focusing on increasing my understanding of various no contact orders and what they can do to protect a victim.  Please note that I work in WI and so all of these no contact orders are specific to WI.  Other states will have varying laws which may or may not be the same as WI's laws.

No contact orders at the time of arrest
72 hour no contact order:  This is an order entered at the time of arrest of a perpetrator of domestic violence.  The victim has the right to waive or enforce this no contact order.  This order stays in effect for the 72 hours regardless of whether criminal charges are filed unless the victim waives it in writing.  2011 WI Act 267 recently changed the laws regarding violations of this no contact order to a criminal charge (from a citation).

No contact orders during a pending criminal case
No contact order as a condition of bond (WI statutes Chapter 969):  This is a criminal no contact order that a judge can order (usually at the request of the DA).  Bond must be posted (and the defendant no longer in custody) for this order to be in effect.  This order can prohibit contact with a victim and the victim's residence at the discretion of the judge and can last up to the length of the case.  A violation results in bail jumping.

No contact order per WI Statutes 940.47:  This is a criminal no contact order entered by the judge (usually at the request of the DA) which can prohibit intimidation of victims or witnesses, in person contact with victims or witnesses, and/or communication with victims or witnesses.  A violation can result in intimidation of victims charges.  This criminal no contact order if entered is in effect regardless of whether bond has been posted.


Condition of a Deferred Prosecution Agreement (DPA):  If a defendant agrees to accept a DPA, a no contact order can be a part of that agreement.  If the defendant follows the conditions of this agreement, his case is dismissed after a set amount of time.  If he violates the conditions (including violating the no contact provision) of his DPA, he can be immediately found guilty and sentenced in that case.

No contact orders upon sentencing
No contact order as condition of probation:  If a defendant is sentenced to probation, a no contact order can be entered as part of the conditions of his probation.  My understanding is that this no contact order can be entered by the judge at the time of sentencing or by the probation officer.  If he violates, he can be arrested and his probation can be revoked.  Additionally it is my understanding that new laws allow the DA's office to enter criminal charges upon violation of this order as well.

Civil no contact orders
Civil temporary restraining orders and injunctions (WI Statutes Chapter 813):  This no contact order is separate from any criminal case and requires the victim to file a petition requesting a temporary restraining order that can last up to two weeks and then appear at a hearing to petition the court for an injunction that can last up to four years (depending on the type of petition filed).  The petitioner can specify exceptions to this no contact order to allow certain types of contact (which is often important in cases where the parties have minor children and need to be able to communicate in some safe way).  This type of no contact order is available to victims regardless of police contact or criminal charges.  A violation of this type of no contact order can result in immediate arrest and criminal charges.

It is important to remember that no contact orders can be an important part of a safety plan but cannot be the entire safety plan.  As we saw in the recent shooting in Brookfield, the perpetrator didn't care that there was an injunction in place.  That is not to say that all perpetrators will ignore no contact orders.  They work for many victims/survivors so it is important to listen to the victim/survivor carefully for what s/he thinks will keep him/her safe.  S/he is the one who knows the perpetrator the best.

Additionally, it may make sense for an individual to seek various no contact orders at once since they all provide slightly different protection.  Many of my clients chose to file for a civil restraining order even while there is a criminal no contact order as a condition of bond in place because criminal no contact orders are not long term orders and can disappear with little warning if the defendant pleads guilty.  So for those working victims/survivors it is important to understand the pros and cons of each type of no contact order so that victim/survivor can make an informed choice about what is going to keep him/her safe.

Please note that I am not an attorney and this post does not contain legal advice.  In this post, I am explaining my understanding of the no contact orders available to individuals in WI.  If any of the information above is not accurate, please comment on this post as my goal is to provide the most accurate information possible.

Criminal Defense Attorneys as GALs

I have noticed a trend of criminal defense attorneys accepting roles as GALs (guardian ad litems).  From what I have seen they are good about not accepting assignments when there is a clear conflict of interest.  But I don't see how it is possible to let the mindset you gain when working with criminal defendants not color your decisions as a GAL in family court, especially considering that GALs are most often appointed on cases where there is domestic violence and so the children are at a minimum secondary victims.  How can someone switch back and forth between two vastly different sides without letting the work they do on the other side color their work?

Civil Gideon

Legal Action of Wisconsin has put together a motion packet for pro se individuals to use to request that the court appoint an attorney to represent them in a civil case.  A court appointed attorney is not a right in civil cases (like it is in criminal cases) but pro se individuals have the right to ask for one.

Low income individuals have very little luck finding legal representation and without representation, they have difficulty navigating the court system, the court system becomes more bogged up as judges need to waste time educating pro se individuals, and the results are often not favorable.  

The need for legal representation is even greater for victims of domestic violence because of the imbalance of power in the relationship, their lack of financial resources because of financial abuse, perpetrator's use of the court system to further control their victim, and the trauma the victim has experienced which often effects how she presents herself.  Add to all of that the costs associated with going through the court system (GAL fees, study fees, mediation fees, etc.) and the push in many counties to give parties 50/50 placement and joint custody even with the presence of domestic violence.  

Can we make the court system any more difficult for victims?  When will courts recognize the effects on children of domestic violence and make that a priority over parental rights?  When will courts recognize that most contested custody battles involve domestic violence and because of the perpetrator's focus on controlling the victim instead of the best interests of the children, GAL and studies are necessary?  When will courts recognize that the costs for such should be paid by the party causing the need for those things?  When will courts make a priority protecting children?

It's so frustrating to see courts ignore some very important tools for victims of domestic violence that are written right into the state statutes.  And it is so frustrating to watch clients go further and further in debt when all they want to do is protect their children.

So getting back to the topic of legal representation for indigent individuals in civil cases, I hope that courts see this as an opportunity to make the court process more fair and provide better access to our court system for indigent individuals but I fear that county budgets will instead be the focus at the expense of indigent individuals and at the expense of victims of domestic and sexual violence and their children.

Restraining orders/orders of protection

I have been going through the Intimate Partner Sexual Abuse Course as I posted about a few days ago.  Module XIII talks a lot about crafting orders of protection that address anything that might pull the parties back together such as the victim needing child support to care for the children, or the defendant/respondent wanting to see the children.  WI's restraining order laws prohibit including any orders besides orders prohibiting contact or further acts of domestic violence which is contrary to Illinois which includes placement and other family law orders in their restraining orders.

Before reading this module I was adamantly against restraining orders that included family law orders.  I worked with a woman once who was trying to get a restraining order here in WI after she had fled from IL and in the meantime, the father of her child filed for and obtained a temporary restraining order in IL gaining temporary placement of their child.  At the time I was frustrated with a system that would grant placement (even on a temporary basis) to a parent without even a hearing where both parents could provide evidence.

I also have lost much confidence in our court system when judges and commissioners make placement orders which give an abusive parent significant time and often make a schedule that maximizes the number of exchanges and thus the number of opportunities for the abusive parent to continue the abuse.  So I fear that in the context of a half hour restraining order hearing, a commissioner would not be able to gather enough evidence (especially when one or both parties are pro se) to make a good order about placement.

All that said, this Module makes some very good points about addressing all the things that pull parties back together.  With clear orders about how to exchange property, child support, and placement, the court is taking away respondents' excuses for initiating contact and can more easily hold the respondent accountable for violations.  So I don't know what to think.

Sexual Assaults

As sexual assault month and National Denim Day, it seems appropriate that today's post focus on sexual violence.  Today I received notice of a web course on sexual violence aimed at judges and the court system called Intimate Partner Sexual Abuse which I have started and found full of really good information.  (It is a free course available to anyone and if you don't have the time to go through it all, you can easily skip to the parts most interesting to you.)

In that web course there was a question that really got me thinking that I wanted to share:


When you are listening to a victim of intimate partner sexual abuse give her account on the stand, what questions do you ask yourself? Do you think to yourself, Why doesn't she just say 'no'? or Why doesn't she leave? Would you think to ask, Why doesn't he leave her alone?

Defensive wounds

Unless they are 2 years old, people don't just go out and bite people so it is always troubling when I hear cases where the police arrested someone for biting the other person or worse, charge them with a crime for biting someone. Bite marks and usually scratches are defensive wounds typically in reaction to being strangled or physically restrained. I really wish that when police heard the allegation that someone bit them, they would take the time to figure out why.

Court Fees

Everyone has equal access to the courts, that is, IF you have money.  I have often been troubled by the fact that many hesitate to use the legal system because they can't afford all the fees and costs associated with it.

For example, imagine a mother who has some concerns about the safety of her children while they have placement with their father.  Maybe the children are returning with bruises.  Maybe the children return starving and dirty.  Maybe the mother has recently learned that the father has been seen doing drugs while his children are there.  The mother may report these things to the police and/or child protective services.  But what if this isn't quite enough for child protective services to step in and do something?

In Washington County, before even being allowed to file a motion to modify placement, the mother would have to request mediation (which has a fee).  After mediation fails, she would be able to file a motion (which has fees) and before even having a hearing the court almost always appoints a guardian ad litem (which requires a $1000 deposit which the party initiating the action pays).  And depending on the case and the guardian ad litem, the parties would likely be ordered to pay additional money for the guardian ad litem.  Then often a home custody study is ordered (which has a substantial fee).

If a fee waiver is approved, the filing fee and part of the mediation fee can be waived.  Even the guardian ad litem deposit can be waived.  But regardless of ability to pay at the end of the case, the parties are typically ordered to pay back guardian ad litem fees and home custody study fees.

Now, imagine that the mother recently separated from an abusive partner who is also the father of her children. Her abusive partner likely did not allow her to work and did not give her access to the money.  She is likely struggling to keep a roof over her and her children's heads.  How would she pay back the court for these fees?

The power of a legal advocate

I may change my mind many more times but right now I'm not sure that law school is the right avenue.  There are times an attorney is necessary and there are times when what a victim needs most is support.  It's very difficult if not impossible to be both an attorney and a support to the victim.

Now if only we can convince the government to stop cutting funding as the need for our services only becomes greater....

Why does he do that?

I am in the middle of reading the book Why Does He Do That? by Lundy Bancroft. He does an incredible job of explaining the dynamics of domestic violence and attempting to explain why abusive men are abusive.

Chapter 10 is a great chapter title "Abusive Men as Parents." At one point he discusses the mixed messages that society sends mothers who are victims of domestic violence and he said something that really struck me. He talks about how when mothers choose to stay with their abusive partners, child protection officials threaten to take their children away and claim that they are failing to protect their children. But then when a mother leaves her abusive partner and goes to the court regarding custody and physical placement, the court tells her that she can't keep the children away from their father. Washington County goes even further and says that 50/50 placement is in the best interests of the child. So it is not OK to stay and let her children be exposed to the violence but once you leave, you have no choice but to allow your children be exposed to the violence. How does that make any sense?

I embark upon a new journey

My last day at Legal Action of Wisconsin was June 30, 2011 and it was a bitter sweet day. I will miss my colleagues greatly. The attorneys and paralegals that I worked with there showed a true dedication to their clients, something I greatly admire in each of them.

On that day as one door closed another opened which will lead me on a new adventure. Soon I will be the legal advocate at Friends of Abused Families in West Bend and the advocates and staff at Friends seem to have an equal dedication to their clients.

With every job change comes new challenges, new experiences, new colleagues, and a new chance to step out of one's comfort zone. I will no longer be the support behind the scenes as I was at Legal Action. I will now be one of the "faces of Friends" interacting with the community, supporting clients as they navigate the challenging legal system, and advocating for victims' needs and rights.

So as I enjoy this month off between jobs, I spend much time pondering where I have been and where I am going. And I anticipate many more sleepless nights as these thoughts occupy my brain.

State budget plan zeros out legal services

Click on the title of this post to read an article from the Milwaukee Journal Sentinel about the loss of state funding for legal services in Wisconsin.

Limited English Proficient

Click on the title of this post for a link to the letter written by Assistant Attorney General Thomas E. Perez of the U.S. Department of Justice. In this letter Attorney Perez outlines the federal requirements of courts when working with individuals who are limited English proficient.

Although, Milwaukee County does provide court certified interpreters for hearings, I have found that they still have a ways to go. Several Judges have a tendency to hold lengthy conversations off the record and do not provide interpreters for anything that is not on the record. Additionally, our attorneys have encountered gal's who include in their fees, their costs for using an interpreter.

And for some reason lately, court commissioners are asking individuals like me (who are not certified) to interpret when an injunction hearing is going to be adjourned for no service or when the opposing party does not show up even though he/she has been served. Their calendars are booked and they don't want to wait until the court interpreter shows up and there is often a very long wait for the interpreter who has to be in many places at once. But these individuals deserve a qualified, trained interpreter to ensure that they completely understand their case and have access to the courts.

Failings of the system

In working with victims of domestic violence over the last few months, my eyes have really been opened to things I never realized existed. But what has bothered me most is not the violence, but the way our system has failed so many individuals, allowing the violence to continue.

I am horrified at how just about every individual I speak with has lost confidence in the police and the job they do and has lost confidence in the criminal system to charge criminals. In cases where there is clear evidence and clearly a crime has been committed the DA's office will choose not to charge for reasons unknown to the rest of us. When individuals call 911, an officer does not always come out. At times when a clear domestic abuse has taken place that likely included violence, police will not even always remove one of the two from the property. And in times where a male is a victim, the police will often separate the victim from his children.

In one case a Spanish speaker said that the first time she called the police they told her that her address did not exist so they couldn't come out to help her. And on the second occasion that she called, the police stated that no one spoke Spanish and again could not help her.

I also am dismayed when I sit through restraining order hearings and the Commissioner denies the restraining order just because the police were never called even if the abuser admits to something. Lack of police involvement is in no way an indication of lack of violence. Remember, as I stated in the previous paragraphs, many individuals have lost confidence in police who never did anything on previous occasions when they called and so feel like it is a waste of time to call the police. And in a system, where the woman is always portrayed as the victim, male victims know that it is a waste of time to contact police for help.

And all this was really driven home this weekend, as I saw on the news a story of an individual who had been murdered and the suspect is her ex-boyfriend. Upon looking at open records online, I saw that this victim had attempted to get a restraining order against him recently and was denied it even though there were pending charges for the abuser of domestic abuse against this same victim. Would a restraining order have saved this young girl's life? Maybe not. But maybe, the victim would have had a chance to contact the police the second the abuser showed up instead of having to wait for violence to occur at a point when it was too late.