Module 12
Orders of Protection, Pre-trial Release Determinations and Dispositions

Perception of the Risk

When a victim of intimate partner sexual abuse turns to the courts for help, she often faces increased risk because her abuser fears he is losing control over the victim. See Risk Assessment, Intimate Partner Sexual Abuse Presages Lethality.

The court must therefore seek to enhance the safety of the victim and her family throughout court proceedings, whether civil, criminal or family. This demand upon the court requires extra effort in cases that are already very difficult. Because the victim is at a high risk of lethality or reassault, a judge should use every tool available to address effectively and thoroughly the needs of the case. These include:

  • Orders of protection tailored to the exigencies of the family's situation
  • Warrants
  • Pretrial release conditions designed to keep the parties apart
  • Pretrial incarceration
  • Forensic domestic abuse and sex offender assessment of the defendant to assist in disposition
  • Alternatives to incarceration that adequately address intimate partner sexual abuse
  • Probation, including participation in intervention programs, to monitor the defendant's conduct in the community
  • Close judicial monitoring to ensure compliance with court orders
  • Incarceration with treatment that addresses intimate partner sexual abuse

The most critical source of information for a court weighing risk to the victim and her family is the victim's sense of her own danger. One of the most significant lethality factors is the victim's answer to the question, “Are you afraid?” Dr. Jacquelyn Campbell, who has researched domestic violence homicides extensively (See Risk Assessment: Femicide, Jacquelyn Campbell), calls such victim information “the gold standard” for risk assessment. Abused women’s own perception of the risk of reassault by an intimate partner has proven to be relatively accurate. See Campbell & Messing, Prediction of Homicide of and by Battered Women, 107, 122 (3d ed. 2017).

Whenever the victim appears, the court should inquire whether:

  • interventions such as orders of protection are working effectively
  • whether the victim has unmet needs (e.g., child support, exclusion of the defendant from the home, emergency housing, keeping the defendant away from the children's school)
  • court personnel have directed the victim to appropriate resources for support when necessary

While the court is not in a position to provide social services, it can ensure that access to advocates or support centers is readily available to victim-litigants in its jurisdiction, particularly if the litigant is pro se. Even where the litigant has counsel or a prosecutor is involved in the matter, the court sends a clear message that it is watching over family safety when it inquires fully into the family's status.

Most intimate partner sexual abuse cases come to the courts on the civil side as domestic violence matters. Given the documented failure of so many batterer intervention programs to address intimate partner sexual abuse, see Orders of Protection, Pre-trial Release Determinations and Dispostions: Batterer Intervention Programs, courts’ leadership is critical to securing changes in these programs' curricula so that intimate partner sexual abuse does not remain hidden, unchallenged, and untreated. When intimate partner sexual abuse is prosecuted on the criminal side, courts should impose sentences which reflect the gravity of intimate partner sexual abuse and the unique harm to the victims. Domestic abuse and sex offender programs for incarcerated offenders must also become expert at addressing intimate partner sexual abuse.



Nonperiodical Literature

Jacquelyn C. Campbell & Jill T. Messing, Prediction of Homicide of and by Battered Women, in Assessing Dangerousness: Domestic Violence Offenders and Child Abusers, 107,122 (Jacquelyn C. Campbell & Jill T. Messing eds., 3d ed. 2017).

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