Victim Safety in Hawaii
The Legal System
1. Civil Action: Restraining Orders
Women are often advised to obtain a protective order or a restraining order against their abusers. While these orders are effective in the majority of situations, experts say that we should not encourage women to automatically obtain restraining orders because in many cases, they are viewed as an affront by the abuser and triggers more violent behaviors. In the state of Hawaii, there are many domestic violence homicide victims with temporary restraining orders left behind in their personal effects. Before a woman is counseled to obtain a restraining order, there should be a lethality assessment to determine whether the order will increase her safety or put her in greater danger.
On Oahu, numerous domestic violence agencies require that a woman obtain a restraining order before they will provide her with any services. Although there is some flexibility regarding this policy, it is still believed that there should be no obstacles placed in the way of a woman who is seeking safety and help. A good percentage of restraining orders are effective and do provide a victim with protection from her abuser.
When a victim of domestic violence decides to obtain a restraining order against her abuser, it can be obtained through various means. District Court and Family Court issue orders. In FYI 1996-1997, 1590 such restraining orders were issued by Family Court. Restraining orders against other persons are issued by the District Court. The District Court issued 1038 restraining orders during FY 1996-1997. A judge can issue an order during a divorce proceeding or during child protective cases. Because there are so many kinds of protective orders, police do not always recognize them. Inconsistencies in how these various orders are issued and how they are written create problems for police who must interpret and enforce them.
When a victim is in a shelter, the shelter will usually provide her with an advocate to help her through the initial process. She might contact one of the legal advocacy services: the Domestic Violence Clearinghouse and Legal Hotline, Americorps Students and Advocates for Victims of Abuse, which works though Hawaii Lawyers Care, or the Legal Aid Society of Hawaii. All of these require that the victim help herself. One abuse survivor noted that when she could not get legal assistance from DVCLH, she never pursued a restraining order. Others simply show up in court where a court administrator assists with the process.
Women who do not live with their abusers must go to District Court for their restraining orders. Most of the women in District Court are teenagers who have been abused by their boyfriends. There are no free or low cost legal services available for a District Court hearing. The victim is left alone to fend for herself.
In seeking legal assistance, victims can find out about other services, but once again, they must take the initiative and help themselves. When a woman obtains a restraining order, she has taken an important step in fighting back. An advocate available at the court to talk with women, assess safety, and assist with immediate safety planning would go a long way toward helping victims become safer.
Under HRS 586, an abused spouse can ask the Family Court to issue a retraining order for a period of up to three years. Advocates are lobbying for an amendment that would allow for extended restraining orders. Restraining orders may have a number of provisions, including no-contact orders, temporary custody and visitation arrangements, and requirements that the abuser attend counseling or drug treatment programs. The abuser is also asked to turn over any weapons he may have in his possession. Anyone with a restraining order may not be issued a firearms permit.
Obtaining a restraining order requires two appearances in court To get a temporary restraining order (TRO) in Family Court, the victim must appear for the first hearing at 7:45 a.m. if she lives anywhere but close to the downtown area and has no car, it might be difficult to get to court on time.
At the first appearance, an ex-parte Temporary Restraining Order can be issued for up to 15 days. To get the initial TRO, the victim fills out an application and an affidavit describing the violence she has been subjected to. If the TRO is issued, the plaintiff must return in two weeks for a hearing at which her abuser may be present to defend himself. At this point, the judge may impose a restraining order for up to three years. On the neighbor islands, victim programs do processing of TRO paperwork for the courts before restraining orders are issued.
During a group interview with fifteen survivors of domestic abuse, six complained of their abusers taking out TROs against them. In these cases the abusers made claims of abuse against their victims and were granted TROs. Some were refused legal advocacy services because their abusers had already been assisted by the organization. This is a significant problem on Oahu and the Big island.
Advocacy groups that assist with TROs need to be able to distinguish between abusers and victims. This is a dangerous situation for women and children, especially when an abuser uses a TRO to deny a mother custody of her children.
There is no DVCLH or its equivalent on the neighbor islands, and with the exception of some assistance from Americorp volunteers and Legal Aid Society of Hawaii, there is no civil case advocacy available.
- Enforcement of Restraining Orders
Many restraining orders are never served because the perpetrators cannot be found. Poor enforcement of restraining orders endangers women and children. Maui is an exception with a 97% service rate. Although restraining orders require that abusers turn their weapons over to the court, this provision is rarely enforced. If the perpetrator claims he does not own a weapon, typically no further investigation is made. Violation of a restraining order is a criminal offense but there are no serious consequences for violators. In many of Oahu's domestic violence homicide cases, restraining orders were in effect. For example, in the case of Marcie Llacuna, the man who abused and murdered her (as well as her mother and himself) had seven TRO violations. Llacuna's father and brother are currently suing the state and the prosecutor's office for failing to keep Marcie safe. As one advocate put it, it seems that judges are "leaning over to protect his rights, not her life."
- Quincy, Massachusetts - One City's Solution
The Quincy, Massachusetts district court has created a model domestic violence program. The district population is 250,000 and covers 100 square miles. A special court office with an all-female staff takes care of women seeking restraining orders. Three full-time, specially trained clerks and volunteers assist victims in completing applications and writing affidavits. The staff escort victims to the courtrooms to ensure safety (it is not unusual for a victim to be intimidated by her abuser in the parking lot, hallways or courtroom itself). The restraining order office staff also provides support for victims when they testify before the judge. They offer early intervention services, including referrals to shelters, legal services, and counseling and education programs.
To make the process of obtaining a restraining order easier, the Quincy court schedules two special sessions every day just for this purpose. One is at 9:30 a.m. and the other at 1:3 p.m. During this time, only domestic abuse complaints are heard. Judges will also interrupt other sessions--even trials-to hear restraining order petitions which often only take a few minutes. Judges ask victims--and defendants why present--to come up to the bench for quiet conversations so that they don't have to broadcast intimate stories to everyone present in the courtroom.
In Quincy, Massachusetts, violation of a restraining order is punishable by up to 2 years in jail and a $5,000 fine. First offenders who violate a restraining order, but do not commit a violent act, might receive a year of intensely supervised probation. Subsequent violations result in stiffer sentences, including substantial jail time. Jail is used to encourage compliance and prevent further violence.
2. Other Legal Assistance
Restraining orders normally include custody and visitation arrangements for children. During the exchange of children, abusers have a chance to revictimize their partners. As a result, Hawaii and other states have established supervised visitation centers where parents can drop off children and pick them up without ever having contact with their abusers. According to advocates, this service is not currently easily accessible, and more effort needs to be made to ensure that battered women do not meet their abusers when making visitation arrangements.
There are insufficient resources for legal assistance for more complicated and time-consuming civil proceedings. Many victims of domestic violence cannot get assistance with divorce, child support, alimony, tenant issues, workplace issues, and child custody proceedings or with problems such as immigration. Immigration status is a major problem for women whose legal residency may be revoked if they leave their abusers.
The DVCLH does handle divorce and child custody and has 150 active divorce cases. Because funds are limited DVCLH must turn cases away; they can only take the most lethal cases. Legal Aid Society of Hawaii and Hawaii Lawyers Care also handle divorce and some child custody cases.
Another legal problem, which has not been adequately addressed, is the need for women in highly dangerous situations to change their identities and those of their children. Many abusers follow their victims from community to community and from state to state, finding them and stalking them. These cases often involve the greatest risk of lethality.
To hide their identities, a survivor should change her name, the names of her children, and all of their social security numbers. Several obstacles make it impossible for an abuse survivor to make these changes and to keep the information from her abuser. First, when a Hawaii resident changes her name, her new identity is published in the newspaper and with the Bureau of Conveyances. Second, the state requires permission of a child's mother and father to change the child's name. Third, to change her social security number, an abuse survivor needs an affidavit from the prosecutor's office, but many survivors are not involved in criminal cases through the Honolulu prosecutor's office. In those cases, there is no reason for the prosecutor's office to assist. Lastly, even if a woman is able to change her own social security number she cannot change those of her children. Women could benefit from legal assistance to change their identities.
3. Criminal Prosecution
The Oahu court monitoring study looked at the prosecution of misdemeanor domestic violence cases in Honolulu. The reader is referred to the report, Domestic Violence Family Court Monitoring Project (League of Women Voters of Honolulu, September 1996) for information.
- Domestic Violence Treatment Programs
Standard sentencing for perpetrators of domestic violence includes mandatory counseling in a domestic violence treatment program. The City and County of Honolulu has three such programs which are run by the Family Peace Center (FPC), Child and Family Service (CFS), and Catholic Charities. If a perpetrator is sentenced to counseling or is required by a restraining order to undergo counseling, he is sent to either the FPC or CFS program, both of which are supported by funds from the Judiciary. Catholic Charities runs a smaller, non-state-supported program. Approximately 1200 men attended treatment programs on Oahu in the past year. Of these, about 90 percent were courtordered.
Research on the effectiveness of these programs is inconclusive. The Program for Conflict Resolution at the University of Hawaii conducted an evaluation of judiciary-funded perpetrator programs in Hawaii during the spring of 1994. The research team interviewed program directors and staff; judges, prosecutors, public defenders, and police; service providers for battered women; and program participants and their partners. Unfortunately, the difficulty of contacting past participants in the programs limited the interview sample on Oahu to 25 men, most of whom were current participants, and 20 women. The evaluation concluded that the programs were reasonably effective (only 17 percent of the perpetrators' partners claimed no effect) but that effectiveness depended on a well-coordinated community response. On Oahu, the researchers found that inter-agency coordination was still poorly developed. They recommended increased sharing of information among police, courts, and social service agencies in order to track cases and evaluate programs on an ongoing basis.
Generally, survivors may feel safer while the perpetrators attend the programs because the physical violence often decreases.. There may be an increase in other forms of abusive behavior, however such as psychological abuse. Several studies that have tracked perpetrators for a period of at least oneyear following treatment have found that two out of three men who complete a program remain nonviolent during that time. The dropout rate for treatment programs, however, is quite high. Of the men who enroll in domestic violence treatment programs, only 20 percent actually complete the programs.
At the time of the statewide evaluation, all of the perpetrator programs were using the Duluth model curriculum, a psychological and educational program that focuses on issues of power and control in relationships. This continues to be the recommended curriculum for batterers programs throughout the country. In Duluth, Minnesota, where the model treatment program was developed, a five-year follow-up study showed that there was a 70 percent recidivism rate among men who had completed the program.
The Hawaii researchers recommended diversifying programs and not relying on a single model. Since that time, the Family Peace Center has created an integrated model that uses a health-oriented approach in conjunction with the discussion of power and control. FPC also runs groups for Filipino and Vietnamese men in their native languages.
At FPC, perpetrators attend a 2-hour class once a week for twenty-four weeks. The CFS program consists of one-hour classes twice a week for twelve weeks. This short program provides much less time to monitor the perpetrators behavior, which many advocates find problematic. Research studies, however, have not confirmed that longer programs are more effective. The Oahu Domestic Violence Task Force has proposed standards for perpetrator programs. Similar standards have been adopted in 24 other states and are currently being developed in at least a dozen more.
Most standards for perpetrator programs include the expectation that perpetrators will pay for services. The Oahu Task Force recommended payment on a sliding scale, but the issue remains controversial. In California, no public dollars are spent on perpetrator treatment programs; fees cover the full cost. Here in Hawaii, though perpetrators are expected to pay for treatment if they can afford it, only about 30 percent actually pay the $10 to $20 per session. Program staff state that there is no way to collect fees without some enforcement mechanism. Some Judiciary contracts do not allow agencies to charge perpetrators. Though some advocates strongly support fees as a means of making perpetrators responsible for their behavior, others feel that fees, like fines, take money away from the victims and, thus, punish them as well.
- Alternatives to Current Sentencing
Perpetrator counseling programs are insufficient response to domestic violence. One might ask why, if a stranger assaults you, is he likely to go to jail, while the same assault or worse in a domestic situation sends the abuser to treatment. Many feel that large sums of public money should not be spent on treatment for perpetrators while victims have few resources to draw on in trying to make a new life away from their abusers.
In some states, perpetrators of domestic violence attend treatment for a full year (rather than six months) and remain on probation for three years. Rather than longer treatment, some advocates have suggested tighter monitoring of perpetrators for a longer period of time by the probation system. This would require changing the current Hawaii statutes, which limit probation in a misdemeanor crime to one year. It would require much stricter enforcement of probation requirements, including jail time for violations, especially in cases where a victim's safety is compromised, It would also require the Judiciary and the Department of Public Safety to increase the number of parole and probation officers to handle these cases.
Prior to 1998, a probation officer an Oahu handled approximately 300 cases. Earlier this year, additional probation officers were added to handle domestic violence cases. This has reduced each officer's caseload.