National Judicial Education Program* Intimate Partner Sexual Abuse: Adjudicating this Hidden Dimension of Domestic Violence Cases An Introduction National Judicial Education Program* *A Project of Legal Momentum in cooperation with the National Association of Women Judges Suggested Commentary: This short presentation will alert you to an all but invisible aspect of domestic violence with critical implications for risk assessment. We will also provide you with resources to utilize on your own. This short module is based on Intimate Partner Sexual Abuse: Adjudicating this Hidden Dimension of Domestic Violence Cases, an extensive Web course/resource created by the National Judicial Education Program with funding from the State Justice Institute and the Department of Justice, Office on Violence Against Women. Registration is free and open to all at www.njep-ipsacourse.org. Provide the 3 Handouts and Resources CD to each participant and explain what they are: A flyer and module summary for the National Judicial Education Program’s Web course/resource, Intimate Partner Sexual Abuse: Adjudicating This Hidden Dimension of Domestic Violence Cases, www.njep-ipsacourse.org An article titled Risk Assessment and Intimate Partner Sexual Abuse: The Hidden Dimension of Domestic Violence by Lynn Hecht Schafran, Director of the National Judicial Education Program, from JUDICATURE magazine, January-February 2010 at 161. A Resources CD titled, Intimate Partner Sexual Abuse: Adjudicating this Hidden Dimension of Domestic Violence Cases, and the Annotated Table of Contents from that CD, so you can see now what resources are available to you on it. Each resource on the CD is there in full. You don’t have to link to the Internet to find any of this. The Resources CD has two parts: Part I. Intimate Partner Sexual Abuse and Part II. Background Resources on Sexual Assault

“If a partner is controlling, abusive, and violent in the kitchen, the living room, and in public, why would he stop the abuse at the bedroom door?” -Hon. Jeffrey Kremers, Chief Judge, First Judicial Administrative District, Milwaukee, WI Suggested Commentary: Part of the problem is that the justice system has stove-piped domestic violence and sexual assault, treating them as completely separate issues. The co-occurrence of sexual and physical violence in domestic violence cases has been virtually invisible. Another part of the problem has been the lack of a legal framework. Until recently there was a complete exemption for marital rape. Today, the complete exemption has been eliminated everywhere, but 26 states retain remnants of the marital rape exemption such as a limited reporting period and/or lesser sanctions for offenders. [Note to presenter: If your state is one of those 26, explain what the exemptions are in your jurisdiction.] There is also the prevalent myth that marital or intimate partner rape is not of great concern because it is less harmful than stranger or nonstranger rape. In fact it causes profound psychological harm because of the acute betrayal of trust and because these rapes are often repeated. 2

Graham Barnes Team Leader Training and Resources The Battered Women’s Justice Project Minneapolis, Minnesota “Until I had worked with men who batter for three to five years, I had no idea that the level of sexual assault within domestic violence relationships was so high. I had to hear these stories from the facilitators of the women’s partner group before I realized that most of the women partners are also being sexually assaulted.” Suggested Commentary: Studies with battered women have found that 40-70% of respondents are being subjected to sexual abuse as well as physical, emotional, and psychological abuse. For example, in a study of 148 abused women seeking orders of protection in Houston: 68% reported sexual abuse in addition to physical violence 20% had a rape-related pregnancy 15% attributed sexually-transmitted infections to the sexual abuse High levels of posttraumatic stress disorder It is important to know about the sexual abuse because it has critical implications for all types of risk assesments. 3

Risk Assessment Related to Intimate Partner Sexual Abuse Assessing likelihood of continued and escalating physical and sexual violence Assessing risk of lethality to victim and others Assessing risks to children when making custody and visitation decisions Suggested Commentary: Risk assessment has three elements [read slide]. These risks are discussed in your handout from JUDICATURE magazine, Risk Assessment and Intimate Partner Sexual Abuse: The Hidden Dimension of Domestic Violence. Most of the worst physical and sexual violence and most murders are perpetrated at or after separation. An impending separation or divorce often prompts renewed or first-time intimate partner sexual abuse. A victim’s statement quoted in Criminology Professor Walter DeKeseredy’s 2006 article, Separation/Divorce Sexual Assault: The Contribution of Male Support, illustrates the danger victims face when they try to leave: “[H]e would know it was getting close to the end of our relationship once again and he would [rape me]. And the whole time I would be crying, but I couldn't cry loud enough because if his parents heard us he swore he would take our children away. I know he did this when he thought I was getting ready to leave and he knew that I couldn't live without my children." — Tina, quoted in DeKeseredy, et al., Separation/Divorce Sexual Assault: The Contribution of Male Support , 1 FEMINIST CRIMINOLOGY 228 (2006) at 236

Risk Assessment Femicide: Will the abuser kill his victim? Child Murder: Will the abuser kill the couple’s children? Third Party Lethality: Will the abuser kill a third party? Suicide: Will the victim kill herself? Suicide: Will the abuser kill himself? Will the victim kill the abuser? Suggested Commentary: Assessing the risk of lethality is not only asking will the batterer kill the victim. There are 6 types of potential lethality [read slide]. Third party lethality means the batterer kills his victim’s parent, someone in her workplace, a bystander trying to help, or even the judge. Lethality risk to children is illustrated by a 2007 Maryland case. Baltimore pediatrician Dr. Amy Castillo’s husband was increasingly violent and mentally unstable. She was trying to get mental health help for him, divorce him and secure an Order of Protection against him. At the hearing, the defense attorney raised the fact that Castillo had sex with her estranged husband shortly before filing for a protective order. She tried to explain that she was too scared of her husband not to have sex with him, that she would have done anything to calm him in order to protect their three children. Unfortunately the judge did not understand, but perceived the sexual activity as indicating that Dr. Castillo did not fear her husband. The judge denied the order of protection and gave the father unsupervised visitation. The father drowned the three children in a hotel bathtub.

Risk Assessment “A physically-abused woman also subjected to forced sex is over seven times more likely than other abused women to be killed.” - Finding from Professor Jacquelyn Campbell, Assessing Risk Factors for Intimate Partner Homicides, Vol. 250 NIJ JOURNAL 15 (2003). Suggested Commentary: Jacquelyn Campbell is a professor at Johns Hopkins University and a nationally known expert on domestic violence fatalities and risk assessment. In an 11-city study of actual and attempted domestic violence femicides she found that 57% of the victims were also subjected to intimate partner sexual abuse. Campbell found that the forced sex was more predictive of lethality than escalating physical violence and partner's drug abuse. Remember that force does not have to mean a gun to the head in the moment. It is often part of a pattern of coercive control. You beat someone up badly enough at the start of a relationship and she knows the risk if she does not constantly comply.

Risk Assement “There was no greater divergence in what victims and perpetrators reported than in the area of sexual violence. If we are to believe the killers, none of them had ever been sexually violent or even coercive to the women they killed….The victims of abuse painted a very different picture. Nearly three-fourths of the women [who survived a near-murder] said their abusive partners had raped them.” - David Adams, WHY DO THEY KILL? (2007) at 171-172. Suggested Commentary: David Adams is a psychologist and one of the first researchers in the field who tried to reform batterers. Adams conducted a study of 31 incarcerated wife murderers and 39 women who survived attempted homicide or life-threatening intimate partner assault. All of the men in this study denied ever being sexually violent or coercive, but three-fourths of the women said their abusive, murderous partners raped them (David Adams, WHY DO THEY KILL? (2007) at 171-172). Note to Presenter – Suggested Adaptation: Discuss lethal cases from your jurisdiction.

Risk Assessment: Custody and Visitation Implications "[A] history of sexual assaults against the mother…[is] linked to increased risk of sexual abuse of the children and increased physical danger.” Lundy Bancroft, Jay G. Silverman, THE BATTERER AS PARENT: ADDRESSING THE IMPACT OF DOMESTIC VIOLENCE ON FAMILY DYNAMICS (2002) Suggested Commentary: In a custody case where there has been domestic violence, knowing whether the father sexually assaulted the mother is critical in deciding custody and whether there should be visitation, supervised visitation or no visitation. According to Lundy Bancroft and Jay Silverman, two of the leading researchers on the impact of domestic violence on children [read slide]. Kathryn Ford, also an expert on the risk a parent’s intimate partner violence poses to children, writes, "[T]he sexual abuse of a parent has been seriously neglected – despite its potentially severe traumatic impact on children and association with greater risk to the safety and well-being of children and adult victims." -Kathryn Ford, Children’s Exposure to Intimate Partner Sexual Assault, 3 SEXUAL ASSAULT REPORT 15 (2007). This article is on your Resources CD. 8

It is important to be knowledgeable about intimate partner sexual abuse in order to understand it as: An aspect of domestic violence An assertion of power and control A critical risk factor for victims and their children A risk factor in custody and visitation determinations 9

Eliciting information about intimate partner sexual abuse is not easy, but it is essential for comprehensive risk assessment. To help encourage disclosure, judges can: Encourage those under the judge’s direction to develop this information Use behaviorally-based questions Create a court environment where victims feel safe disclosing Suggested Commentary: While intake and assessment are not the job of a judge, judges can have a tremendous impact on law enforcement, victim advocates, prosecutors, probation and parole, and treatment providers by informing them of the court’s need to have information about any intimate partner sexual abuse perpetrated in the domestic violence context. Intake and/or assessment in either domestic violence or sexual assault cases should include specific behaviorally-based questions about co-perpetrated domestic violence and sexual assault, rather than asking for a legal conclusion: QUESTION: “Has your partner ever made you do something sexually that you did not want to do?” NOT: “Has your partner ever raped you?” There are situations in which the judge should consider asking this type of question him or herself. For example, in a civil/family proceeding where the victim testifies that her husband threw her on their bed and choked her, the judge asking “what happened next” may elicit testimony about a sexual assault. The fact that the physical assault was perpetrated in a bedroom and on a bed should raise red flags in the judge’s mind. In a hearing, the victim testified that her husband left the house after he physically abused her and when he returned he ordered her to “take her place” in their bed. This example of coercive control and presumptive ownership of the woman’s body should prompt behaviorally-based questions about sexual coercion. Keep the number of people in the courtroom during a hearing to a minimum. Victims are far more likely to make a complete disclosure than in a “cattle call” setting. 10

Resources CD Part I. Resources Specific to Marital Rape and Intimate Partner Sexual Abuse Part II. Resources Respecting Adult Victim Stranger and Nonstranger Sexual Assault Suggested Commentary Part I. Resources Specific to Marital Rape and Intimate Partner Sexual Abuse The first item in Part I of the Resources CD is the flyer for the Intimate Partner Sexual Abuse Web course, which you have as a handout. The next seven items are the complete text of articles about many aspects of intimate partner sexual abuse and a link to Dr. Jacquelyn Campbell’s Danger Assessment instrument. The articles are hyperlinked to the Table of Contents so you can access them immediately. Part II. Resources Respecting Adult Victim Stranger and Nonstranger Sexual Assault. These items are the full text of a wide variety of resources, ranging from a judge’s article about the way adherence to rape myths undermines fairness in adult victim sexual assault cases to jury questionnaires to an explanation of the risk assessment instruments used with sex offenders. This is not just a bibliography. Each item is provided in full. The articles are hyperlinked to the Table of Contents so you can access them immediately.

Intimate Partner Sexual Abuse Web Course by the National Judicial Education Program Intimate Partner Sexual Abuse: Adjudicating this Hidden Dimension of Domestic Violence Cases Registration is free and open to all at: www.njep-ipsacourse.org Provides current interdisciplinary research from law, medicine and the social sciences on intimate partner sexual abuse. Includes 13 modules on issues varying from victim impact to cultural defenses, self-tests, reflection questions, and civil and criminal case studies. Suggested Commentary: Remind participants about the Intimate Partner Sexual Abuse Web course. Hold up the flyer and describe the Web course’s wide ranging content. Encourage participants to utilize the Web course. 12

For More Information Contact National Judicial Education Program Legal Momentum 395 Hudson Street, 5th Floor New York, NY 10014 (212) 413-7518 njep@legalmomentum.org 13