Group #5 Evidentiary Standards and Domestic Violence
• Countering Reliance on Criminal Convictions in Family Court and Domestic Violence Proceedings
Jane Stoever, University of California Irvine School of Law
Consider what is visible, perceptible, and invisible.
A record of arrests and prosecutions is visible to a judge. The amount of time since criminal-legal-system involvement is perceptible. Everything else is invisible unless made known. The person’s care for their children or parents, their role in a community, their sobriety, the music they make, what they cook and who they cook for, what they read, and the many traumas they have survived are invisible to a factfinder unless made explicit.
What happens when a legal system—which is rooted in racism; disproportionately arrests, charges, and sentences people of color; and increasingly criminalizes domestic violence survivors—reduces a person to a record of arrests and prosecutions and prioritizes that information in family court?
The Black Lives Matter movement and COVID-19’s disproportionate impact on communities of color have heightened the need to expose racial injustice in areas that scholars often overlook. My article critically examines judicial reliance on convictions in family law and domestic violence proceedings, such as when seeking child custody or adoption or protection from abuse. Given the stark racial disparities that pervade the criminal legal system, the convergence of heuristics and bias profoundly impacts litigants’ relationships, families, and communities.
My article also addresses challenges related to judges’ implicit bias and structural hurdles, with criminal and family courts having high-volume dockets that affect adjudication. I conclude by offering formal and informal advocacy strategies for overcoming, reforming, and in some cases removing the role of criminal convictions in family law proceedings.
• The Corroboration Trap: Race & Gender Inequity in New York's Sentencing Reform for Domestic Violence Survivors
Elizabeth Isaacs, Brooklyn Law School
New York’s sentencing reform statute, the Domestic Violence Survivors Justice Act (DVSJA), enacted in 2019, is an exciting piece of progressive legislation with tremendous potential for the decarceration of people with histories of abuse. Yet, as of February 2022, only 22 people have been resentenced. While the law in many ways embodies feminist progress, it also includes some disturbingly retrogressive provisions, including the requirement that, in order to be granted a hearing, applicants must provide at the initial pleading stage at least two pieces of evidence corroborating their claims of abuse, one of which must fall within a list of official records.
This article will explore how the DVSJA’s corroboration requirement perpetuates misogynistic and racist tropes characterizing women and people of color as incredible and unreliable witnesses, and how it closes the courthouse doors to the groups with the least access to or support from record-keeping institutions. The article will ask: Who is excluded? How does this threshold evidentiary burden differ from other areas of criminal law, and New York’s post-conviction criminal procedure laws in particular? How might survivors experience the demand for corroboration as retraumatizing? And what do the problems with this approach to sentencing reform portend for future second-look statutes?
Finally, the article will propose a legislative amendment eliminating the corroboration requirement, bringing the DVSJA in line with pleading standards in other forms of post-conviction relief. This fix would better serve the statute’s stated purpose of helping survivors of domestic violence by allowing their cases to advance to the fact-finding stage more easily, where new narratives can emerge.