President Donald Trump recently announced that he favors due process of law. In this instance, however, his concern was on behalf of powerful men who have faced public allegations of gender violence and sexual harassment.
Given the attention Trump has brought to “due process,” it would now be well consider what the term means and whether it applies equally to all sides where charges of domestic violence and sexual assault are at issue.
Domestic violence victims and advocates know full well the benefit of procedural justice. When administered in a fair and respectful manner, it provides a sense of legitimacy about the law, which in turn serves to encourage people to obey the law. Procedural justice requires all parties in a legal matter to be able to state their case, to be heard, and to be treated with the dignity we might expect to be an inherent characteristic of an unbiased judiciary. Indeed, studies show that when accused parties, including those charged with domestic violence-related offenses, experience the legal system as affording them procedural justice, they are more likely to comply with the court’s orders, irrespective of the outcome.
The failure of the president to extend his concern for due process beyond alleged perpetrators suggests that his endorsement of the principle is woefully inadequate. Studies of requests for protective orders show that domestic violence cases often fall short of adequate due process.
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The hearings, while scheduled on short notice to maximize protection for the victim, are truncated at best. In the rush to get through the court’s domestic violence docket, victims – disproportionately women – are often hurried through and precluded from presenting their evidence which often results in denial of orders.
With efficiency as a pretext, courts may categorically refuse to consider issues properly raised in civil protection order proceedings and central to the issuance of a meaningful protection order. Judges may dismiss custody issues outright, despite statutory provisions authorizing custody awards. Instead, they may require battered women to file separation, divorce, or custody actions although no such legal requirement exists. Courts are often unwilling to consider financial support issues although properly raised in civil protection order proceedings. Judges are often unwilling to hear testimony about the violence itself.
The North Carolina Domestic Violence Best Practices Guide for District Court Judges published by the N.C. Administrative Office of the Courts acknowledges that “some courts are reluctant to address custody or visitation arrangements in an expedited hearing for emergency protection pursuant to Chapter 50B.” The guide references an earlier study from the Governor’s Crime Commission that found that the greatest “discordance” and “disparity” exists between a victims’ request for custody-related matters and child support and judicial grants of relief as to those matters.
Judges often refuse to consider the full relief that victims require to stay safe, repeating a refrain that “granting custody in DVPO cases is something I don’t do.” Judicial demeanor often is a factor in whether a case is properly heard. Judges may display boredom, appear impatient, or otherwise indicate an eagerness to hurry through the proceedings with little “due process” accorded to either the victim or the perpetrator.
Of course, there are courts and judges that stretch the limits of their resources in an effort to guarantee due process to all parties to domestic violence proceeding. But our courts lack sufficient resources to address fully the problem of domestic violence. Beyond that, the historic belief that domestic violence matters have no legitimate place in the courts contributes to the legal system’s failure to fully address such cases.
The lack of resources and the aversion to domestic violence claims – often considered to be “private matters” and cases of “relationships gone bad” results in what may best be described as perfunctory justice – and without meaningful due process of law. Would that the president tweet about that.
Deborah M. Weissman is the Reef C. Ivey II Distinguished Professor of Law at the University of North Carolina School of Law. She teaches Gender Violence and the Law.