Jurisprudence

Why Are Judges Forcing Survivors of Domestic Violence Back into Court While Delta Spreads?

A federal modern courthouse building with a seal of an eagle spreading its wings.
People walk in front of the Brooklyn federal court in Brooklyn, New York on August 9, 2021. Kena Betancur/Getty Images

I’m an attorney for survivors of domestic violence in New York City where my clients are low-income survivors who qualify for free legal representation. Before the COVID-19 pandemic, I spent most of my days traveling to or waiting around in the city’s various courthouses. I would flash an attorney card to walk past lines that wrapped the block, crush into crowded elevators, and wince at bellowing court officers threatening to arrest rowdy litigants. My clients and I waited hours for a few minutes of the judge’s time. We never questioned it. Certainly, there was no reason to change.

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Then came COVID, and there went our courtrooms.

For the last 18 months, the hallowed halls of the nation’s courts have given way to pixelated squares on Zoom, Skype, and Teams. Despite the usual annoyances of video conferencing—feedback, freezing, dropped signals—it’s worked remarkably well for clients like mine. We’ve conducted trials, settled cases, and handled explosive family disputes this way. My clients, and others like them nationwide, have been relieved to plead their cases remotely, removed from both their abuser and the overwhelm of being inside an unfamiliar, public courtroom. Under normal circumstances for survivors of domestic violence, litigation is both triggering as to abuse they’ve already endured and a whole new trauma in and of itself. It is excruciating to be legally embattled with a person you once loved, who also mistreated you. And all too often abusers invoke the legal process just to maintain proximity, both psychic and physical, to survivor-litigants, who they also harass and gaslight in court. Custody battles drag on for years, and require litigants to return almost monthly—missing work, finding childcare, and waiting in line to go through metal detectors. In the hell of such a fight, the physical convenience and emotional distance offered by virtual court has been a mercy.

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“I’m so glad I don’t have to go there,” they say, one after the next.

I am too, and I’m not alone. The widespread consensus among survivor’s advocates is that remote proceedings are especially beneficial in domestic violence cases. In New York, the agency tasked with overseeing court operations has lauded the legal work being done virtually, and heralded this new      digital reality as a permanent fixture in the city’s legal landscape. In other jurisdictions, like Portland, Oregon, remote conferences in domestic violence matters are now      standard practice. Born of chaotic necessity, this new way of holding court provides so much relief from the widespread personal and systemic trauma suffered by survivor-litigants. It’s a wonderful byproduct of the very worst times.

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But for clients like mine, this new digital advantage is not guaranteed. Individual judges still have enough power to run their calendars as they wish. Some are now strong-arming people back to in-person court, and it’s survivors who are suffering. A few weeks ago, for example, a judge repeatedly attempted to dismiss my client’s custody case, without any legal basis and over my objection, simply because I would not agree to appear in-person for a hearing.

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The road to remote justice has been a rough one.

In March 2020, courts stopped operating altogether. Remote operations rolled out slowly that spring. Judges were at home. Court clerks, whose work makes court happen, were also home and without court-issued tech equipment to do their job of drafting and filing paperwork to start new cases or process the old ones. In New York, uploaded petitions sat, in a digital void, for months on end without docketing. Existing matters paused indefinitely.

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Unprocessed petitions accumulated. Meanwhile, reported domestic violence incidents were spiking nationwide. The system was failing the very people it existed to serve in an unprecedented way, and it was funneling their panic back to attorneys like me to assuage. The chaos is difficult to overstate.

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Eventually though, virtual courtrooms were set up. We logged on, conducted court, and found it to be an overdue evolution. For litigants without tech access, courthouses have supposedly re-opened. The courts have even developed methods for presiding over “hybrid” cases—where one party is in court, and the other logs on remotely.

For some judges though, the new reality is unwelcome.

The courts that handle domestic matters are shockingly archaic. In many jurisdictions, starting any kind of domestic case required spending a full day in the courthouse, filling out papers by hand, and standing by for hours while court officers bark at litigants’ every move and waiting families erupt into screaming matches. They are also severely under-resourced. The buildings themselves are filthy and derelict. Many courtrooms are just small converted offices, inadequately staffed with heavy dockets.

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Over the pandemic I’ve seen some resilient displays of patience from the bench, but I’ve been party to as many tantrums and outbursts. Judges screaming that they can’t access their physical files, or hear an interpreter over feedback. Or, most egregiously, threatening to unlawfully dismiss a litigant’s case when attorneys refuse to appear in-person due to concerns about the ongoing spread of COVID-19.

When a judge’s frustrations at technology come down on survivors like that, it subjects them to a new kind of abuse—an abuse of state-sanctioned power. They’re harming survivors in the process, when they should be adapting instead.

This month marks an abrupt return by some judges to in-person appearances on domestic violence matters. While delta rips through the nation and official guidance on COVID protections vacillate weekly, these courtrooms present an ominous opportunity for contagion. Attorney objections are being overruled or ignored. What about courtroom capacity? Distancing? With survivor waiting-rooms still closed, where should they go? We don’t know what to tell people, and that’s a problem. Sending victims into an unknown environment without being able to describe what they can expect is capricious, and runs afoul of the trauma-informed principles that guide domestic violence work. Many litigants are in court fighting over children who they’ve been told to keep home due to pre-existing conditions and potential COVID risks. The court’s insistence on in-person appearances thrusts them into a terrible position. It’s an unjust burden to place on these vulnerable litigants who are better served by the improved, digital approach.

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Remote proceedings protect survivors. Not just from the virus, but from abusers and more trauma. The courts should seize this opportunity, not reject it. Invest in technology, finesse remote practices, and direct jurists serving domestic violence survivors to adapt. Glitches and feedback cannot be a barrier to justice, especially when justice is better served virtually. After 18 months of screens, we can all understand the court’s technology fatigue. But to force domestic violence victims to choose between pursuing their rights and surviving this virus? It’s one type of survival pitted against another, and it’s not necessary. While the virus surges, and even after, the remote option must remain.

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