The Criminal Justice System

Safety and Sobriety Manual
Best Practices in Domestic Violence and Substance Abuse

January 2005

Special Settings:  The Criminal Justice System

Common Perspectives

Although this best practice manual is targeted to direct service providers working in the substance abuse and/or domestic violence field, the collective authors of this manual concluded that the large number of domestic violence perpetrators involved in the criminal justice system necessitated the development of a separate chapter. This chapter is not sufficiently comprehensive to delineate all of the "best practices" within the intricacies of the criminal justice system; rather, it is intended to raise the general awareness of the system in its response to and treatment of the dual issues of domestic violence and substance abuse, and to encourage the system to undertake a more holistic approach to these dual issues.

An integrated systems approach is necessary to ensure that proper referrals are made, appropriate treatment is received, adequate support services are in place, and to improve communication between systems. It is important for service providers to understand the role of the criminal justice agents (law enforcement, courts, probation, etc.), since these agents can be their best resource in protecting the victim or getting the batterer to attend/participate in appropriate treatment.

A survey conducted by the American Correctional Association in 1990 found that more than half of female inmates report being victims of physical abuse and 36 percent report being victims of sexual abuse (that often occurred when they were adolescents or children). Batterer intervention programs report that approximately 80 percent of their referrals were court mandates (Healey, Smith & O'Sullivan, 1998).

The Illinois compiled statutes (ILCS), Chapter 750, defines domestic violence/abuse as "physical abuse, harassment, intimidation of a dependent, interference with personal liberty or willful deprivation," but does not include reasonable direction of a minor child by a parent or person in loco parentis. It also defines "family or household member" as inclusive of spouses, former spouses, parents, children, stepchildren and other persons related by blood or by present or prior marriage, persons who share or formerly shared a common dwelling, persons who have or allegedly have a child in common, persons who share or allegedly share a blood relationship through a child, persons who have or had a dating or engagement relationship, and persons with disabilities and their personal assistants.

Relationship Between Substance Use and the Crime of Domestic Violence

A National Institute of Justice study (1997), Drugs, Alcohol, and Domestic Violence in Memphis, indicates the following:

  • 92 percent of domestic violence assailants had used drugs or alcohol during the day of the assault.
  • 67 percent had used a combination of cocaine and alcohol.
  • 45 percent of assailants were described as using alcohol, drugs, or both daily to the point of intoxication during the past month.
  • 9 percent of assailants were either in treatment or had previously received treatment for substance abuse.
  • 89 percent of victims were repeat victims of current assailants.
  • 67 percent of assailants were on probation or parole at the time of assault.
  • 72 percent of victims were female;
    78 percent of assailants were male.
  • 42 percent of victims used alcohol or drugs the day of the assault -
    15 percent had used cocaine; about one half using cocaine reported being forced to by the assailant.
  • 68 percent of the assault episodes included use of a weapon, primarily blunt instruments such as hammers, baseball bats, etc.
  • 85 percent of the assaults were witnessed by children under the age of 18.
  • 15 percent of the victims in the survey were younger than 18 years and most were assaulted after witnessing assaults on their mother.

It is important to dispel the myth that substance use and/or abuse is the cause of domestic violence. Experts agree there is a connection between substance use disorders and domestic violence; however, domestic violence is not caused by the use of alcohol or other drugs. Research supports that the use of alcohol or other drugs is one of several factors that influence the batterer's behavior. Substance use disorders may increase the frequency or severity of violent episodes over time (Bennett, 1995; Jillson & Scott, 1996).

Batterers' Services

In July 1998, NIJ published a research brief titled Batterer Programs: What Criminal Justice Agencies Need to Know (Healey & Smith). The highlights of the brief provide this information:

Batterer intervention programs were originally established in the late 1970s as feminists and others called attention to the victimization of women through domestic violence, grassroots programs sprang up, and service providers recognized that the offenders' behavior needed to be addressed. The requirement that batterers attend intervention programs as a condition of probation or as part of pretrial or diversion is fast becoming a part of the response to domestic violence in many jurisdictions. However, judges and probation officers often lack basic information about program goals and methods. This report, a summary of the full-length study, attempts to meet that need by presenting information about batterer intervention programs operating throughout the country. The interventions described were selected to represent the range of programming available and include the established or "mainstream" programs as well as innovative approaches.

All programs are structurally similar, proceeding from intake through assessment, victim contact, group treatment, and completion; but each program is based on one of several theoretical approaches to domestic violence. Most of the pioneers in intervention use the feminist model, which attributes the problem to societal values that legitimate male control. This model, exemplified in the "Duluth Curriculum," uses education and skills building to re-socialize batterers. The less common family systems interventions, based on the notion that violent behavior stems from dysfunctional family interactions, emphasize building communication skills within the family. Psychotherapeutic and cognitive-behavioral interventions are based on the belief that domestic violence is related to the offender's psychological problems and, as a result, emphasize therapy and counseling. The EMERGE and AMEND models represent a blend of the feminist educational approach with more in depth and intensive group work.

Increased awareness of the diversity of the batterer population has given rise to the belief that more specialized approaches are needed. One trend reflects the idea that interventions should be based on various typologies or categories of batterers. Of these, the typologies that group offenders by their psychological factors may be less useful for criminal justice purposes than those that do so by degree of risk for dropping out or re-offending. Other specialized approaches are designed to enhance program retention of specific populations based on sociocultural characteristics such as poverty, race, ethnicity, nationality, gender, or sexual orientation.

Batterer intervention programs cannot deter domestic violence unless they are supported by the criminal justice system. Criminal justice responses to domestic violence should be coordinated to support batterer intervention. For example, the integrated criminal justice responses studied for this report included coordination among agencies; use of victim advocates throughout the system; designation of special, dedicated batterer intervention units; and provision of training for agency personnel. Probation officers have a key role as the critical link between the justice system and batterer interventions.

In a recent study of 840 men and their partners in four longstanding U.S. batterer programs (Gondolf, 2002), the best predictors of re-assault were prior arrest for crimes other than domestic violence, severe psychopathology, severe levels of physical abuse, victim perception of her safety, and drunkenness during the program. Drunkenness during the program and prior arrest are both within the domain of criminal justice staff to identify.

Gondolf suggests that previous offenders and severe first-time assaulters need more intensive programs, meeting at least two times a week for the first two months. In their key roles, probation officers are in a position to implement such changes in how batterers are processed in the system. He further suggests that courts may consider providing pre-trial referral to batterer intervention programs for first time offenders whose violence is less severe, but impose swift and certain sanctions on offenders for noncompliance, drunkenness, and reassault. Finally, as a result of this study, he recommends implementation of domestic violence courts similar to drug courts, with frequent reviews of program compliance and status.

Victims' Perspective

Another NIJ study (Keilitz et. al., 1998), Civil Protection Orders: Victims' Views on Effectiveness, indicated the following:

  • Effectiveness depends on how specific and comprehensive the orders are and how well they are enforced.
  • Victims indicated that effectiveness depended on how accessible the courts are for victims and how well established the links are between public and private services and support resources for victims.
  • Violations of the protection order increase and reported effectiveness decreases as the criminal record of the abuser becomes more serious.
  • Victims reported that the orders protected them against repeated incidents of physical and psychological abuse and were valuable in helping them regain a sense of well-being.
  • The study confirmed a strong correlation between the severity and duration of abuse - the longer women experience abuse, the more intense the behavior is likely to become and the more likely women are to be severely injured by their abusers.

Recent Legislation

The following legislation, which became effective in Illinois on Jan. 1, 1999, enhances the criminal justice system's ability to respond to and deter further family violence:

  • First Degree Murder: Amends the Criminal Code to state that a defendant, who is at least 18 years of age and who is guilty of first degree murder, is eligible for the death penalty when the victim had an order of protection against the defendant.
  • Domestic Battery and Violation of Order of Protection: Enhances a domestic battery and violation of order of protection charge from a Class A misdemeanor to a Class 4 felony if the defendant has a prior conviction for domestic battery or violation of order of protection.
  • Insurance: Forbids a company issuing property or casualty insurance from using the fact that an applicant incurred bodily harm as the result of domestic violence as the sole reason for a rating, underwriting, or claims handling decision.
  • Elder Abuse: Amends the Elder Abuse and Neglect Act to include a requirement that certain individuals report suspected elder abuse or neglect when it is believed that the elder is unable to seek help on his or her own.

Best Practices

The previously mentioned NIJ studies suggest the following:

  • Screen and/or test assailants at the time of arrest for alcohol or drug intoxication.
  • Detoxify arrested drug- or alcohol dependent assailants prior to release from jail. Probation officers should ensure that batterers are regularly re-evaluated for both violence and substance abuse throughout the course of the program.
  • Assess children who directly witness domestic violence to determine if services are needed.
  • Allow domestic violence assault victims to swear out arrest warrants at the assault scene.
  • Provide services for women whose self-esteem has been eroded by the manipulative and coercive behavior of a batterer.
  • Safety planning must begin at the earliest point of contact with the victim and continue throughout the process.
  • Accurate and complete information about the defendant (including previous arrests, substance abuse history, involvement with child protective services, and experience with batterer intervention) should be used to assist in making decisions concerning plea bargains, bail, and supervision and in fashioning the protection order.
  • Reduce time between arrest and intervention program enrollment for batterers.
  • Track participants more efficiently - practices currently involve referrals to a wide array of services.
  • Centralized dockets created to handle domestic violence cases result in increased expertise, and access to all criminal justice system players and services.
  • Opportunities for coordination by the criminal justice system include integrating batterer intervention with court-ordered substance abuse treatment.
  • Program and sentencing options are needed for the full range of batterers, not just the low-risk male heterosexuals (the most common category).
  • Further research is needed on the interactive aspects of domestic violence, such as use of criminal history information in crafting orders and counseling victims; effects and enforcement of specific terms of protection orders; and actions of police and prosecutors.
  • Substance abuse treatment programs should screen to identify batterers and victims of domestic violence. The treatment provider needs to respond to the safety needs of a woman with a substance use disorder who is being battered before developing a treatment program to help her overcome her addiction. It is important to address the issues that affect an individual's pattern of substance use so that they can be addressed and don't interfere with treatment (CSAT, 1997).