New laws and policies aimed at protecting victims of domestic violence have been adopted across the country over the last twenty years.The legal approaches taken to protect battered women and control family violence have resulted in significant changes in family law. New laws include statutes permitting civil protection or restraining orders, and laws requiring that domestic violence be considered in custody and/or visitation decisions. Both of these types of statutory reforms can provide protection to adult victims of domestic violence and their children. Evaluating a parent's fitness by considering past acts of violence to other family members results in decisions that are more likely to protect children than decisions that discount or disregard spousal abuse. Civil protection orders can provide abused women and their children with a quick and easily accessible remedy that provides housing, financial relief, and an order for custody. While there is some controversy about the effectiveness of such orders in cases involving severe violence, most advocates and scholars agree that these statutes can make some improvement in the lives of women and children.
The effectiveness of these new laws in reducing the incidence of domestic violence, however, has been limited for a number of reasons. One of the major barriers to using these laws to protect women is that proving domestic violence in court is difficult. First, the victim is often the only witness to the abuse. For a variety of reasons, victims are reluctant to testify against their abusers and pursue civil and criminal remedies. Even when they do testify, women who experience domestic violence are often not believed. Despite changes in legal and popular conceptions of domestic violence, judges and juries continue to ignore or discount victims' testimony about the abuse.
It is, therefore, essential for practitioners to be able to introduce as much evidence of the abuse as they can gather. Established principles of evidence law, however, present particular challenges in domestic violence litigation. While there is expansive literature on evidentiary challenges in criminal prosecutions for domestic violence, there is very little written about the way courts have looked at particular evidentiary issues in civil cases where domestic violence is at issue. This article is intended to assist practitioners in anticipating and responding to some of the evidentiary challenges in civil cases in which relief is sought for the victims of domestic violence.
First, expert testimony is often necessary to dispel common myths about battered women and to educate judges and juries about the dynamics of domestic violence. Recent case law, however, has limited the admissibility of 'non-scientific' expert testimony and may make it difficult for practitioners to use experts in their cases. In addition, particular evidentiary issues arise when victims are pursuing both criminal and civil remedies against the batterer. This article will explore the ways in which evidence issues may benefit and inhibit civil actions arising from the domestic violence. Finally, we will discuss the difficulties in using prior bad acts evidence. Because batterers tend to engage in repeated acts of abuse, evidence of prior acts may be particularly relevant in proving the extent of harm and predicting the likelihood of future abuse. Traditional principles of evidence law, however, often prohibit the admission of other crimes, wrongs and acts.
Evidence Issues in Domestic Violence Civil Cases, 34 ABA Fam. L. Q. 43 (Spring 2000) (co-authored with Jane Aiken) [reprinted in The Best Articles Published by the ABA, 17 GP Solo 14 (2000)]