From a September 28 post in Karl Bayer’s blog, Disputing:
A recent article in the Yale Journal of Law and Feminism entitled “Moving Out of the 1990s: An Argument for Updating Protocol on Divorce Mediation in Domestic Abuse Cases,” 22 Yale Journal of Law and Feminism 97 (2010), makes an interesting argument that many states need to reexamine policies banning or restricting mediation in divorce proceedings involving domestic violence.
I’m going to permit myself an observation on the article in question despite my only having read its abstract. (I haven’t found the full text online.)
In the 1980s and 1990s, the feminist critique of mediation centred on how the process disadvantaged women as a whole. The mediation process was private, not accountable, and did not create or rely on precedent cases. In contrast, the legal system was public, accountable, rights-, and precedent-based. Consequently, it offered women much more of ‘a level playing field’ as well as legal protections and rights than the mediation process itself.
In evaluative mediation, the so-called ‘shadow of the law’ actually becomes a virtual party to the mediation process. So, in calling for the reform of policies on court mediation where DV is involved on the basis of the present realities of court mediation (evaluative not facilitative), the article is in a sense extending the former feminist critique of mediation as a whole: the more mediation resembles a legal process, the more acceptable it will be to women.
But is this the only way mediation in DV cases is acceptable? For me, the key question in DV cases is to customize a process that doesn’t deny a victim her voice or her options while at the same time ensuring her safety and protection. Since 2004, this type of approach has been implemented in Dutchess County, N.Y, through partnering mediators and DV counsellors: “The first rule in all such cases is the domestic violence itself is never a topic for mediation.”
A while back, a Canadian suffering from Alzheimer’s disease became a cause célèbre when it was learned that he had spent 30-days in jail before a bed was found in a long-term care facility. He landed in jail when in a confused state, he pushed his wife down; she needed eight stitches to close the wound from the fall. The wife agreed reluctantly to press charges when advised that that was the only way to get her husband the help he needed. The help he got was to spend time in a medical unit of jail; fortunately, his case attracted media attention, and a bed in a proper care institution was found for him. However, he still has to return to court on November 8th to face charges of assault causing bodily harm.
In reviewing the case, André Picard of the Globe and Mail writes today:
When a sick person urinates in public, shoplifts, trashes the family home or hits someone during a psychotic outburst, the police always say the same thing: Press charges and they will get help.
But the help too rarely comes. That’s why our prisons are full of people with mental illness. (One in eight federal prisoners has a diagnosable mental illness, and the rate is significantly higher in provincial jails.)
All we need now is to start dispatching elderly Alzheimer’s patients to jail for their transgressions.
Let’s state it plainly so that politicians, judges, physicians and others in positions of responsibility understand: It is unacceptable to jail someone with Alzheimer’s. (emphasis added)
Psychosis is a common symptom of Alzheimer’s and other forms of dementia. It needs to be treated, not punished.
Jail is not – and will never be – a substitute for care, and care should never be dependent on criminal charges. Our health system and our justice system need to be more humane and rational than that.
We don’t need Grandpa Prisons. We need a dementia strategy.
Please read André Picard’s column in its entirety.
Elizabeth Cooney this past Monday in the Boston Globe on the effects family arguments have on children:
There is new evidence that family arguing leaves a long-lasting imprint on children, diminishing their future happiness and ability to prosper in the world – even when the anger is verbal, not physical. The evidence comes from a landmark study that began more than 31 years ago in Quincy kindergartens, and continues with little fanfare today. The Simmons Longitudinal Study has followed more than 300 one-time kindergartners into adulthood, tracking them along the way, recording their childhood experiences, and matching that history against who they are in middle age.
[. . .]
The most recent [findings of the study], published last month in the Journal of the American Academy of Child & Adolescent Psychiatry, focused on family arguments and physical violence. [...]
[. . .]
“While it makes sense that physical violence scars children,” [...] said [Helen Reinherz ... who has led the Quincy study since its inception in 1977], “the documentation of the potential lasting influence of verbal conflict is significant. . . . We believe that exposure to increased family argument in adolescence served as an important marker for impaired functioning into adulthood.”
[. . .]
Arguments don’t have to descend into verbal abuse, experts say. The solution is to make the arguments constructive, or, failing that, to swiftly repair the damage of heated words. When ruptures do occur, saying sorry right away can heal the harm.
[. . .]
“It really is about trying to teach people how to be able to communicate what they think and feel in a way that is constructive and not destructive,” said Michelle Fagnano, director of prevention services at the Massachusetts Society for Prevention of Cruelty to Children.
“It does take work to undo some of the damage that gets done,” she said. “No family is perfect and every family in one way or another argues, but it is what you do with that argument that will have the greater impact in the long haul.”
Further to my post, Polygamy & Human Rights, I received a link to a trailer of the film, Banking on Heaven, from Laurie Allen. She produced, narrated and wrote this insider’s look at the largest polygamous enclave in the U.S., having herself escaped from a similar polygamous sect.
Barbara Kay has a strongly-worded column in Full Comment, the National Post‘s blog, on a recent family law decision awarding sole custody of three daughters to the father.
The “persistent and overwhelming” campaign by the mother over the course of more than a decade was recognized as emotional abuse by Ontario Superior Court Justice Faye McWatt, and the children have been sent to a California therapeutic recovery centre for treatment.
[. . .]
According to the judgment against K. D., she is denied all contact with the girls, even by telephone or text messages She has been ordered not to come closer to them than 300 metres. A. L. has been given the right to confiscate their computers and cellphones. This is necessary, Justice McWatt said, because the mother had so poisoned her children’s feelings toward their father that they had lost their capacity for independent judgment in relating to him.
Although the father’s lawyer hailed the ruling as a “wake-up call to vengeful parents”, Kay takes exception to this optimistic view Continue reading
Section 293 of the Canadian Criminal Code states:
293. (1) Every one who
(a) practises or enters into or in any manner agrees or consents to practise or enter into
(i) any form of polygamy, or
(ii) any kind of conjugal union with more than one person at the same time,
whether or not it is by law recognized as a binding form of marriage, or
(b) celebrates, assists or is a party to a rite, ceremony, contract or consent that purports to sanction a relationship mentioned in subparagraph (a)(i) or (ii),
is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years. Continue reading
In today’s Times of London, Camilla Cavendish has a column entitled, “First battered at home and then by the State”. It’s about a specific case involving a woman victim of domestic violence. The abusive ex-husband won custody of their boy after alleging that his ex-partner suffers from a disorder that used to be called Munchausen’s syndrome by proxy and is now referred to as fabricated or induced illness. The local authorities became concerned after the woman became pregnant and had a second child from another relationship — Cavendish writes that the parents found the suspicion of the local authorities hard to bear. In the event, the baby then ten weeks old was taken from the mother and put into care. Continue reading
For an alternate perspective on this issue, see “Procedures cut mediation risks in domestic cases” from the Poughkeepsie Journal, June 5, 2006