Research & Action Report Fall/Winter 2003

Human rights abuse charges are commonly used to attempt to tarnish political leaders and institutions in other countries. However, when the human rights lens focuses on U.S. institutions, such as the Massachusetts family court system, alarming cracks appear in the American assumption of justice at home. The Centers' Battered Mothers' Testimony Project (BMTP) has found that battered women often face yet another form of abuse in court.

Battered Mothers Speak Out, a report published by BMTP in November 2002, documents the human rights violations battered women suffer when they fight against their abusers for custody of their children in the Massachusetts family courts. Since 1999, project codirectors Carrie Cuthbert and Kim Slote have been gathering evidence about court processes and outcomes from abuse survivors, their advocates and counselors, and from state judicial and government officials.

"We interviewed 40 battered mothers with experience in 11 of Massachusetts' 14 counties who were diverse in terms of race, age,
socioeconomic status, and sexual orientation," said Cuthbert. "Despite their diversity, the problems that they identified were remarkably similar. The courts fail to protect battered women and children by issuing child custody rulings that endanger them. Family courts give custody to batterers. Child abusers are given unsupervised visitation. Women and children are required by the courts to interact with their abusers with no protection."

Ironically, Massachusetts is a leader in addressing domestic violence through criminal prosecution, crisis intervention, and social and public-health services. Massachusetts and many other states fail on the next frontier—when battered mothers go to court to retain custody of their children.

Mixed Message from the State

"Battered women get a mixed message from the state," Cuthbert said. "On one hand, they are told to leave their batterers to protect their children. But when they leave, they have to go to family court to resolve issues. The court tells them to maintain relations with this person and to foster a relationship between the children and their abuser. This way, batterers can continue the abuse following separation."

In court, women are often at a disadvantage. A law that could provide critical protection—the Massachusetts Presumption of Custody Law that affirms that children's best interests are not served when they are placed in the custody of a batterer or child abuser—is not regularly enforced. Women usually receive custody in uncontested cases, but the 1989 gender bias study commissioned by the Massachusetts Supreme Judicial Court found that fathers win three times more often than mothers in contested custody battles.

Ensuring better treatment and outcomes for battered women facing custody battles is urgent, says the BMTP team. Courageous women who left brutal partners expect justice in the family court system, and they are dismayed when custody goes to the person who abused them or their children. "Women lose trust in the court system," said Cuthbert. "That means battered mothers may stay with the batterer because they at least have some measure of control when they are present in the home."

Rising Activism

Cuthbert, Slote, and BMTP policy director Monica Ghosh Driggers saw increasing activism among the women who participated in Battered Mothers' Testimony Project interviews, focus groups, quarterly project meetings, and the May 2002 human rights tribunal at the Massachusetts State House. At the tribunal, four survivors told their stories of domestic abuse, attempts to flee it, and entrapment in legal snarls with their abusers. A video of the tribunal and copies of the November report have nearly sold out. Although the judicial response was critical of the report's methodology, the chief justice of the Massachusetts Probate and Family Court did send copies to every family court judge. And women continue to call the project months after the initial media coverage has died down.

"We‘ve had an overwhelmingly positive response from survivors," Cuthbert said. "Women from all across the country have called, saying, ‘This is my story. Your project made me feel like I'm not alone.' Because of this response, we think what we reported on was just the tip of the iceberg."

Although the research project ends in December 2003, the work of transforming project findings into concrete policy and practice is just beginning. A new grassroots organization of survivors and advocates—the Massachusetts Protective Parents Association—began meeting last summer. The project has been replicated in Arizona and several other states have expressed interest in the Massachusetts effort, all indications that the project's impact is growing.

Human Rights Perspective

The project's focus on international human rights standards helped draw support from survivors and transform them into leaders, BMTP leaders say. "Human rights looks at how governments treat citizens," said Cuthbert. "International human rights standards provide a yardstick to measure government action and inaction, as opposed to looking at an individual perpetrator."

In contrast to the focus in the U.S. on civil and political rights, the international human rights framework puts equal value on civil, political, economic, social, and cultural rights. The Battered Mothers' Testimony Project, a project of the WCW Women's Rights Network, embraces this broader scope. Battered mothers frequently face unmanageable legal expenses or lack access to the legal representation necessary to win court fights. Lack of economic rights, in essence, denies them justice.

"The power of human rights is that they affirm the gravity of what these women and children have had to go through," Cuthbert said. "These are not just bad outcomes or policies. These are human rights abuses. Everyone has a fundamental right to freedom from violence."

What's Next?

The publication of Battered Mothers Speak Out on the first day of the annual global campaign, 16 Days of Activism against Gender Violence, is focusing new energy on solving the systemic family court problems. Steps toward action include the founding of the Massachusetts Protective Parents Association and a new early intervention partnership between the Women's Bar Foundation and Help for Abused Women and Children, an advocacy group. The Battered Mothers' Testimony Project leadership and steering committee have addressed public meetings, research and domestic violence conferences, and the Governor's Commission on Domestic Violence. Amnesty International, the ACLU, the Executive Office of Public Safety for the State of Massachusetts, and organizations in several other states are developing initiatives based on project findings.

The BMTP team sees their work as a call for more research, activism, and action at the national level. Driggers, an expert in court reform, is currently pursuing possible sources of funding for a new project on gender and justice aimed at national legislation, expanded research, and broader advocacy.

"The court system seems to feel that if they are aware of a problem, then it is solved," Driggers said. "Ten years ago courts across the country produced gender bias reports and made recommendations and worked on a few. Female attorneys are no longer called ‘honey' in court, but treatment of female litigants doesn't seem to have improved. I want to go back and see if progress has been made."

The Findings

The Battered Mothers' Testimony Project found that the Massachusetts Family Court system violated human rights through:

  • Failure to protect battered women and children from abuse: incidents include granting child custody to batterers.
  • Discrimination and bias: holding mothers to a higher parenting standard than fathers.
  • Degrading treatment: court investigators treat battered women with disrespect.
  • Denial of due process: court officers pressure battered mothers to engage in unsafe face-to-face mediation with their abusers.
  • Allowing the batterer to continue the abuse through the court system: battered mothers are harassed emotionally and financially when batterers can file multiple, baseless motions.
  • Failure to respect economic rights: judges fail to hold batterers accountable for nonpayment of child support.

For more information on the Battered Mothers' Testimony Project and ongoing WCW work on this topic, visit www.wcwonline.org/wrn