Judging Domestic Violence From the Bench: A Narrative Analysis of Judicial Anecdotes About Domestic Violence Protective Order Cases

Abstract

Interview participants sometimes share anecdotes (stories about past events), to illustrate a point or discuss their perspectives. When sharing these stories, participants may imbue the events with their own personal meaning-making, selective memory, and biases. We conducted a narrative analysis of anecdotes shared by judges (n = 20) who preside over Domestic Violence Protective Order (DVPO) hearings to examine how biases and misperceptions shape decisions in DVPO cases. We found that judges rely on biases to sort cases as “true domestic violence” compared with “frivolous cases." In the anecdotes they shared, judges often used gendered stereotypes to depict litigants, and many judges felt that DVPOs had limited efficacy in preventing violence. We argue that important cognitive insights are revealed by interview participants during the spontaneous act of storytelling. In the case of judges, their biases could lead to DVPOs being denied in situations when they are warranted.

Keywords

narrative analysis decision making domestic violence domestic abuse legal issues qualitative narrative inquiry storytelling United States of America

Introduction

Domestic violence (DV) affects 3 to 4 million women in the United States every year (Walters, Chen, & Breiding, 2013). DV can take many forms, but for the purpose of this article, DV is defined as violence perpetrated by a current or former intimate partner and may include physical violence, sexual assault, stalking, emotional manipulation, or a combination of these acts (Centers for Disease Control and Prevention [CDC], 2017). DV can cause immediate physical injury and is also associated with subsequent mental health problems including posttraumatic stress disorder (PTSD), anxiety, depression, and ongoing fear or concern for safety (Walters et al., 2013). DV is also associated with negative long-term physical health outcomes including chronic pain, headaches, diabetes, gastrointestinal issues, respiratory problems such as asthma, bone diseases such as osteoporosis, and memory loss (Dillon, Hussain, Loxton, & Rahman, 2013). DV can often persist throughout the life course, especially when an abusive relationship continues (Band-Winterstein & Eisikovits, 2009). There are, however, resources and interventions available that reduce and prevent DV.

Domestic Violence Protective Orders (DVPOs)

Survivors of DV can seek protection from their abusers by applying for a Domestic Violence Protective Order (DVPO). DVPOs are civil restraining orders that are available in all 50 states as well as the District of Columbia (DeJong & Burgess-Proctor, 2006; Eigenberg, McGuffee, Berry, & Hall, 2003). DVPOs are the most widely used legal intervention for DV in the United States (DeJong & Burgess-Proctor, 2006; Jordan, 2004; Logan, Shannon, Walker, & Faragher, 2006).

Emerging research suggests that DVPOs can be effective at discouraging additional acts of DV and keeping survivors safe (Benitez, McNiel, & Binder, 2010; Carlson, Harris, & Holden, 1999; McFarlane et al., 2004; Messing, O’Sullivan, Cavanaugh, Webster, & Campbell, 2016). DVPOs also improve a survivor’s sense of safety, security, and quality of life (Benitez et al., 2010; Ko, 2002; Logan & Walker, 2009, 2010). One study found that protective orders can save taxpayers the equivalent of $85 million in a single year (due to decreased 9-1-1 phone calls, fewer arrests, less work time lost, lower mental health service utilization, and decreases in other health costs; Logan, Walker, & Hoyt, 2012).

To obtain a DVPO, a survivor (also referred to as the victim or the plaintiff in legal settings—most commonly a woman; Moracco et al., 2010), must first file paperwork in the local district court. During a subsequent court hearing, a judge will accept testimony, witness statements, and evidence to assess whether or not a case qualifies for a DVPO. If the judge determines that an act of DV has occurred or that there is imminent danger of DV, the judge will issue a DVPO, often called a “final order” or a “permanent order,” which usually lasts for 12 months. In North Carolina, where this study takes place, DVPOs are also sometimes called 50Bs, referring to the 50B statute. Final DVPOs typically order the defendant to refrain from assaulting, threatening, abusing, following, harassing, or otherwise interfering with the plaintiff. Final DVPOs can also include other provisions, such as evicting the defendant from a shared residence or restricting a defendant’s access to firearms (Parker & Smith, 2012). If a judge determines that the case does not meet the state’s statutory requirements for a DVPO, the judge will deny the order.

The Role of Bias in Decision Making

The judicial decision-making process for DVPOs is largely unstudied (Hartman & Belknap, 2003); however, we can extrapolate about the role of bias in these decisions based on research conducted with physicians. Explicit bias is defined as conscious, or deliberate thoughts or beliefs that shape prejudice and action, whereas implicit biases are subconscious (Hall et al., 2015). When medical providers interact with a patient, they make diagnostic decisions using two mental processes, the first is automatic and unconscious while the second is based on slower, critical reasoning (Croskerry, 2013; Peters et al., 2017). During the automatic, unconscious phase, physicians may be vulnerable to implicit bias based on stereotypes or misconceptions, and during the second phase, explicit biases may affect decisions.

In medical settings, bias has been most commonly documented based on the race or ethnicity of a patient, such that race-based discrimination against patients will result in lower quality care and poorer patient–provider communication (Thomas, 2018). Even beyond the context of race, physicians may sort patients into categories based on past observations, learned patterns, or stereotypes. In one study by van Rijssen, Schellart, Berkhof, Anema, and van der Beek (2010), researchers found that biases or stereotypes often guide physicians’ diagnostic and treatment decisions (van Rijssen et al., 2010). While this can save time overall, stereotypes sometimes led physicians to make incorrect assumptions, ignore key details, and to change their communication style with patients (van Rijssen et al., 2010). Bias therefore plays an important role in guiding medical encounters, which ultimately has important implications for patient health.

Bias and Misperception in the Adjudication of DVPOs

Unlike physician decision making in health care encounters, limited research has been conducted on judicial decision making for DVPOs (Hartman & Belknap, 2003). Judges often have a paucity of evidence with which to assess DVPO cases (Agnew-Brune, Moracco, Person, & Bowling, 2015; DeJong & Burgess-Proctor, 2006; Visher, Harrell, & Newmark, 2007), and in the absence of sufficient information, the human brain may rely more on stereotypes or biases to guide their assessment of a situation (Guthrie, Rachlinski, & Wistrich, 2007).

Past studies have demonstrated that lay people may harbor gender or racial biases that influence their assessment of culpability in DV scenarios (Esqueda & Harrison, 2005). A study by Saunders (1995) reviewed law enforcement officers’ reactions to vignettes of DV and found that officers perceived DV as justified in many situations, which could potentially affect their decision to arrest (or not arrest) abusers (Saunders, 1995). Robinson (2010) also documented that nurses may rely on stereotypes to decide whether or not to screen patients for DV (Robinson, 2010). There are a number of prevalent cultural myths surrounding DV, such as the belief that some victims provoke abuse (and therefore deserve it) (Harrison & Esqueda, 1999). Another common misconception is that it is easy for victims to leave their abusers, and for those that do not leave, it is because they “like” the abuse or because the victim has been exaggerating their experience of violence (Policastro & Payne, 2013). In addition, many people believe that only physical violence constitutes “true” DV, without taking into account emotional violence, manipulative or coercive behaviors, or stalking (Johnson, 2008). These common misconceptions may affect how certain victims are (or are not) perceived as legitimate. Assumptions based on common stereotypes or beliefs about DV may therefore influence judicial decision making in DVPO hearings, leading to systematic denial of legal protection to certain litigants.

To better understand the heuristics of judicial decision making in DVPO cases, we undertook a narrative analysis of anecdotes shared by North Carolina District Court judges. Anecdotes are short narratives about real incidents or people. We argue that these spontaneous anecdotes provide insight into the storyteller’s cognitions, perceptions, and biases. We sought to answer the following research questions:

Research Question 1: What kinds of anecdotes did judges share when discussing the DVPO process?

Research Question 2: What do these anecdotes reveal about potential judicial biases or misperceptions related to DV?

Method

Narrative Analysis

“Stories” are defined as ordered events containing elements of action, characters, setting, and plot that are conveyed to an audience (Sandelowski, 1991). According to Jerome Bruner’s functional approach to narrative, people use stories to make sense of chaotic events by imposing clarity, sequence, and meaning (Bruner, 1991). Within a social constructivist epistemology, stories are not static records of past events, instead they are an active sociological process of human interpretation; the kinds of stories people tell can reveal truths about the story-teller’s perceptions (Bruner, 1991; Polkinghorne, 1995). Stories can therefore be isolated as meaningful units of analysis to study how humans perceive the world.

While extensive research has been conducted using narrative inquiry, a methodology focused on intentionally provoking a research participant to tell a story, less research has examined stories that are spontaneously shared during interviews (Brannen, 2013). Rather than intentionally soliciting stories, we examine anecdotes (short stories told about real incidents or people), which were extemporaneously shared during semistructured interviews. Some researchers also use narrative analyses within an emancipatory framework to empower an oppressed group in the creation of a shared narrative (Banks-Wallace, 1998; Grassley & Nelms, 2009). We take a contrasting approach, using anecdotes to examine how bias among powerful individuals (judges) may constitute a form of structural violence enacted unwittingly against those without power (survivors of DV).

When examining stories, both the content (e.g., the events, the characters) and the form (e.g., where and how the story is told) is of compelling value (Lieblich, Tuval-Mashiach, & Zilber, 1998). While most qualitative analyses focus on content, the connecting pieces that preface and conclude anecdotal text is of particular focus here. People share stories for many different reasons (Gibbs, 2007). Understanding what elicits the story and what value, lessons-learned, or conclusions the narrator makes about the story can reveal why the narrator considers certain events memorable or theoretically relevant, and how past events shape their current behaviors.

We examine secondhand stories that are re-packaged and heavily laden with a third-party perspective. These anecdotes contain details both about the initial DV incident shared by litigants, but also about the judge’s own emotions and perceptions based on their courtroom interactions. When an individual shares stories about another person’s experience, the storyteller imbues the event with their own meaning-making, selective memory, biases, and/or subjective impressions of the main characters. For this article, we examine anecdotes told about the experiences of others, the meaning that the narrator gleans from those anecdotes, and the judgments that the narrator passes on the characters.

Data Collection

We performed a secondary analysis of 20 phone interviews with judges conducted March-June, 2013. The goal of the original study was to assess what factors would make judges more or less likely to grant DVPOs (e.g., threshold of violence, presence of shared children), to identify how much information was available to judges about each case, and to document common judicial processes. Interview participants were selected from a stratified random sample of all North Carolina District Court Judges, with strata based on the annual number of DVPO cases filed in each judicial district. All three interviewers were women with professional experience as DV researchers and advocates. Phone interviews lasted 30 to 45 minutes, and each judge provided verbal informed consent to be interviewed. The research team used a semistructured interview guide including open-ended questions such as, “What factors would make you more or less likely to issue a DVPO?” The guide also included questions about what advice judges offer to DVPO litigants, and what judges worry about when deciding whether to grant a DVPO. No probes were used to intentionally elicit anecdotes. For a more detailed description of the data collection methods, see Agnew-Brune et al. (2015). The University of North Carolina at Chapel Hill Office of Human Research Ethics (OHRE) deemed this research exempt from review.

Participants

Of the 20 judges interviewed, 14 judges were male and six were female. The interviewees had served as North Carolina District Court judges for between 4 months to 19 years (median = 11 years; Agnew-Brune et al., 2015). The volume of DVPO cases per year from the district they represented also varied substantially, from 96 to 3,380 cases (median = 520; Agnew-Brune et al., 2015).

Data Analysis

Our data analysis process unfolded through a number of discrete phases. To begin, the first author (J.K.) read all transcripts twice in their entirety while taking extensive notes and memoing (Saldaña, 2016). Memoing allowed the first author to practice reflexivity by recording any first impressions about the data, and identifying emotional reactions or potential biases that she herself may have regarding the content. She presented a number of memos to the third author (C.B.), an expert in qualitative and mixed methods research, for input. At this stage, we finalized the research questions for this article and decided to focus on anecdotes as the unit of analysis. The second author (K.M.), a content expert in DVPOs and DV, provided valuable insight into how to interpret potential evidence of DV-related biases.

Following Riessman’s (2008) guidance to isolate narrative passages in interview data (Riessman, 2008), the first author identified 60 potential anecdotes during a third read-through. She defined an anecdote as any story that recaptured a concrete instance in time featuring real people (e.g., not a hypothetical scenario). Based on Saldaña’s recommendation to work in hardcopy and “touch the data” (Saldaña, 2016, p. 22), the first author printed the anecdotes for review. Upon close examination, only 52 of these excerpts met the definition above for being a true “anecdote.” The excerpts that she eliminated were stories that did not refer to any definitive points in time or individual people. Instead, they talked about hypothetical plaintiffs/defendants, or discussed a common sequence of events for plaintiffs/defendants.

Table 1 displays the number of anecdotes shared by each judge. Eight judges did not use any anecdotes during their interviews. Six judges used one or two anecdotes, and another six judges shared three or more anecdotes (including two judges who used seven anecdotes, and one judge who shared 16 separate anecdotes). Whether or not judges shared anecdotes seemed to be less of a function of any demographic variables, and more closely related to how much time and attention the judge had to devote to the interview. Judges who shared anecdotes generally went into greater depth for question prompts overall. By focusing on anecdotes, we took a purposive subsample of the original study population.

Table 1.

Judges Interviewed, Including Gender and the Number Anecdotes Shared, n = 20.

No. of Anecdotes Shared During Interview	Average DVPOs per Year in District	Years as District Court Judge
Male Judges Interviewed
0	Less than 500 DVPOs	11+ years
0	500–700 DVPOs	0–5 years
0	500–700 DVPOs	11+ years
0	500–700 DVPOs	0–5 years
0	700+ DVPOs	0–5 years
1	Less than 500 DVPOs	11+ years
1	Less than 500 DVPOs	0–5 years
1	500–700 DVPOs	0–5 years
2	Less than 500 DVPOs	11+ years
2	700+ DVPOs	11+ years
4	700+ DVPOs	11+ years
5	Less than 500 DVPOs	6–10 years
7	Less than 500 DVPOs	6–10 years
7	700+ DVPOs	11+ years
Female Judges Interviewed
0	500–700 DVPOs	0–5 years
0	Less than 500 DVPOs	11+ years
0	700+ DVPOs	11+ years
1	700+ DVPOs	6–10 years
3	500–700 DVPOs	11+ years
16	Less than 500 DVPOs	6–10 years

Note. Average DVPOs per year in district was calculated using 2011–2012 data from the North Carolina Administrative Office of the Courts (2012). DVPO = Domestic Violence Protective Order.

To analyze the content and typology of the anecdotes, the first author created a codebook using both in vivo codes such as “true domestic violence” and inductive codes such as “role reversal” and “murder.” These codes helped the authors sort and characterize the anecdotes and identify common themes. The third author reviewed the codebook in depth, and after revisions, it contained a total of 37 codes.

Next, the first author created summaries of each anecdote using verbatim quotes to record (a) what elicited the anecdote, (b) the events in the story itself, and (c) the coda. The coda is defined as the “final clause which returns the narrative to the time of speaking” (Labov, 1997). For this study, the coda might include brief reflections on how the events of one particular story made the narrator feel, how it impacted their work, or how it changed their perspective. By keeping narratives whole and intact, we were able to focus on both the content and context of the stories (Maxwell & Miller, 2008; Riessman, 2008). For an example of these narrative summaries, see Figure 1.

Figure 1.

Example of an anecdote summary.

Finally, the first author produced matrices juxtaposing the different kinds of anecdote typologies (see summary information in Figure 2). The authors then convened to discuss findings, review these analytical products, draft the article, and make revisions.

Figure 2.

Count of anecdotes categorized as “true DV,” role reversal, and “frivolous cases.”

Results

Anecdotes from these interviews largely fell into one of two categories, both derived from in vivo codes. Most stories that judges shared illustrated cases where there was “true DV,” where the judge seemed to be believe there was authentic abuse occurring and the plaintiff (the victim/survivor) was deserving of a DVPO. On the other hand, judges also shared anecdotes that they framed as “frivolous,” where they believed that the plaintiff was abusing the system or had filed for a DVPO based on a meritless claim. In the results that follow, we present anecdotes about true DV alongside anecdotes about frivolous cases for comparison. There were only a few anecdotes that straddled this dichotomy—These are discussed briefly in the final section. Figure 2 depicts the number of anecdotes that judges framed as true DV compared with those they framed as frivolous cases. Only four anecdotes were not sortable using this system. Those four anecdotes pertained to administrative details of the DVPO process, or stories about cases that were not between intimate partners.

To avoid being exploitative, we have omitted or summarized violent or graphic details in the results section, unless they illuminate a theme pertaining to the study research questions. We also refer to judges using gender neutral pronouns (they/them/theirs) to avoid deductive disclosure.

“True” DV

DV is often conceived of in terms of physical violence, where one party clearly overpowers the other and inflicts visible injury. Anecdotes about true DV tended to fit this designation, where there was demonstrated past violence or a palpable threat of future violence. For example, one anecdote described an instance where the judge saw the plaintiff had clearly been, “beaten in the head and her mouth was so swollen that she couldn’t testify. She had to write down what she wanted to say.” Another judge shared a story about a plaintiff who did not appear in court because a recent DV incident had injured her so badly. The judge explained,

We had one woman, I’ll never forget it. One of my judges refused to enter the order but because she didn’t make, because she wasn’t there . . . [the judge] was busy, tough day. Turns out the woman wasn’t there because she was in the hospital as a result of her injuries. Two weeks! Fractured spine, skull, but [the judge] didn’t bother to [enter the order].

This anecdote evinced how dangerous it is for plaintiffs to seek DVPOs, and how this legal process may occur at the apex of violence. It also shows how judges often described cases with clear evidence of physical violence to epitomize circumstances that deserved a DVPO.

Other anecdotes about true DV often included details that overtly depicted violence or included threats of future violence. One judge shared a story about a defendant who had made serious threats to the plaintiff over text messages saying, “I’m coming to get you, I’m loading my gun, I’m gonna shoot you.” The judge concluded that the text message evidence was convincing evidence of true DV and that the plaintiff should receive a DVPO.

Sometimes, judges said they needed to look beyond court testimony to determine if there was true DV going on. One anecdote featured a conversation with a female plaintiff outside of the courtroom. The judge explained,

This lady caught me before I went into my office on a court day and, and said, you know, “I got this charge against my husband and I wanna dismiss this.” . . . [The] courthouse was kind of crowded there and there are people standing around all over the place, and I, I saw that she seemed to be with a guy. So I said, well, okay, let’s go in here and talk about it, so I took her into my office and kept him out. And I said, “okay, what’s going on here” and she literally, immediately without saying another word, broke into tears. And he was threatening to kill her if she didn’t get this thing dismissed, so. You know, these things happen.

What was notable about this story was not only the agency that the judge took to check-in with the victim and safeguard her autonomy in the DVPO process, but also the dynamic they acknowledged about litigants being manipulated as a function of ongoing DV. The judge was very matter-of-fact in the coda, explaining “these things happen,” perhaps suggesting that this is a dynamic of true DV that they had observed many times in court, and that they had accepted as reality.

Other judges similarly discussed how the dynamics of true DV had affected their approach to DVPO hearings. One judge provided an anecdote about a case where the plaintiff did not show up because the defendant had murdered her before th hearing. The judge concluded the anecdote by saying, "When you hear of them found dead in a ditch at the hands of [the defendant] . . . you know, you go, let’s be sure.” These anecdotes described forces beyond a judge’s control, yet the coda (“let’s be sure”) suggests that these horror stories serve as a reminder for them to err on the side of granting a DVPO to prevent violence.

In some cases, a judge might have sensed that there was a clear history of violence, but they may be unable to grant a DVPO if the plaintiff decided to revoke her request for protection.

I was just flabbergasted by this. There, there had been allegedly . . . a-a- a history of, uh, domestic violence over the period of the relationship. There’re children involved and, and this woman comes in with a motion to set aside the order . . . She did talk about the economics to some extent, um, but then she said “Well, I love him.” Okay, I’ve heard that before, and I—I’m, you know, I’m getting kind of old and grumpy and I. You know, you think, “Well, ain’t love grand.” . . . Then she said, “And I’m lonely.” And she meant it. She meant it. You could see it in her face. She was lonely. She was there. He was following the order, having no contact. And she was by herself, and she just hadn’t been by herself and apparently, she’d rather be beat on than be alone. Just amazing.

This anecdote captured the judge’s confusion and consternation with the plaintiff’s decision to return to her abuser. There may be many reasons why a survivor chooses to stay with her abuser, often economic reasons, fear of escalating violence, or otherwise, but in this anecdote, the judge characterized her choice as an emotional one, not a rational decision.

A number of true DV anecdotes described cases where violence continued despite the plaintiff’s attempts to engage with the DVPO process. The following anecdote described an incident that occurred while a DVPO had been continued for nearly a year, during which the defendant assaulted the plaintiff in the shower with boiling water from the stove. The judge ended this story by saying,

. . . That poor victim ran out to the street, completely naked and, you know, someone called police and like I said I’m not sure why this happened that way but that pending order was in place for a year. Yeah, which I think is a travesty of justice but, you know, it is what it is.

In the coda, the judge called out a major failure in the system yet they simultaneously accepted these flaws as reality by concluding “it is what it is.” This was a nod to the entrenched nature of true DV that allowed these patterns of abuse to continue, or perhaps it was a testament to how inured judges can be when exposed to so many stories of violence.

There were many violent examples of true DV when the defendant easily violated the order to kill or severely injure the plaintiff. One judge shared a disturbing story, first by saying, “you know, you’re always reluctant to deny ’em, you know? Because they go out and kill the woman.” The judge then explained how they granted an order and the defendant, “he got, got very angry” and then proceeded to burn his wife’s house down and stabbed both the wife and their son to death. Sparing the details, what is most striking about this anecdote is not only the violence, but the coda. The judge concluded, “I always tell these women that this is a piece of paper . . . I mean it’s not an insignificant piece of paper but it’s not a shield.” This closing quote illustrates how the judge perceives DVPOs as dangerously limited in their capacity to provide physical protection. It is also worth noting that this judge, among many others, commonly referred to plaintiffs collectively as “women” or “the women,” denoting not only how often the plaintiff was a female in their courtroom, but also evoking the perceived defenselessness of female DV victims.

Other judges also readily acknowledged that when true DV was ocurring, a DVPO might not be enough to keep the plaintiff safe. One judge explained how they leaned over during court in one particular case to tell the plaintiff, “you’ve got to put deadbolts in, you know. Drill- you know, drill holes and put them in [your door].” Another judge shared a similar sentiment, explaining how after granting an order, they explained to a plaintiff, “. . .[T]his is a piece of paper, it does not stop bullets or knives and you still need to take appropriate steps to protect yourself.” Despite having already issued an order, some judges expressed the need to give advice to the plaintiffs to try and help them stay safe; the judges felt that the order itself was not necessarily enough to prevent future violence.

Judges shared many anecdotes about true DV where the system failed to protect a survivor. Many of these anecdotes featured themes of guilt, liability, and personal responsibility that the judges wrestled with after a violence incident. This anecdote describes a personal story about a judge who received news that a plaintiff had been murdered after an order was issued:

The district attorney called me, and started explaining that a couple that had been in my courtroom, I had denied the 50B [DVPO] and that the wife went back to the house and the husband, um . . . [details omitted] killed her . . . I had to know whether I did something wrong . . . I had entered a “do not assault, harass, threaten” but did not evict him from the home. And [my colleague] said to me that they would not have entered an order at all. They would have denied it. But I don’t think there is a week that goes by that I don’t think about that situation and her children and that family. It’s very difficult. Very difficult, a lot of work to be fair in those cases. It’d be really easy to go in and grant one every time but you’re not doing your job if you do that.

The judge grappled internally with their responsibility for this violent outcome and externally with the media’s portrayal of the judge as “cold-hearted” and “horrible.” They explained how they must live with the failings of the DVPO system when they say, “I don’t think there is a week that goes by that I don’t think about that situation and her children and that family.” Despite the clear violence in this case, the anecdote concludes with the judge positioning themselves as a gatekeeper to prevent potentially underserving plaintiffs from receiving DVPOs.

There were also other stories judges shared about assessing the system’s failure to protect a survivor. This anecdote began when the judge discussed their desire to review all the murder–suicides that took place in the district since they became a judge. They asked, “[was there] something we could’ve done differently?” The judge explained,

Our general conclusion was the women, um, just were not aware of how in danger they were and they had not yet sought protection for the DVPO, they, um, one old lady got shot in a parking lot as she was walking into the courthouse, um and then the guy committed suicide. She was coming to file but, um, she didn’t want to charge criminally because she wasn’t genuinely afraid of him she just wanted him to stay out of the trailer to keep from going back to her property. So she was given the option to charge the guy criminally but she said “Nah, I don’t want to lock him up” she, she mis-accused, as I guess the rest of us did too . . . I’m, we’re, we try to be on a heightened alert to these cases, um, to make sure that one of ‘em that we don’t, or that we ignore, um, the issue, but um, it’s just sometimes you can’t see it coming . . . It’s like the women can’t see it coming.

This judge shared blame both with themself and with the plaintiff, who miscalculated the risk for violence. Their final statement, “It’s like the women can’t see it coming” is a gender-laden judgment, evoking a stereotype that women may be naive or oblivious to threats. Although this particular plaintiff did not charge the defendant criminally, she did have the foresight to initiate the DVPO process. In the coda, the judge turned to the theme of unpredictability, a common chorus echoing throughout these stories. Many anecdotes illustrated how this uncertainty and volatility weighed on judges, undermining their ability to make an accurate assessment of imminent threat, and weakening the power of a DVPO to provide meaningful protection. Many judges seemed to wrestle both with a fear of their own fallibility, and the ultimate weakness of the DVPO system itself in preventing violence.

“Frivolous” Cases

While anecdotes about true DV contained pronounced and sometimes unexpected instances of violence punctuating the story, frivolous cases were not characterized by physical violence. Five judges independently used the word “frivolous” to describe some of the cases they reviewed. The term “frivolous” is not well defined in any particular statute or legal document, but it is used informally in the justice system to refer to any baseless litigation (Rhode, 2004). Even when judges did not explicitly use the term “frivolous,” anecdotes about what judges perceived as frivolous cases were clearly identifiable.

Stories about frivolous cases featured plaintiffs that judges felt had filed for a DVPO to manipulate their partners within a dysfunctional relationship. The judges used tropes such as the “psychotic ex-wife,” the “jealous, lying girlfriend,” or featured plaintiffs who were out to take advantage of the system by filing DVPO cases in multiple counties. In many of these stories of frivolous cases, the judge acknowledged that “that’s the only time I’ve ever seen that happen,” or “that statistically doesn’t happen very often.” Yet because they were cited commonly throughout the interviews, these instances undoubtedly had a lasting impression.

One anecdote about a frivolous case featured a plaintiff trying to manipulate the system by evicting her older husband from their shared home. The judge began,

Some people will, will, will want to abuse, you know . . . [in one] instance, a man was married, and, and the woman was a lot younger than him . . . She said something and it was nothing, it was no violence there . . . I had this real terrible feeling that like . . . She married him and now she wants to get his butt out of the house . . . You don’t wanna think there’re people like that, like you know. But sometimes there are . . . (I: Which is so horrible because people, you know, mess it up for people that really need it.) Well sure they do! But I’m not goanna let, I’m not goanna let it happen.

Here, the judge perceived the plaintiff as a gold digger, marrying an older man for money or to gain access to his assets. In the coda, the judge positioned themself as protector and guardian of the DVPO system and underlines their prudence in awarding cases only to those who are truly experiencing DV. This story reflected other anecdotes, amplifying the need to parse out blame, assessing if the DVPO court process is being used as a means to gain leverage in a housing dispute, a custody battle, or even in a petty argument. As another judge explained after sharing an anecdote,

It was just taking advantage of a system that was there. Um, and so you can’t, you can’t ignore the abuses and say “gosh, everybody that asks for one gets one.” You still have to find the legal basis for doing what it is that you’re doing.

The coda situates the judge as a gatekeeper preventing unmeritorious individuals from abusing the law to gain the upper hand in a martial dispute. Another judge told a similar story about a male defendant who threw paper down on the table near his wife, which she claimed was an act of DV. Although they might be unacceptable behaviors, the judges used these anecdotes of frivolous cases to illustrate that these claims did not deserve protection.

In contrast, other stories about frivolous cases were couched in optimism, while mirroring a sense of detached resignation. One story featured a couple who decided they wanted to dismiss the request for a DVPO. The judge recounted,

You can tell they were happier, and she said he had, he had gone to AA, he was doing something about his drinking. And they felt real good about it, and I said well you wanna continue with this? And she said, she said “no.” She said, “I think he’s done, you know, he’s really good.” I said “well you can always take another one out,” and I looked at him said “you understand that.” . . . [but] they seem real happy about it, so I thought now, you know, so I went ahead and she wanted a dismissal.

The judge explained quickly that other times, “you can tell somebody’s real terrified,” drawing a contrast again between dismissals that appear to be frivolous cases with those that exhibit violent dynamics of true DV.

Some anecdotes about frivolous cases featured plaintiffs who had already successfully received a DVPO, and out of spite, wanted to manipulate the defendant into violating the order. In one story, the judge describes,

. . . The 50B [DVPO] had been granted because the boyfriend and girlfriend broke up, and the boyfriend alleged that the girlfriend emailed him repeatedly over that year threatening him . . . [now they’re in court] on a criminal charge that she violated the 50B [DVPO] . . . I mean, and there were no threats going on, and there was nothing dangerous . . . they were just communicating [again] and then he was like “Gotcha!” . . . I really question . . . that getting a bunch of emails after a relationship has broken up really constitutes grounds for a 50B [DVPO] . . . Sometimes they get entered under that prong and I really question, are we really doing [DVPO] anybody a service? Um. If it’s just email communication and there’s no threats, and there’s no history of violence and . . . I don’t know.

The exclamation of “Gotcha!” epitomizes the judges’ perception that some plaintiffs create traps to lure the defendant into violating an order. Another judge shared a similar story featuring a vengeful female plaintiff, where she outright told a law enforcement officer, “I’m goanna [make him] violate this order today.” The judge explained how a witness, “saw her trolling [the defendant] in the parking lot and she had a little posse with her,” suggesting that the plaintiff intended to provoke the defendant into breaking the order. In the criminal court hearing about the DVPO violation, the judge explained that “she was taunting him,” and that case therefore ended in a “big fat not guilty.”

On the contrary, there were some anecdotes about frivolous cases where the DVPO process was used by an abuser to enact vengeance or manipulate a survivor. One anecdote featured a story about a previous (male) defendant who took out a new order to “sort of get her back for pursuing him for assaults and things . . . to harass [her].” The following section contains greater detail about anecdotes when the judge had trouble determining whether it was the plaintiff or the defendant who needed protection.

Role Reversal

Some cases did not clearly fit into the dichotomy of true DV or frivolous cases and instead included elements of both. This small subset of anecdotes (n = 4) featured role reversals, in which either the plaintiff was the true violent actor, or there were transgressions on both sides. In these anecdotes, judges explained that sometimes the recent conflict was “clearly initiated by, um, the past victim” and that the violence grew from “trauma and inability to let go.” This language illuminates what the judge may have felt were deeply entrenched dynamics of abuse and romantic attachment. Some judges openly admitted their perplexity about a couple’s decision to stay together despite shared dysfunction and violence. One judge explained,

If it’s a relationship based up on violence you have to consider the possibility that it could be the other way around . . . And that’s rare, I’m not saying that’s something that always happens, but I am saying you can’t always assume . . . that the defendant is the one who’s going to be violent in the situation. It could be the plaintiff.

Themes of power, control, shared dysfunction, and retribution emerged prominently in this subset of anecdotes, sometimes reveling a perspective where both the plaintiff and the defendant were portrayed as enablers of violence.

Discussion

Assessing biased perceptions is a challenge in social and behavioral research. Asking participants point blank about stereotypes or implicit assumptions will put the participant on the defensive. It is also a challenging topic to honestly and eloquently reflect on; implicit bias is, by definition, not conscious. By using secondary data to analyze extemporaneous anecdotes, researchers can study how a participant organically retells events, analyzing both the content and structure of these narratives (Lieblich et al., 1998). The way an interview participant portrays characters may reveal how the narrator perceives those individuals and the social groups they represent. This novel analytical approach can lend important insights into an interview participant’s biases, perceptions, and decision-making heuristics.

Bias and Heuristics in Judicial Decision Making

We found that judges sort cases as either true DV, or as frivolous cases. Most stories of true DV featured physical violence, while stories about frivolous cases contained either no violence or dynamics that could be construed as emotional abuse/harassment. Because physical violence is often more visible (e.g., conspicuous injuries, necessary hospital visits), people may consider physical violence as the only legitimate type of DV. Emotional abuse may be less readily recognized and named as DV, despite the fact that the North Carolina state statutes considers harassment or any behavior that inflicts significant emotional distress as a type of DV (North Carolina General Assembly, 2005 § 50B-1b). While some judges portrayed anecdotes about emotional abuse as deserving of a DVPO, many anecdotes that included alleged harassment or emotional abuse were more often framed by judges as if they were frivolous cases.

In anecdotes about true DV, the violent actor was most commonly male, while women were portrayed as unsuspecting victims. This gendered pattern of perpetration and victimization in the anecdotes is consistent with national trends (Black et al., 2011), but the gendered characteristics that judges repeatedly assigned to plaintiffs and defendants in the anecdotes were likely influenced by stereotypes. Esqueda and Harrison (2005) note that women who experience DV may commonly be perceived as, helpless, weak, passive, or dependent (Esqueda & Harrison, 2005). This trope featuring defenseless female victims plays into an iconography that venerates the “perfect victim”—if a DV victim is not visibly fearful and otherwise faultless in nature, then it is not true DV. While some judges painted stories of “flawed” plaintiffs who still deserved DVPOs, many judges prefaced stories of frivolous cases by discussing flawed behavior on the part of the female plaintiff, suggesting shared blame for the violence. Focusing on the flaws of the victim may contribute to dismissing cases where the female does not fit the picture of a “perfect victim,” despite still possibly experiencing DV.

While female plaintiffs were more often portrayed as helpless victims in instances of true DV, gendered depictions differed for anecdotes about frivolous cases. For frivolous cases, judges often characterized women as jealous and vengeful provocateurs, while male defendants were portrayed as rational actors. These depictions are noteworthy—By dismissing a portion of female litigants as provoking abuse, it is possible that underlying dynamics of violence are missed. It is a common belief that women who experience DV may provoke the violence (Esqueda & Harrison, 2005). As one qualitative study by Hartman and Belknap (2003) reported, judges in Family Court “frequently viewed [female plaintiffs] as pathetic, stupid, or even deserving of the abuse they experienced” (Hartman & Belknap, 2003, p. 363). While the judges in the present study were not nearly as overt in their language, judges may still endorse DV myths or stereotypes at a subconscious level, resulting in judicial behaviors that inadvertently undermine survivors. Judicial decisions are bound by state statutes; however, these are open to subjective interpretation (Hartman & Belknap, 2003) and additional training for judges may help them better identify and avoid the incursion of culturally dominant biases about DV. Many judges openly expressed perplexity about the complex dynamics of DV, such as why a survivor may choose to stay with her abuser; and they may be accepting of additional training related to understanding the complex dynamics of DV.

Despite the serious, sometimes fatal consequences described in anecdotes about true DV, judges highlighted the importance of being prudent in granting orders. Many of the stories about frivolous cases were qualified by a coda statement, where judges positioned themselves as gatekeepers, ensuring that only people who were “truly” experiencing violence would be granted a DVPO. It is possible; however, that some cases they perceived as frivolous were categorized based on biases and misperceptions about DV. To draw a comparison to research on provider bias, researchers have documented that unconscious feelings and impressions tend to precede and influence rational decision making. In Crepeau’s (2000) narrative analysis of medical provider team meetings, they found that physicians thought of themselves as healers, and when patients were resistant to treatment regimens, it could leave physicians feeling frustrated and more likely to dismiss these patients as “bad,” or as being “difficult.” As Crepeau (2000) argues, when physicians talk about their patients it sometimes represents a provider’s evaluation of the patient’s social worth (Crepeau, 2000). These evaluations of social worth may serve to justify decisions that would typically be arrived at through medical reasoning alone (Crepeau, 2000). Our study illuminates that similar dynamics may be at play among judges in the legal system. When judges preside over a case with a plaintiff who does not perfectly fit in to the venerated ideal image of a “victim” that needs saving, it may frustrate a judge’s perception of themselves as gatekeepers leaving them more likely to deny an order.

Implications for Practice

One common theme in the anecdotes about true DV was that extreme acts of violence are unpredictable and sometimes cannot be avoided, even if a DVPO is granted. Judges framed DVPOs as legally relevant, but only symbolic when it came to actually preventing physical violence. Duker and Whiton (2012) reported that legal authorities also described a protective order as “just a piece of paper” (Duker & Whiton, 2012), language similar to a quote from the present study. DVPOs are not actively monitored; the burden is on the survivor to report violations so that law enforcement can then take appropriate action—after injury or other psychological trauma has occurred.

Despite judge’s perceptions of limited DVPO efficacy, emerging research suggests that DVPOs can decrease risk of intimate partner sexual assault or physical abuse (Carlson et al., 1999; Holt, Kernic, Lumley, Wolf, & Rivara, 2002; McFarlane et al., 2004) and improve a survivor’s subjective feelings of safety, security, and quality of life (Benitez et al., 2010; Ko, 2002; Logan & Walker, 2009, 2010). While about 30-50% of DVPOs are violated (Benitez et al., 2010; Russell, 2012), researchers have found significant reductions in abuse and violence for survivors who receive DVPOs, even among survivors who experience a violation (Logan & Walker, 2010).

Judges shared a great number of violent stories about DVPO violations, and it is likely that these are the most common cases they hear about once litigants leave the courtroom. Judges likely do not hear many success stories about cases where DVPOs effectively decrease violence. DVPO violations, therefore, may disproportionately influence judges’ assessment of the value of a DVPO. This is commonly referred to as an availability heuristic or a negativity bias (Ito, Larsen, Smith, & Cacioppo, 1998; Tversky & Kahneman, 1973). It may be beneficial to correct the perception that DVPO violations are prevalent and put DVPO efficacy in perspective so that judges can understand how powerful DVPOs can be in reducing or preventing violence, even in the case of some violations. Only by correcting this misperception can we ensure that judges are not undervaluing DVPOs in a way that affects how they assess and grant orders.

As evidenced in these anecdotes, judges may become desensitized to repeatedly hearing about DV. While emotional distance is important in legal settings, many interview participants expressed a weariness or a resigned acceptance of DV. Judges may be experiencing compassion fatigue or burnout. This raises the potential need for professional supports or networks to help judges process the difficult content in the cases they hear, and the psychological toll that can result from vicarious trauma (Schauben & Frazier, 1995).

The influence of misperceptions and implicit biases may operate more acutely when there is severe cognitive load such as stress, compassion fatigue, or burnout (Burgess, Beach, & Saha, 2017). Biases can be recognized and overridden once the individual has trained themselves to maintain vigilance over their thinking processes (Croskerry, 2013). Critical assessment of bias must be encouraged not only at the individual-level through trainings but also at an institutional level.

When bias operates systematically to disadvantage people, it becomes a form of structural violence (Galtung, 1969). Some medical schools have taken a proactive approach to train students to critically identify and interrupt biases (van Ryn et al., 2015), and these trainings, when administered correctly, have proven to be effective (Berkhof, van Rijssen, Schellart, Anema, & van der Beek, 2011). The medical field has only just begun efforts to interrupt bias, and the justice system should consider adopting some of these new and important approaches. Judges could be exposed to implicit bias trainings throughout their career beginning with formal training in law school.

Limitations

Our study is subject to several limitations. While there were 20 judges involved in the original interviews, eight judges did not share any anecdotes. These eight judges went into less depth in response to the interview prompts overall, perhaps had less time to devote to the interview discussion, or were less invested in the topic. While these eight transcripts were not included in the final analysis, they were initially coded and many themes that were discussed in this paper were present in those interview transcripts in other ways.

Judges may have shared anecdotes about extreme as opposed to typical cases. While this does not allow representative insight into the caseload that judges preside over, this does provide an opportunity to investigate more extreme or memorable stories that preoccupy judges.

Conclusion

By using anecdotes as a unit of analysis, we demonstrate that biases and cognitive processes can be revealed by an interview participant during the act of storytelling. In representing the stories of others, the storyteller inadvertently presents their own truths, providing a unique opportunity for insight and analysis. Using anecdotes to identify how participants frame certain characters or events can provide rich data about the assumptions and perceptions that influence a participant’s behavior in the world.

Footnotes

Acknowledgements

We acknowledge two of the researchers who conducted the original interviews we analyzed in this article: Christine Agnew-Brune and Cara J. Person. We also thank the district court judges who participated in this study. Finally, we acknowledge Alexendra Dest for her encouragement and early input on the research questions for this article.

Declaration of Conflicting Interests

The authors declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The authors disclosed receipt of the following financial support for the research, authorship, and/or publication of this article: For information on funding of the original study, see Agnew-Brune et al (2015).

Author Biographies

Julie M. Kafka, MPH, is a student in the doctoral program in the Health Behavior Department at UNC Gillings School of Global Public Health in Chapel Hill, North Carolina, USA.

Kathryn E. Moracco, PhD, MPH, is a research associate professor in the Health Behavior Department at UNC Gillings School of Global Public Health in Chapel Hill, North Carolina, USA.

Clare Barrington, PhD, MPH, is an associate professor in the Health Behavior Department at UNC Gillings School of Global Public Health in Chapel Hill, North Carolina, USA.

Afsaneh L. Mortazavi is a student in the MPH program in the Health Behavior Department at UNC Gillings School of Global Public Health in Chapel Hill, North Carolina, USA.

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