Breaking Up With the American Adversarial Approach in Criminal Domestic Violence Adjudication

Author: Tess Berkowitz

This paper takes the position that for survivors of domestic violence to be properly served by the legal system, such legal service must be made accessible through trauma-informed care.  This includes trauma-informed care for both for the survivor and the abuser.  This paper leaves to another day the topic of exactly what “justice” in such cases ought to be.  However, it takes the position that true “justice” should not be sought in a system that was not made to address this specific kind of violence and fact worsens the resulting trauma.  This paper asserts that the American adversarial system, regardless of different attempted safeguards, is unable to deliver justice in a trauma-informed manner.  This paper argues that, should certain hallmarks of the inquisitorial approach be integrated into the adjudication of domestic violence, survivors, defendants, and society, in general, would benefit greatly.  These elements include adopting a free proof approach to discovery, shifting the contest mentality between the prosecution and defendant to one focused on seeking truth and resolution, performing investigative interviewing of parties by a neutral trauma-informed fact-finder, and addressing domestic violence in a rehabilitative, rather than punitive, manner.

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