برخورد با بیمار خشونت خانگی روانی عاملان: مدل قضایی فقهی و درمانی

People suffering from mental illness are increasingly referred to the domestic violence court. Yet the typical diversion programs available, including batterer's intervention programs, are inappropriate for those with serious mental illness. As a result, the Miami-Dade Domestic Violence Court has developed a new approach for dealing with this population that applies mental health court techniques in domestic violence court. This article will describe and discuss this pioneering model. It also will situate this model within the context of other problem-solving courts and discuss how the court uses principles and approaches of therapeutic jurisprudence. The paper presents some preliminary data that describe the social and legal characteristics of 20 defendants in the Domestic Violence Mental Health Court followed over a two year period between 2005 and 2007.

Therapeutic jurisprudence (hereinafter “TJ”) is an interdisciplinary method of legal scholarship that aims to reform the law in an effort to improve the psychological and emotional well being of those affected by the legal process (Winick, 2000). By using tools of the behavioral sciences, this method assesses the therapeutic and counter-therapeutic consequences of the law, with the goal of increasing the former and decreasing the latter (Winick, 2000). The research that developed from this mental health approach to law has since created a foundation for hundreds of “problem-solving” courts that have emerged in the United States. Though varying in their specialization, each of these courts alters the traditional roles of lawyers and judges in the judicial process, and links them with probation officers, social workers, and other justice system partners to develop a treatment team for each individual offender. These teams combine their efforts and attempt to create a strategy that will internally motivate the offender and produce long-lasting effects (Winick, 2000). The hope is to eventually reduce the rate of recidivism, and make the term “revolving door” obsolete. This article is an examination of a pioneering specialized court that aims to use the methods of TJ to minimize criminal offenses. The Domestic Violence Mental Health Court (DVMHC), located in Miami-Dade County, Florida, is a hybrid of both mental health and domestic violence courts, with the aim of treating the special problems presented by mentally ill domestic violence perpetrators. While both mental health courts and domestic violence courts are applications of TJ, domestic violence courts deviate somewhat from the traditional “problem-solving” court model. In mental health courts, the crimes are usually non-violent victimless acts. The system, therefore, takes a non-adversarial approach while working to rehabilitate the offender (Stefan & Winick, 2005). Domestic violence courts, on the other hand, serve offenders who commit violent acts, usually against a victim with whom they have an intimate relationship. These courts are therefore more adversarial and punishment-oriented, and have a zero-tolerance policy with regard to recidivism (Winick, 2000). However, because these courts promote the rehabilitation of the abusers, and assist the victims in receiving the necessary treatment and related services, they are still an application of TJ principles (Winick, 2000). This article therefore explores not only the derivation of the court, but the challenges it faces in attempting to balance the policies of two competing models, while meeting both the victims’ and offenders’ needs. Part I analyzes the origin of the court, dating back to the first drug treatment court. It continues by examining the distinct qualities of both the mental health and domestic violence courts, and assesses the various goals and models of each. Part II takes a closer look at the DVMHC and outlines the steps of the legal process these offenders endure. As such, it contrasts the legal status, procedures, and outcomes of offenders who take part in the Pre-trial Diversion program compared to those on probation, and those who undergo conditional release. In addition, this section evaluates the motivational techniques used by the various players in the system by assessing success stories of several offenders. While we acknowledge that these “case studies” are at an early unquantifiable stage of research, the stories that they tell are, nonetheless, important first steps in understanding the value and special challenges that are part of the DVMHC approach to domestic violence. Part III entails a retrospective study of cases of offenders who participated in DVMHC by comparing them to offenders who pled not guilty, and opted for trial. This study provides some initial data about the need for the DVMHC program and about the types of clients that the court serves. Most importantly, these preliminary data demonstrate the specific types of problems that offenders present in DVMHC in Miami-Dade County, Florida. Finally, Part IV contains some concluding remarks concerning the necessity of future studies, as well as the impact of TJ as a blueprint for developing the DVMHC model. It also addresses some potential problems with the model, and offers suggestions concerning their avoidance or minimization. We propose that the future success of these clients will be, in part, a function of the motivation and emotional focus that court personnel and agency players apply in this non-conventional, TJ approach to the treatment of domestic violence offenders.

The Miami-Dade County Domestic Violence Mental Health Court is an explicit therapeutic jurisprudence application. The judge functions to assist those with serious mental illness who commit domestic violence offenses to obtain needed treatment. Applying the approaches of drug treatment court, mental health court, and domestic violence court, the judge attempts to motivate the individual to obtain treatment, facilitate its delivery, monitor compliance, and bolster the individual's self-esteem and self-efficacy, building on existing strengths. The judge functions as a member of the treatment team, and applies a therapeutic rather than a punitive approach. In this regard, the judge performs a public health function. In playing this role, the judge uses approaches and applies principles of psychology. The judge displays empathy, listens to the individual, treats the individual with dignity and respect, and uses a form of behavioral contracting. The domestic violence mental health court involves a team approach in which court personnel and treatment providers assist the judge in the process of screening offenders to determine their appropriateness for the court. This typically includes whether the offenders have mental illness, whether they need treatment, and whether they would present a risk of violence if released to the community. The team helps to devise an appropriate treatment plan and to supervise and monitor the individual offender's performance and treatment. The domestic violence mental health court judge is a member of this treatment team. An essential part of the judge's role is to attempt to motivate the individual to accept needed treatment. The judge uses a form of motivational interviewing designed to trigger the individual's intrinsic motivation to deal with his or her mental illness. The team formulates an appropriate treatment plan, and court personnel, typically including a case manager and monitor, follow the individual's participation in the treatment program and submit periodic reports to the judge. The individual enters into an informal behavioral contract with the court in which he or she agrees to participate in treatment and to report periodically to the court so that the court can monitor treatment compliance. The judge–participant interaction at these periodic hearings is an essential component of the court process. The individual is encouraged to discuss his or her experiences and problems in treatment. The hearing becomes an exercise in creative problem solving in which the judge and other members of the treatment team attempt to resolve difficulties and overcome obstacles that have arisen in the treatment process. The hearing typically occurs in the presence of other domestic violence mental health court participants, all of whom are scheduled for a common report date. As a result, not only does the individual whose case is being discussed benefit from the court process but so do the other domestic violence mental health court participants who are present and who may be experiencing similar problems. The judge at these hearings often functions to help shape the individual's behavior by praising treatment compliance or sanctioning those who miss appointments or otherwise fail to comply with the treatment program. The behavioral contract that the individual enters into with the court, often on an informal basis, typically specifies the details of required participation and the sanctions that can result from noncompliance. Other domestic violence mental health court participants observing the individual's interaction with the judge, experience a measure of vicarious reinforcement. At the completion of a sufficient course of treatment in which the individual has achieved the goal specified in the behavioral contract and has demonstrated consistent performance and responsibility, the domestic violence mental health court judge will dismiss the individual's charges. The domestic violence mental health court represents a multiagency community response to the problem of untreated mental illness. The process is designed to motivate the individual to accept needed mental health treatment and to encourage and monitor treatment compliance. The judge and members of the treatment team often play a social work function in linking the individual to treatment resources in the community and facilitating their utilization and the individual's ongoing participation. Once the individual has agreed to accept participation in domestic violence mental health court, the defense attorney and prosecutor typically function to help motivate the individual to accept and to comply with treatment. To play their roles effectively, the judge and attorneys need enhanced interpersonal skills and an appreciation that they are functioning as therapeutic agents (Winick, 2003 and Winick and Wexler, 2003). In many ways, the domestic violence mental health court judge functions as a social worker. The domestic violence mental health court is an example of a hybrid problem solving court. Like other problem solving courts, the domestic violence mental health court is a specialized tribunal designed to help people solve their problems and to motivate them to accept various forms of rehabilitation or treatment (see Winick & Wexler, 2003). These courts apply principles of therapeutic jurisprudence to help to achieve the psychological well-being of those who appear before them. Like other problem solving courts, the domestic violence mental health court represents a new type of psychosocial agency. A judge may not be the best professional to play this role, but these problems confront the judge because our society often fails adequately to deal with the problem of untreated mental illness, with the result that the individual often winds up in the jail and the court. For this and other problem-solving court models to work more effectively, we need to provide more training in the approaches and techniques of psychology and social work for the judges in these courts. They themselves are not clinicians, but they are behavior-change agents, and they need to understand many of the techniques of psychology and social work in order to play their roles effectively. Our observations of Judge White-Labora revealed that she possesses an intuitive grasp of these approaches and an excellent ability to establish rapport with the individuals in court. In general, however, it is essential that a judge taking on this role enhance his or her interpersonal skills, understand the psychology of procedural justice, and understand techniques of motivation and compliance assurance. An emerging therapeutic jurisprudence literature deals with these issues and seeks to teach judges how to play these new roles (Winick, 2003 and Winick and Wexler, 2003). This new model presents some potential risks that are worthy of comment. One risk is that domestic violence mental health courts, if seen as an effective means of treating those with mental illness who resist treatment in the community, may be available to those who otherwise would not be considered to have committed domestic violence offenses. Out of frustration, the family may allege domestic violence in order to obtain the treatment intervention of the court. If applied in this way, to those who otherwise would not have been involved in domestic violence court, this would constitute an abuse of the model. The risk is that the police, at the behest of relatives or intimates, may arrest people with mental illness for offenses for which they may not have otherwise have arrested them. In other words, a successful domestic violence mental health court could have the effect of altering police arrest practices in the community aimed at dealing with people with untreated mental illness who may cause trouble that vaguely fits within the jurisdiction of the domestic violence court. Such a widening of the social net would be inappropriate, leading to further criminalization of those with mental illness. There is, however, no evidence that the domestic violence mental health court has been used in this way, producing the arrest of people for domestic violence offenses who otherwise would not have been arrested. Indeed, both Judge White-Labora and the public defender in her court deny that this has been a problem. It would be a serious mistake to use domestic violence mental health courts in this way. There are much better ways of getting needed treatment to those with mental illness than through the stigmatizing and unpleasant means of arrest for a domestic offense. Many police receive no training in how to deal with people with mental illness. Such training should be widely available, and police should be encouraged not to arrest people with mental illness whom family members and others allege have committed petty domestic violence offenses. Instead, they should divert them from jail by bringing them to appropriate community treatment facilities or linking them up to an assertive community treatment team. The family or intimate who makes a domestic violence complaint, but who is really seeking to get the individual into treatment, may understand if the officer explains the negative effects of arrest in jail and positive opportunities that community mental health treatment may involve. Domestic violence mental health courts should only divert those with mental illness who are arrested for domestic violence offenses for which they would have been arrested anyway. Otherwise, they could produce unnecessary criminalization and stigmatization of those with mental illness (Seltzer, 2005). Although it is good to divert people with mental illness from the criminal justice system, it is far better to divert them through alternative means that can avoid the criminal justice system altogether. Police arrest practices therefore should not change in response to domestic violence mental health courts. If anything, police should be encouraged to make lesser use of arrest and rely on other forms of diversion. An additional concern is the risk that domestic violence mental health court could lead to a fragmentation in the service delivery system. To the extent that domestic violence mental health court provides access to services not available for those with mental illness who do not commit domestic violence offences, a question of horizontal equity emerges. This problem, however, can be avoided. The level of services in the community should be increased generally, and all who voluntarily seek mental health services should have easy access to them. Given the serious social problems that untreated mental illness can produce, appropriate mental health services should be available on demand for all who desire them, and outreach services, including assertive community treatment, should be increased to reach out to all who are in need. We should have more of a preventative approach designed to avoid the necessity of hospitalization or arrest. If these needed services are provided, domestic violence mental health court will not result in affording those in the criminal justice system a superior access to needed services. An additional issue that domestic violence court raises is whether the defendant is sufficiently competent to provide informed consent to participate, and whether the choice made is truly voluntary (see Redlich, 2005). Some defendants with serious mental illness may not possess the requisite competence, but many will. When the question of a defendant's competence to accept diversion and treatment is raised, an inquiry into competence may be necessary as a matter of due process. Defense counsel can play an important role in ensuring that the individual is sufficiently competent to accept court participation, that he or she knows the consequences of accepting or rejecting such participation, and that the decision is made voluntarily rather than through coercion. Counsel should do this to not only protect clients' legal rights and interests, but also because doing so will maximize the therapeutic potential of the domestic violence mental health court, and thereby promote clients' psychological well-being (Winick, 2003). A difficult problem arises when the defendant, at first court appearance, presents in a florid state of psychosis. At this point, defense counsel will be unable to counsel the client effectively. Yet, should the judge order a formal competency evaluation, this may impose unnecessary delay and require that the defendant be returned to the jail. To avoid this, when the client assents to participation in the domestic violence mental health court program, and counsel concurs that it would be in his best interest, the court may consider accepting the defendant's assent provisionally, and allowing medication to start. After medication has had its desired effect, and the defendant is stabilized, defense counsel can have a more extended counseling session with the client to determine if he or she is capable of making an informed choice. If there is doubt about this, defense counsel may move for a formal competency determination and the court should grant a deferred withdrawal from the domestic violence mental health court program without prejudice (Seltzer, 2005). Should the defendant, in a more competent state, opt not to be in the program, the court might similarly grant a deferred withdrawal without prejudice. Assuming the defendant possesses the requisite competence to make the decision, the question of voluntariness remains an issue. In some problem solving courts, the judge, acting out of an excessive paternalism, pushes the individual to make the decision to accept court participation. Pressure of this kind is inappropriate, but seems not to be evident in the domestic violence mental health court we observed. In general, we need to make judges understand that they should not act paternalistically in playing their roles as problem solving court judges, but rather should give individuals a full measure of choice in whether to accept or reject participation (Winick, 2003). Individuals charged in domestic violence court have a fundamental constitutional right to deny their charges, to insist on a fair trial, and to mount a defense, if they wish to do so. Judges must respect the right of mentally ill defendants to do so even if the judges believe that the defendants should accept court participation instead. For those who accept participation, judges should seek to ensure that the defendant's decision is a voluntary and competent one. In many respects, assuring voluntariness and competence is the primary role of defense counsel. Defense lawyers should adequately counsel their clients about the advantages and disadvantages of accepting court participation. The problem of avoiding coercion in the defendant's decision whether to accept domestic violence mental health court can be significantly diminished if the judge and defense lawyer play their roles in these ways. Moreover, it is crucial that both the judge and defense lawyer treat the defendant with dignity and respect, demonstrate to the defendant their good faith, and accord the defendant a sense of voice and validation. If they act in this way, the likelihood that the defendant will experience feelings of coercion will be substantially reduced. This is important not only in increasing the defendant's sense of satisfaction with domestic violence mental health court, but also in increasing treatment compliance (Redlich, 2005 and Winick, 2003). The Miami-Dade County Domestic violence mental health court we observed seemed to avoid many of these problems and to reflect an appropriate application of many of the psychological and social work techniques that are needed for effective functioning in the problem-solving court context. To function effectively in this context, both the judge and the defense attorney must have enhanced interpersonal skills, must eschew paternalism, must treat the individual with dignity and respect, must heed the lessons of procedural justice, and must understand the psychological dimensions of such techniques as behavioral contracting and motivational interviewing (Winick, 2003). When the judge, lawyers, court personal, and the treatment providers they work with learn to function in these ways, they can establish in the domestic violence mental health court a supportive culture that can meaningfully facilitate the defendant's restoration to mental health. The arrest and court involvement can function as a real catalyst for change, as a therapeutic opportunity for the individual. But the individual must himself or herself see the need for change. The judge, lawyers, and treatment team can facilitate this process, but for it to work, the individual must take primary responsibility for solving his or her own problems (Winick & Wexler, 2003). When it works well, a real therapeutic alliance can be forged within the courtroom, one that can provide a significant measure of help for those who wish to accept it. This is the potential of domestic violence mental health court. When it can fulfill this potential, domestic violence mental health court can constitute therapeutic jurisprudence in practice.