By: Samantha Marquardt, Volume 105 Staff Member
COVID-19 has given rise to what has been called a second “invisible” pandemic of domestic violence. Stay-at-home orders, increased economic insecurity, and crisis-induced stress have all contributed to a surge of domestic violence cases around the world. In the state of Minnesota, domestic violence shelter requests spiked shortly after the state’s first stay-at-home order on March 27, 2020. Increased rates of domestic violence are known to occur during crises such as natural disasters and pandemics, but this does not mean that institutions are fully equipped to handle these challenges. While domestic violence victims are experiencing many new difficulties, this Post will focus on two legal issues aggravated by the COVID-19 pandemic—securing legal recourse for domestic violence victims, namely protection orders, and ensuring victim safety amidst pressures to limit and reduce prison populations. This Post will argue that while the pandemic has exacerbated these two issues, it may also provide an opportunity to both improve victim accessibility to the legal system and deemphasize arrest and incarceration as the ultimate objectives in domestic violence cases.
I. THE COVID-19 PANDEMIC HAS CREATED NEW CHALLENGES IN DOMESTIC VIOLENCE LEGAL PROCEEDINGS
Protection orders are key legal tools for domestic violence victims. Protection orders are issued by a state court judge and can include provisions that require an abuser to cease abuse, stay away from the victim, cease contact with the victim, and more. However, the pandemic has, in many cases, aggravated the process of obtaining a protection order. For instance, some courts have struggled to shift their entire process for protection orders to a virtual platform, and many domestic violence victims have struggled to access technology for printing protection orders and participating in virtual court proceedings. For those who can access the technology, video conferencing may present privacy concerns: the victim may cohabitate with the abuser, making it difficult to conduct private virtual proceedings, or have concerns about revealing information about their living situation to an abuser.
Equally troublesome, many victims have experienced a lack of information about the changes taking place in courts’ processes for domestic violence proceedings. In many courts, the pandemic has also decreased the speed at which protection orders—and domestic violence proceedings in general—can proceed. Certain procedural requirements have become more difficult, such as notarization and technology issues slowing down hearings. Judge H. Lee Chitwood at the Juvenile and Domestic Relations District Court in Virginia cited concerns about the continuation of domestic violence dockets and the negative effects that delays could have on victim safety. Delays in these processes may lead to the victim sharing space for longer with the abuser, potentially prolonging the abuse.
Another concerning effect of the pandemic on domestic violence victims is leniency on offenders due to increased pressures to limit arrests and release inmates in order to combat the rapid spread of COVID-19 in incarcerated populations. While these are important public health measures, they also present concerns for domestic violence victims’ safety. Oftentimes, domestic violence victims do not seek legal recourse due to previous negative experiences with or general distrust of the legal system. Releasing or failing to arrest an abuser could further decrease a victim’s trust and belief in the legal system, having long-ranging effects on victims’ ability and willingness to seek legal recourse. Judge Berryl Anderson at the Magistrate Court in Georgia and Judge Chitwood both stated that multiple defense attorneys have recently requested release of their clients—domestic violence perpetrators—on agreed bond orders without hearings due to the spread of COVID-19 in prisons. Though they both indicated a continuing commitment to victim safety, they also emphasized the need to balance public health measures with justice and safety for victims.
II. BALANCING THE INTERESTS OF DOMESTIC VIOLENCE VICTIMS AND THE STRAINS ON THE LEGAL SYSTEM CREATED BY THE PANDEMIC
These challenges are not new: domestic violence victims have struggled to access legal resources and received inadequate protection in the past. Still, the COVID-19 pandemic provides an opportunity to rethink and reform legal barriers to justice in domestic violence cases. First, domestic violence must be included in pandemic response efforts. While the pandemic has caused difficulties throughout the legal system, domestic violence situations are unique in their exacerbation through isolation and delayed legal recourse. Second, legal reform must be victim-centered. Accessibility issues that existed prior to the pandemic have been further brought to light, and courts and agencies have the opportunity to reform their processes in such a way that virtual proceedings may actually become safer and more efficient than in-person proceedings. For example, virtual proceedings may give victims an increased sense of security since they do not have to confront their abuser in-person or in an unfamiliar environment. Plus, one victim advocacy group in New York noted increased efficiency of the protection order process since going remote, and family courts in New York “are discussing making the virtual technology available to litigants seeking protection orders after the pandemic” in order to help more people.
Third, changes in procedures and requirements must be communicated to victims, victim advocates, and agencies using resources such as translators and the expansion of outreach beyond traditional modes of communication. Finally, collaboration between courts and agencies is necessary to quickly inform and adopt best practices. For example, other courts could benefit from learning about the procedures at the Family Division of Tulsa County District Court, where a statute has been in place since 1982 that allows emergency protection orders to be handled remotely when the building is closed.
When it comes to the issue of releasing perpetrators, criminal justice authorities must be mindful of the concerns on both sides. For instance, while judges can weigh the competing factors in these cases for themselves, individualized risk assessments conducted by professionals may be helpful in determining the likelihood of continuing violence if a perpetrator is released. “Stay away provisions” and other legal tools that deter an abuser from reoffending or even contacting the victim must also be prioritized if a perpetrator is to be released. Efforts should once again be victim-centered, including open communication about potential release and additional support provided for the victim if the abuser is released.
The effects of the COVID-19 pandemic on domestic violence cases highlight how legal responses to domestic violence can evolve to prioritize victims. Some courts have already seized the opportunity the pandemic has created to improve safety, accessibility, and efficiency in domestic violence legal proceedings, and others must follow suit. Additionally, the new incentive to limit prison populations coupled with the continuing need to protect and support domestic violence victims presents an opportunity to consider unique avenues of justice in domestic violence cases that deemphasize incarceration and focus on victim centered restorative justice. The COVID-19 pandemic has forced a chance not only to reform legal proceedings in domestic violence cases, but also to expand our understanding of the meaning of justice in these cases.
 See Caroline Bettinger-Lopez, A Double Pandemic: Domestic Violence in the Age of COVID-19, Council on Foreign Relations (May 13, 2020), https://www.cfr.org/in-brief/double-pandemic-domestic-violence-age-covid-19 [https://perma.cc/U3Q6-G4YQ]; Sophia Davies & Emma Batha, Europe Braces for Domestic Abuse ‘Perfect Storm’ Amid Coronavirus Lockdown, Thomson Reuters Found. (Mar. 26, 2020), https://news.trust.org/item/20200326160316-7l0uf/ [https://perma.cc/VJL4-QYSD].
 See Cheryl Thomas, Domestic Violence and Court Services During COVID-19, Jurist (Apr. 25, 2020), https://www.jurist.org/commentary/2020/04/cheryl-thomas-covid19-domestic-violence/ [https://perma.cc/25N9-DQK5] (reporting that France, Argentina, and Brazil have reported a 30%, 25%, and 40% increase in domestic violence calls, respectively).
 See Salma Loum, Has Pandemic Lockdown Led to More Domestic Violence in Minnesota?, StarTribune (September 29, 2020), https://www.startribune.com/domestic-violence-covid-pandemic-lockdown-led-to-more-increase-rise-cases-minnesota/572408791/?refresh=true [https://perma.cc/3ZZ5-JQGX].
 See Thomas, supra note 2.
 See Domestic Violence Restraining Orders, WomensLaw, https://www.womenslaw.org/laws/general/restraining-orders [https://perma.cc/TU39-6YVM].
 See Frequently Asked Questions Involving Courts and COVID-19, WomensLaw, https://www.womenslaw.org/laws/preparing-court-yourself/frequently-asked-questions-involving-courts-and-covid-19 [https://perma.cc/SHC3-QXUF] for information on how state courts are handling protection orders during the pandemic.
 Webinar: Court Responses to Domestic Violence Cases During the COVID-19 Pandemic: A Panel Discussion, Nat’l Council of Juvenile & Fam. Ct. Judges [hereinafter Court Responses to Domestic Violence], https://www.ncjfcj.org/webcasts/court-responses-to-domestic-violence-cases-during-the-covid-19-pandemic-a-panel-discussion/ [https://perma.cc/K9E2-P8GX].
 See id.
 See id.; see also Ana Speed, Callum Thomson & Kayliegh Richardson, Stay Home, Stay Safe, Save Lives? An Analysis of the Impact of COVID-19 on the Ability of Gender-based Violence to Access Justice, 84 J. Crim. L. 539, 565–66 (2020) (noting that the pandemic has led to a lack of public messaging and subsequent lack of understanding by domestic violence victims regarding methods of legal recourse).
 See Court Responses to Domestic Violence, supra note 8.
 See id. at 9:59.
 See id. at 34:00.
 See id. at 38:37; see also Speed, Callum & Richardson, supra note 10, at 549 (citing concerns about delays in criminal trials due to COVID-19 and the effect that delays could have on victims of domestic violence).
 See Amalesh Sharma & Sourav Bikash Borah, COVID-19 and Domestic Violence: An Indirect Path to Social and Economic Crisis, J. Fam. Violence 1, 5 (2020) (“Due to lockdown and social distancing measures, it may be difficult to separate the two parties if legal actions are not carried out quickly.”).
 See Bettinger-Lopez, supra note 1 (“As prisons have become hotbeds for the spread of COVID-19, some criminal justice authorities are halting arrests and releasing inmates.”).
 See Speed, Callum & Richardson, supra note 10, at 549 (citing research suggesting that “one of the main reasons why a victim may disengage with a prosecution is due to ‘dissatisfaction, or fear of, the court process.’”).
 See Court Responses to Domestic Violence, supra note 8, at 49:00, 51:00.
 See Sharma & Borah, supra note 15, at 5 (“Given that speed of response is critical, policymakers must include responses to domestic violence with the pandemic response agenda, including providing the key resources (e.g., financial funding, human resources, and law-enforcing power related to domestic violence cases) to government organizations so that response speed can be increased.”).
 See Allie Reed & Madison Alder, Virtual Hearings Put Children, Abuse Victims at Ease in Court, Bloomberg L. (July 23, 2020), https://news.bloomberglaw.com/us-law-week/virtual-hearings-put-children-abuse-victims-at-ease-in-court [https://perma.cc/5EXG-6TA6].
 While the pandemic has increased our reliance on technology and virtual communication, abusers often isolate their victims from friends, family, and the outside world by limiting their access to the internet and cell phones. Thus, posting information about domestic violence resources in public places such as grocery stores or including a list of resources in food bank boxes could allow isolated victims to reach out and gather accurate information on their current options. See Supporting Victims of Domestic Violence during the COVID-19 Pandemic, Int’l Ass’n of Chiefs of Police (May 18, 2020), https://www.theiacp.org/resources/document/supporting-victims-of-domestic-violence-during-the-covid-19-pandemic [https://perma.cc/G2WE-FMFT].
 See Robert Wolf, In Practice: Courts Respond as COVID-19 Fuels Rise in Domestic Violence, Ctr. for Ct. Innovation (Mar. 31, 2020), https://www.courtinnovation.org/publications/courts-covid-dv [https://perma.cc/Z6ME-LAE9].
 Of the three recent agreed bond orders that have been presented to Judge Chitwood, he has insisted on hearings for all of them and ultimately rejected two. See Court Responses to Domestic Violence, supra note 8, at 49:30.
 In general, a domestic violence risk assessment is the process of gathering information to make decisions regarding a person’s risk of perpetrating domestic violence. Most scholarship on the subject indicates that domestic violence risk assessments should be conducted by mental health professionals with specific training. See generally Tonia L. Nicholls, Michelle M. Pritchard, Kim A. Reeves & Edward Hilterman, Risk Assessment in Intimate Partner Violence: A Systematic Review of Contemporary Approaches, 4 Partner Abuse 76 (2013).
 See Court Responses to Domestic Violence, supra note 8, at 51:46.
 See Reed & Alder, supra note 20 (“Michigan assembled a task force to study lessons learned from the pandemic, and is seizing the chance to adapt courtroom technology for a ‘21st century justice system that is accessible, effective, transparent, efficient, and fair.’”).