FINAL REPORT OF THE

TASK FORCE ON GENDER FAIRNESS IN THE COURTS

EXECUTIVE SUMMARY

Introduction

        In December of 1993 the West Virginia Supreme Court of Appeals appointed a Task Force on Gender Fairness in the Courts. The impetus for the formation of the Task Force did not lie in a widespread perception or overwhelming evidence of gender fairness concerns in the West Virginia court system. Rather, the establishment of the Task Force was a recognition that the court system reflects society's larger culture, and that bias and prejudice based on gender is deeply rooted in the historical and social past of that culture. Its formation spoke to the fundamental requirement that the court, the forum to which citizens come for resolution of their claims of unfair treatment and discrimination, is itself free of bias. It emphasized the special role of the judiciary in our system of government, one which demands not only that justice be dispensed impartially but that the perception of impartiality be maintained.

        The appointment of the Task Force was also part of a larger national movement to address the issue of gender fairness in the legal system. To date, more than 40 state courts, the District of Columbia, Puerto Rico, and several federal courts have appointed task forces to address the issue of gender fairness in their judicial systems.

The Task Force was charged with the following mission:

    (1) To investigate the extent to which gender bias exists in the judicial branch and its effect upon the judicial process and participants, including judges, attorneys, litigants, witnesses, jurors, and court personnel;

    (2) To document instances of discrimination and bias in statutes, rules, practices, or conduct and make recommendations to end such discrimination; and,

    (3) To develop educational programs and other methods to heighten awareness and increase the sensitivity of court participants to the issue of gender fairness and to eliminate bias which may result in unequal treatment.

        The Task Force viewed its ultimate objective as essentially positive and not as an effort to single out or expose the conduct or attitudes of certain individuals or groups or call into question their decisions. The focus remained on raising awareness of gender-related issues and making specific recommendations for reform to enhance the quality of justice dispensed throughout the state.

        After referring to the results of the many state studies which had preceded it, the Task Force saw four potential effects of gender upon the judicial process. First, individuals could be denied rights or burdened with responsibilities solely on the basis of gender. Second, persons could be subject to stereotypes about the proper roles of or behavior of men and women that ignore their individual circumstances. Third, individuals could be treated differently on the basis of gender in situations in which gender should make no difference. Fourth, women or men as a group could be subject to a law, rule, policy, or practice which produces worse results for them than for the other group.

        The Task Force chose five substantive areas to investigate: the court as a work environment; domestic relations; domestic violence; criminal proceedings; and civil damage awards. Clearly, many areas which merited attention, such as employment law and juvenile justice, were not included in the study. The difficult decision as to which topics to address was based on several factors, including the potential impact or usefulness of study in a specific area, anecdotal evidence of problems in a specific area, the effectiveness of collecting information in a specific area, and the expertise of Task Force members. The Task Force was also mindful that its focus was the court system, and that, while the judicial system is intertwined with many other agencies and organizations, the Task Force's scope of review was appropriately limited to that arena.

        The study of gender fairness issues in the court system proved to be difficult and challenging; bias based on gender rarely appears in forms that are easily measured or readily assessed. The Task Force utilized multiple methods of investigation and sources of information in its review of each of the substantive areas. These included surveys of judicial officers, court employees, and attorneys; public hearings; solicitation of written submissions; interviews at domestic violence shelters; and meetings with court personnel. Since the mandate of the Task Force was to investigate gender fairness issues in relation to both males and females, specific efforts were made in the wording and format of questions on the surveys, in the publicity surrounding the public hearings, and in other research methods to insure that allegations of differential treatment from both men and women would be considered.

        The use of both quantitative and qualitative information allowed for findings and conclusions to be corroborated by different types of evidence. It also enhanced otherwise sterile statistical results by providing examples and illustrations from the perspective, and in the language of, those people who work in and use the court system. The Task Force did not attempt to determine the accuracy of claims and anecdotal evidence offered by litigants and others involved in the court system and recognized that such information could only be used in a very limited way to define the public's perception of the problem. Such information entered the analysis mainly to illustrate certain themes and describe how gender bias is perceived to have affected the outcome of cases or treatment in the court.

        Throughout its work and especially in crafting its recommendations, the Task Force recognized that in proposing remedies to any problem it is essential to understand the environment in which these proposals will be introduced. Failure to comprehend the static as well as the dynamic aspects of a system can result in recommendations for change that, while praiseworthy in themselves, do not address situational needs, set unrealistic goals, or place unattainable demands on a system. In order to interpret its findings and specifically tailor its recommendations to West Virginia, the Task Force believed it vital to articulate the background assumptions about the context in which the study and its recommendations are presented. These assumptions are set forth below:

•   The judicial officers, court employees and attorneys who practice in the courts of West Virginia are competent and, in the main, abide by or strive to abide by their respective professional codes of ethics.
  
• Although the results of this study are sometimes critical of judicial officers, court employees and members of the bar, the overwhelming majority of these individuals do a remarkable job serving the public or their clients on a daily basis. Many of these individuals are acutely aware of problems of bias and discrimination and show great sensitivity to these issues.
  
• Incidents of bias and discrimination are seldom intentional or malicious attempts to harm or offend, but rather are the result of inadvertent behavior, a lack of awareness, or a lack of sensitivity to the impact of certain conduct. In some instances, rapid social change has meant that behavior that was once acceptable is no longer acceptable; for example, courtly behavior directed at a woman professional is now perceived as more patronizing than polite. Whether the result of good intentions or ill will, however, the effect of biased conduct is the same. The emphasis, therefore, must be on the conduct and the means to correct it, not on the motivation for the conduct.
  
• West Virginia is a predominantly rural state, and the small scale, insularity, and shared history of many of the communities result in courts in which familiarity, tacit knowledge of players and parties, and comity are the driving forces. It is an environment of interconnection and accommodation, further enhanced by the relative homogeneity of the bench, bar, and court system personnel.
  
• As the visible leadership of the courts, judges play a key role in eliminating bias from the judicial system. Their treatment of people in the court, their decisions, and their intervention in the conduct of those around them sets the tone for the entire court.

• In their adversarial role, lawyers seek to maximize or minimize the effect of gender as appropriate to the "legitimate advocacy" of their client and/or cause.
  
• All system participants seek to promote their own self-interest through a complex power matrix which includes social class, age, race, ethnicity as well as gender differences.
  
•   No system participant will pursue a gender bias claim unless there is confidence that the system acknowledges the reality of gender bias, implicitly conveys that such behavior will not be tolerated, and provides protection for those who suffer its consequences.
  
• Resources for remedies are limited. Remedies most likely must flow through existing structures or come about as the result of a reallocation of existing resources.
  
• The filing of the Task Force's report on gender fairness cannot mark the end of the Supreme Court's concern with the issue but rather the beginning of efforts to respond. The tasks that remain are the ones that truly take the ongoing commitment and leadership of the Court.   
      
  

The Workplace Environment Of The Court

        Interactions in the court as a work environment have been an important focus of all gender bias task forces. Exchanges among judicial officers, court personnel, attorneys, litigants and witnesses may convey both overt and subtle messages about credibility and the judicial system's assessment of the validity and worth of certain claims and contributions. The forms that bias might take in the court work environment are many and varied; these forms range from being ignored, to inappropriate forms of address, to being the subject of hostile and insulting comments, to sexual harassment. While bias in interactions may often be unintentional, the result of tradition or inadvertence rather than a conscious attempt to undermine or degrade, the damage it can inflict cannot be overemphasized. This is especially true when bias is directed at an attorney in the presence of a client or a jury, a witness testifying in a trial, or a litigant proceeding without counsel in the court.

        The Task Force recognizes that there have been several positive efforts in the court system in recent years to address the issue of gender fairness in the work environment. Most notable among them was the adoption in 1993 of a revised Code of Judicial Conduct which includes provisions creating a specific ethical duty for judicial officers to refrain from engaging in gender-biased conduct and to prevent others from engaging in such conduct in the courtroom. By elevating the elimination of gender bias to an ethical duty and creating a duty to intervene, the new Code may help to prevent bias, increase reporting, and alleviate the "double-bind" situation which female attorneys and litigants experience when confronted with incidents of biased behavior. Also in 1993, the West Virginia Supreme Court adopted a sexual harassment policy and complaint procedure for all court personnel. Training on the issue of sexual harassment and the use of the policy and procedure was conducted for all judges, probation officers, circuit clerks and magistrate court clerical personnel in the last two years. A session on the issue of gender fairness was also included in a judicial education program soon after the formation of the Task Force. While acknowledging these efforts, the Task Force realizes that rules and policies only establish a foundation for change and are often slow to influence actual behavior. Given this and the findings of the other state task forces, the Task Force determined that it was essential to review the West Virginia court system for the existence and effects of gender bias in the treatment of individuals in the courtroom, court offices, and other professional settings.

Findings

        The Task Force found that gender bias is a substantive problem in the court work environment in that it is a significant, widely held perception that employees, litigants, and attorneys of different sexes are being treated differently. To the extent that people perceive differential treatment to be the result of a person's gender, they will believe that outcomes are different for litigants who seek justice, as well as for court employees, judicial officers and attorneys who seek to enjoy, enhance, and promote their livelihoods and careers. The reports of judges, attorneys, magistrates, and employees also indicate a significant level of sexual harassment within the court work environment. A separate analysis of the distribution of responses to the questions on bias in interactions and sexual harassment reveals that these findings are not based on a few aberrant response patterns; that is, they are not the result of a few isolated individuals or small groups of individuals reporting a large number and wide range of incidents.

        The Task Force also found that there is a common understanding about the character of behavior that constitutes gender bias in the court environment and a substantial basis of support for judicial officer intervention in situations involving gender bias or prejudice. This is important in that there is often a fear and reluctance on the part of the targets of such behavior to report or respond to incidents of bias in interactions because of the perceived negative effect such complaints may have on a client or a case.

        All elements of the judicial and legal system must recognize that gender biased behavior is unprofessional and detrimental to the fair administration of justice and take affirmative action to eliminate it.

Domestic Relations

        Both women and men suffer negative consequences in divorce cases: emotional hurt, loss of family identity and connection, and collapse of future plans and dreams are traumatic experiences for anyone, regardless of sex. Gender fairness issues arise, however, when other outcomes of divorce as well as custody and support proceedings have a disproportionately adverse impact on men or women. Primary among the negative consequences is a decline in the economic standing of one party in the aftermath. Clearly, if one party is left with a disproportionately large share of the cost of raising children and a disproportionately small share of the property and earning power of the marriage, there will be a decline in standard of living. While many historical, social and cultural factors contribute to the relative economic statuses of men versus women, the issue is whether the courts play a role in continuing and contributing to economic inequality by their actions in the area of domestic relations law.

        Another aspect of gender fairness in domestic relations cases is the extent to which traditional stereotypes pertaining to the true nature, appropriate behavior, and proper roles of men and women influence the decision-making process, as well as the treatment of litigants and the propensity of the court to respond. Our society has longstanding, culturally ingrained notions of what it is to be a "good" provider, father, mother, wife, husband, or family unit, and these may work to the advantage or disadvantage of both sexes in specific areas of family law. Closely related to this is the question of whether assumptions made by the court in addressing domestic issues accurately reflect the realities of men's and women's lives.

Findings

        The Task Force found that general practices with regard to the modification and enforcement of alimony and child support do not appear to vary significantly by sex of the obligor or obligee. In the case of alimony, however, there is some evidence that awards are sometimes governed by unrealistic assumptions. The perception of attorneys is that rehabilitative alimony is sometimes awarded when permanent maintenance is justified and, further, that it is unlikely that permanent maintenance will be awarded after rehabilitative maintenance has failed to make a party self-sufficient.

        Also, in the area of child support, attorneys report that it is somewhat more likely that child support will be waived when a father is awarded custody as opposed to a mother. They also report that it is somewhat more likely that child support will be awarded pursuant to the guidelines when the mother is awarded custody. Both the waiver of child support and the non-use of the guidelines appear to occur with some frequency when fathers are awarded custody. While waiver is clearly allowed under the law if in the best interest of the child or parties, the frequency and suggestion of gender bias in this area are of concern.

        The Task Force also found that attorneys report a tendency for the court to award child custody to the mother in situations where neither parent is found to be the primary caretaker. In addition, public hearing testimony and written submissions suggest that there is a perception among some litigants and attorneys that there is a general bias against men in child custody decisions. This perception may be strong enough and widespread enough to discourage fathers from seeking custody and to cause attorneys to advise their clients not to pursue custody.

       In the area of visitation, the Task force found that while survey responses from attorneys indicate that courts will deviate from the standard visitation schedules if the circumstances of the case dictate it, approximately a third of the family law masters report that the standard schedules never or rarely properly recognize the interests of the children. In addition, reports by survey respondents indicate that supervised visitation is used infrequently in cases involving spouse abuse. When there is evidence of child abuse, the perceived frequency of supervised visitation increases significantly, but is still not perceived as routine. This may be partially the result of the fact that there is a lack of safe and appropriate facilities for supervised visitation and inadequate procedures governing its use.

        As to the equitable distribution of property in divorce, the Task Force found that, while there was not widespread agreement with the idea that homemakers should be penalized or have their contribution to the marriage valued less than income producers, there is still some adherence to the belief that the income-producing spouse should get more than 50% of the property. In addition, there is some concern that pension plans are not being appropriately divided in marital property settlements.

        Finally, the Task Force found that awards of attorney fees in advance in domestic relations cases are reported to be relatively rare. The expectation that fees will not be awarded may contribute to a reluctance among attorneys to accept divorce cases where it is not clear that a party can afford representation. This is of concern since the complex issues involved in many domestic relations cases and the increasing sophistication of family law makes representation by competent counsel vital to achieving a just result.

Domestic Violence

        For several reasons, state courts frequently focus upon domestic violence in an attempt to address gender fairness issues. First, victims of domestic violence nationwide are disproportionately female; in 1994 in West Virginia, 90% of the victims of domestic violence were women. If the law is not appropriately implemented or enforced and inappropriate generalizations and stereotypes of men and women influence the handling of these cases, it will have a disproportionately negative impact on women. It should be noted, however, that even though male victims of domestic violence represent a small percentage of the cases coming before the court, they may also be subject to gender bias because their situation is at variance with the dominant assumptions and stereotypes of male behavior and appropriate sex roles.

         Second, domestic violence is socially constructed behavior which is supported and reinforced by cultural customs and traditions. There has been a history of acceptance of the physical punishment of wives by husbands and a tradition of considering domestic violence a "family" matter to be worked out by the parties. At worst, victims are seen as either deserving of the violence or lying about it. Thus, issues of credibility and beliefs about the nature and proper roles of women and men are at the core of domestic violence cases and may adversely impact the court's ability to provide victims the protection they need and the victims' willingness to seek relief.

        Domestic violence is also a focal concern because of the scope and depth of its impact on families and communities. The number of domestic violence complaints reported to law enforcement in West Virginia increased by almost 200% in the five year period, 1990 to 1994. There has also been a dramatic rise in the number of petitioners seeking protective orders filed in magistrate court during the same period, from slightly more than 5,000 in 1990 to almost 13,000 in 1994. Forty-six percent of the magistrates who responded to the Task Force survey ranked domestic violence as the most time consuming part of their caseload, and an additional 23% ranked it as the second most time consuming. The most alarming statistic, however, is that for the last five years, one-third of all homicides in West Virginia have been related to domestic violence. These trends are mirrored in similar statistics nationwide and underscore the fact that domestic violence is not just a court or criminal justice system problem, but a broader public health and public safety issue. This is clear without even recognizing the traumatic impact of violence in the home on children and the connection between witnessing violence as a child and continued involvement in a cycle of violence as an adult.

Findings

        The Task Force found that the current domestic violence law in West Virginia compares favorably with the provisions of the Model Code promulgated by the National Council of Juvenile and Family Court Judges and appears to provide an adequate framework for handling domestic violence cases. Training on the provisions of the domestic violence law appears to have created better understanding of many of the elements of the statute, and the courts are generally perceived as being responsive to requests for emergency protective orders. Still, problems occur with the interpretation, application and enforcement of the law.

        Reports indicate that some courts have policies at variance with statutory provisions. For instance, mutual orders of protection appear to be issued with some frequency, and it is not clear that they are always being issued appropriately, that is, with evidence of mutual abuse and both parties filing petitions. In some cases, provisions of protective orders, such as their length and levels of support awards, are not tailored to the circumstances of the case within the provisions of the law and fail to address the realities of the victims' lives.

      The Task Force also found that, while court personnel appear to recognize the seriousness of domestic violence, there is still insufficient awareness and understanding of its nature and the dynamics which underlie it. There is also evidence of adherence to beliefs and attitudes which "blame the victim" and call into question the credibility of claims of domestic violence. Victims who return to court multiple times may be especially affected by these attitudes. The result is a perception of the court as often being insensitive to the victims of domestic violence.

        The Task Force recognizes that magistrate court is spending an increasing amount of time on domestic violence cases and a frustration with "repeaters" and those who appear to be utilizing the protective order process for other than its intended purposes is understandable. The concern is that a focus on these types of situations, some of which are simply an inherent part of providing this legal remedy, may contribute to a hostile atmosphere for all victims seeking relief from the court.

        On the question of visitation in domestic violence cases, the Task Force found that it is reported to be rarely denied in domestic violence cases and seldom ordered to be supervised. Some victims and advocates perceive that insufficient attention is paid to the safety of the children and the victim when visitation is ordered.

        While the Task Force recognizes that the ability to proceed without counsel in domestic violence cases is an important and positive aspect of the law, it also acknowledges that there are a number of issues that may arise where a knowledge of the law and rights under the law may make a difference in whether a petitioner obtains adequate and appropriate relief. Advocates reported to the Task Force that they have greater access and credibility in the courts than in the past, and survey results show that they are considered essential in domestic violence cases by many court participants. However, there is still resistance and obstacles to their involvement in some areas, perhaps related to confusion about their role in the proceedings. In addition, advocates will always be limited In their participation since they are generally not lawyers and must be sensitive to the prohibition against the unauthorized practice of law.

        Finally, the Task Force found that cases involving domestic violence may, in their progress through the West Virginia court system, be before magistrate court, family law master court and/or circuit court. Any one court may not be aware of the history or related actions in a case. In addition, no one level is specifically resourced to handle the unique problems of domestic violence cases. Domestic violence is a complex problem which requires specifically trained judicial officers and court personnel, advocates and other support personnel to work with victims, sensitivity training for all personnel who come in contact with victims, and treatment and counseling programs.

Criminal Law

        In examining gender fairness issues in the area of criminal law, the Task Force was concerned with the treatment of men and women as defendants in the court as well as men and women as victims of crime. For defendants, differential treatment on the basis of gender may arise at any of the critical junctures of case processing. Are women and men charged differently, defended differently, sentenced differently, and/or incarcerated differently? For victims, the issue is that certain crimes overwhelmingly involve female victims; namely, sexual assault and domestic assault/battery. These crimes may not be viewed as seriously, prosecuted as vigorously, sentenced as severely, or generally handled in the same way as other crimes of violence. For both victims and defendants, attitudes and behavior based on stereotypes of the true natures and appropriate roles of men and women can exert significant influence on substantive outcomes.

Findings

        The Task Force found that the type of data required to address definitively whether gender makes a difference in the criminal justice process is not readily available in West Virginia. Men and women have different criminal involvements, and it would be essential to review the crimes committed, criminal histories, and other circumstances of offenders to determine what factors are being taken into account, at what stages, and in what manner. It is clear, however, that sentencing patterns are not perceived as being gender-neutral. The perception is that females tend to be sentenced less severely than males for similar crimes. This could be a function of the fact that women and men do not commit "similar" crimes; women offenders are more likely to engage in less serious, non-violent property crimes.

        There is a significant percentage of judges and, to a lesser extent, magistrates who believe that females with small children should receive lighter sentences. The level of agreement with lighter sentences for male caretakers is generally less. Questions of gender fairness occur, not because child care responsibility is taken into account, but when this factor is not applied in a gender-neutral way. There is little difference in the levels of agreement with lighter sentences for males or females who are financially supporting families.

        The Task Force also found that the majority of judges, magistrates and attorneys do not adhere to traditional gender stereotypes of the roles of men and women in criminal activity, their motivation or responsibility. Such stereotypes have not totally vanished, however, and remain an area of concern.

        The Task Force found that victim credibility is not perceived to be a major issue in sexual assault cases. While there is some evidence that a prior relationship between the parties is viewed as a factor which may call into question the seriousness of the crime or the validity of the allegation, the majority of judges and attorneys do not adhere to beliefs and stereotypes that "blame the victim" of sexual assault. Such beliefs and stereotypes have not totally vanished, however, and remain an area of concern.

        Finally, the Task Force found a perception that defense attorneys routinely appeal to gender stereotypes to discredit victims of sexual assault. While it is understandable that defense attorneys would try to take advantage of cultural biases in presenting a vigorous defense of their clients, defense strategies that involve bias should not go unexamined or unchallenged.

Civil Damage Awards

    Gender fairness issues may affect participants in the court system in a myriad of ways. One of the more rarely studied areas of concern is that of damage awards in civil cases. The question is whether the amount of damages awarded in civil actions depends on whether the plaintiff is male or female. Undervaluing the economic contribution of homemaking, underestimating the cost of child care, and underestimating lost earning capacity and work life expectancy are ways in which females may be disadvantaged in this area. It is difficult to isolate the effect of gender on award determinations, however, because most civil damage suits involve multiple factual variables.

Findings

        The Task Force found that there is a perception of gender-based inequities in civil damage awards. First, a perception exists among attorneys, but not judges, that men receive larger loss of consortium awards than do women. Second, a perception exists among attorneys that men receive higher amounts for their own lost earning capacity than do women. Judges, however, are split on this issue. Third, a perception exists among attorneys and judges that homemakers infrequently recover adequately for the economic value of their lost services.

        The Task Force also found that judges and attorneys are generally split on the questions of whether expert witnesses use gender-free bases for estimating lost earning capacity for plaintiffs, and whether they tend to under value homemaking and child care services. Despite the lack of consensus on these issues, this is an area of concern.

Conclusion

        The results of the West Virginia Task Force on Gender Fairness mirror those of all the other state and federal court task forces that have published their findings. While gender bias may be inflicted by members of either sex on members of either sex, women are harmed by gender bias more often and in more ways than men. The negative experiences of women span a broader range of substantive areas of the law and a wider scope of courtroom and professional interactions than do those of men. For men, gender fairness issues generally center on domestic relations cases, specifically in the area of child custody and visitation.

        The Task Force acknowledges that both men and women are subject to stereotypes. For women, however, the characterization as dependent, less credible, and less powerful is a negative image in the larger society and the legal system. The characterization of men as independent, credible and powerful, while in many ways constricting, is still a positive image. It works against men only in very limited areas, such as child custody, where the ability to also nurture and care -- qualities relegated by conventional wisdom to women -- are valued.

        The work of the Task Force has been met by both praise and criticism. Especially in the judicial system, where "fairness" is the quintessential characteristic, it is difficult and perhaps unsettling to call into question whether the reality always reflects the ideal. While the judicial system is often the subject of critical studies and a source of controversial initiatives, none have quite the personal impact as an examination of the role of gender. Gender issues are about identities and relationships that go beyond the courtroom and professional interactions and to the core of how people live and view their lives.

      Two themes that emerged from the critical commentary are worthy of brief discussion. First, a number of individuals from within and outside the court system opposed the expenditure of resources on the project, deeming it an unworthy topic or, at least, not a priority for the judicial system. The Task Force can only respond that fairness is a fundamental issue for the legal system and that decision-making and treatment of individuals within the system without regard to social or economic power is integral to the dispensation of justice.

        Second, some respondents characterized gender bias as an individual problem, one amenable to an individual solution and not an institutional response, a "just stand up for yourself" sort of situation. The Task Force can only respond that it is somewhat unrealistic to expect an attorney representing a client, a litigant awaiting a potentially life-changing court decision, or a court employee working at the "will-and-pleasure" of an employer to feel at ease registering a gender bias complaint. One of the objectives of the Task Force's work and final report is to create an atmosphere in which both females and males believe they can point out instances of gender bias without fear of retaliation, isolation, or minimization of their concerns.

        The Recommendations from each of the substantive areas studied by the Task Force on Gender Fairness are arranged below by the entity to which they are directed. Many of the Recommendations involve education and training of judicial officers and court personnel and are directed at the Administrative Office of the Supreme Court. These have been consolidated and are presented at the end of this section.

To The West Virginia Supreme Court of Appeals

To the Circuit Judges

To the West Virginia State Bar

To the West Virginia University College of Law

To the West Virginia Legislature