II. My Client
Lake County, Indiana is the second largest and most diverse county in Indiana. My students in the Domestic Violence (“DV”) clinic assist petitioners when they arrive in the clerk's office to petition for an order of protection. A.J. is an African American woman in her mid-thirties and a mother of two sons. A.J. had an order of protection in place, yet her ex-boyfriend, J.B., continued to harass her. J.B. is a twenty-five-year-old white male who had dated A.J. for one year. A.J. contacted me after I introduced myself to her months earlier about assistance. The DV clinic assisted A.J. with a motion for contempt based on J.B.'s continued contact and harassment, including death threats. The contempt hearing juxtaposed two legally constructed identities-- the court perceived A.J. as an African American single mother who had chosen to enter into a tumultuous relationship with J.B., a young, white male whose violent acts the court downplayed because of his racial and gender identity.
On direct examination, A.J. described the violence she endured during and after the relationship:
It was very abusive. He displayed--put a gun in my mouth, cocked it--like cocked the trigger back and he a number of times--25 times he had put guns to my chest, my rib cage, telling me he was going to chop my body up, pull my teeth out, throw me in the Calumet River and to tell my mother that; that that's where I'd be at.
He choked me until I passed out. And he said that he was going to chop up my body and pull my teeth out so no one would identify me--be able to identify me.
[H]e said he was going to kill us and displayed a gun.
J.B. countered A.J.'s violent portrayal by bolstering his credibility as a father, provider, and future husband:
I'm engaged. I'm supposed to be married before Christmas. I have another daughter on the way. I haven't been bothering with [A.J.]. You can check my phone records. You can do anything. I haven't bothered her. I'm not this . . . “menace to society” . . . I've been too busy with my kids. My baby's mother's been working full time, you know . . . I have been there everyday watching my kids like I'm supposed to.
J.B. appealed to the judge to empathize with him by highlighting their shared white, middle class identity, an identity that A.J. obviously did not share. The judge then engaged J.B. in a colloquy about his upcoming marriage plans:
Q: And you said you're engaged or you're getting married?
A: Yes, I am. I'm engaged.
Q: And your fiancée, where does she live?
A: [address omitted]
Q: When is the wedding set?
A: We were just coming down to the court office before Christmas. We were gonna pay the $60 to get married.
J.B. thus successfully turned the judge's attention away from his history of violent conduct. While the court conversed with J.B. about his personal life and future plans, it ignored the personhood of my client. The court never directly engaged in any comparable colloquy with A.J., leaving her personhood invisible to the court. A.J.'s experience exemplified how African American women are invisible in the court system and American society. As I attempted to redirect the court's attention to my client's concerns, the respondent basked in the court's attention because of his racial and gender identity--an identity that sought to appeal to the court's power. Cheryl Harris argues that, even though the power of whiteness is somewhat diminished by the amelioration of racial stratification, whiteness still has material significance. J.B. can still draw the court's attention to his whiteness; A.J. cannot. Harris describes this appeal as a claim of relative privilege against a person of color. J.B.'s father testified, which further bolstered his association with whiteness and therefore his legitimacy.
I cross-examined J.B. about his arrests for violation of the order of protection and battery to my client. I questioned J.B. about his gun-wielding death threats to A.J. and her family. J.B. claimed that each allegation was false, though some were documented and bolstered by eyewitness testimony. I produced A.J.'s cell phone records, which showed eighty-four phone calls to A.J. after the court granted the order of protection. J.B. claimed that A.J. had herself created the records of the phone calls by accessing his cell phone account via the Internet.
Before making a ruling, the judge addressed J.B.'s father about his employment and J.B.'s employment:
Q: Does your son live with you?
A: Yes. He also lives with the . . . he also stays where his two children are.
Q: Is he employed?
A: Not at this time. He is searching for a job.
The judge then addressed J.B. about whether evidence existed to meet the legal threshold to have his right to possess firearms prohibited.
Q: Do you have any weapons?
A: No sir. No, your Honor.
Q: Didn't you say you work at a hospital?
A: [name of hospital omitted], full time and [name of hospital omitted], part time.
The judge sought to further J.B.'s claim of legitimacy and white privilege by asking questions that comport with middle class values of employment and residency. As Cheryl Harris has shown, “jobs, entitlements, occupational licenses, contracts, subsidies, and indeed a whole host of intangibles” are all indicia of the bundle of rights known as whiteness. The judge's questions about J.B.'s class status, work status, marital plans, residence, etc. enabled the judge to find the commonalities he sought in order to justify his ruling.
The judge found J.B. had violated the order of protection; however, the court sought to equalize the blame for the violations:
THE COURT: We're here for two things today. One is a petition to modify the order of protection that was entered on February 20th, 2009 and the other is a petition for contempt; Plaintiff alleging that--or Petitioner alleging that the Respondent violated the protective order.
I'm gonna grant the petition to modify the protective order, first. And I'm gonna make the protective order mutual because I find that--
THE COURT REPORTER: We can't do it mutual.
THE COURT: Can't do it mutual?
THE COURT REPORTER: You can't. Not any longer.
THE COURT: Really? Okay.
The judge attempted to enforce a mutual order of protection against A.J. and J.B. The judge did not articulate his rationale for such a bizarre outcome, but I surmised that the judge sought to elevate the concerns of J.B. over those of my client, the actual victim of the abuse. The race and gender implication of the case became clear. The judge then extended the order of protection, suspended a seven-day jail term, and denied the request to prohibit J.B. from having weapons or surrendering weapons during the pendency of the order of protection. I inquired to the judge about the denial of the prohibition of firearms:
MS. BROWN: [A]re you denying the request for a prohibition of firearms and surrender of weapons?
THE COURT: Well, I haven't heard any evidence that he has any. So, yes.
Despite A.J.'s extensive testimony regarding J.B.'s repeated use of firearms to threaten her, the court did not find sufficient evidence to prohibit J.B. from possessing weapons. The judge weighed the credibility of A.J. versus J.B. and found J.B. more credible, despite pending criminal charges and eyewitness testimony of death threats and gun possession.
Ian Haney López finds that unconscious racism undergirds the current legal construction of race in two interrelated ways: “[f]irst it fosters the racially discriminatory misapplication of laws that themselves do not make racial distinctions[;] and second, it engenders the design and promulgation of facially neutral laws that have racially disparate effects.” A.J. was unable to obtain the full force of the order of protection because the court weighed her safety against the infringement of J.B.'s right to possess a weapon, and consequently sided with J.B. I asked A.J. on direct examination why J.B. should not have a gun, and she responded: “I think that he will kill me. In my heart, I believe that he will kill me.” A.J.'s fear was palpable yet the court declined to give her the additional protection she required. If the courts will not fully enforce orders of protection, domestic violence victims have no recourse.