Excerpted From: Jane K. Stoever, Removing the Bias of Criminal Convictions from Family Law, 35 Yale Journal of Law & Feminism 1 (2024) (405 Footnotes) (Full Document)

JaneKStoever.jpeg“I know your client better than you do. I've seen her RAP sheet,” said the family court judge as my Domestic Violence Clinic law students and I approached counsel's table with our client, R.H. This judge's statement at the outset of an evidentiary hearing on cross petitions for civil domestic violence restraining orders illustrates how arrests and convictions haunt litigants seeking safety for themselves and their children.

Consider what is visible, perceptible, and invisible.

A record of arrests and prosecutions (a “RAP sheet”) is visible to a judicial officer. The amount of time since criminal-legal system involvement is perceptible. Everything else about the person is invisible unless made known. The person's love of and care for their children or parents, their role in a family or community, their work ethic, their sobriety, the music and art they make, what they cook and who they cook for, and the many traumas they have survived are invisible to a judge or jury unless made explicit and revealed.

What happens when a legal system reduces a person to a RAP sheet and prioritizes that information in family court? And what if this legal system is rooted in racism; disproportionately arrests, charges, and sentences people of color; and increasingly criminalizes domestic violence survivors?

Nearly one-third of the adult population in America has a criminal record, and the Federal Bureau of Investigation adds more than ten thousand people to its criminal records database every day. While “America has a rap sheet,” the deep racial disparities of the criminal legal system mean that criminalization and the collateral consequences of convictions disproportionately harm Black Americans and abuse survivors, especially survivors of color.

During the past two decades, scholars and advocates have brought attention to the collateral consequences of criminal convictions and how the persistent obstacles of criminal histories aggravate poverty and racial disparities. Namely, research and advocacy have revealed the barriers and challenges criminal convictions pose to accessing housing, finding and keeping employment, qualifying for public benefits and student loans, becoming financially stable, securing legal immigration status, and voting and serving on juries. For example, the National Inventory of Collateral Consequences of Conviction focuses on “legal and regulatory sanctions and restrictions that limit or prohibit people with criminal records from accessing employment, occupational licensing, housing, voting, education, and other opportunities,” similar to the American Bar Association's compilation and focus areas. One area that has not been examined is family law.

Yet family is arguably what matters most to people. Whether securing custody or visitation of children, forming a family through adoption, or receiving safety protections from domestic violence, these legal determinations profoundly affect our relationships and lives.

Judges are currently provided with the full criminal histories of litigants appearing before them. Furthermore, multiple areas of family law allow for the consideration of criminal convictions, and some statutes explicitly require judges to examine all records of arrests and prosecutions, along with probation and parole status. These state statutes fail to instruct how the judicial officer should weigh and apply this information. With judicial access to full criminal histories in family court, litigants' histories are automatically before the judge when seeking protection from domestic violence or custody of their children, often unbeknownst to the parties who are unable to offer context and explanation. Even when only particular crimes are to be statutorily considered, the fact that the judge has viewed the entire record can bias or influence the judge. And some judges refuse explanations.

Returning to R.H.'s experience post-conviction, her ex-boyfriend successfully weaponized her RAP sheet against her. His lead argument in every court filing and evidentiary hearing was that R.H. is a child abuser who has a conviction for child endangerment. As background, R.H. is a Black woman who was arrested after leaving a department store where her sister, unbeknownst to her, had put clothing items in her baby stroller. At age eighteen and without advice of counsel, R.H. claimed responsibility because her sister lacked secure immigration status.

But the family court judge hearing the domestic violence cross petitions refused any explanation about the facts or circumstances around R.H.'s RAP sheet. Lawyers seek to make the perceptible and invisible visible and to reveal context and meaning, but the judge was angered that we would attempt an explanation. He instead read the penal code section on child endangerment into the record. At the conclusion of a multi-day hearing, the judge issued mutual orders. He found that our client had experienced sexual assault, gun violence, and physical abuse, including during pregnancy and while protected by a temporary restraining order, but also found that she had used foul language and possibly made a threat. Plus, the judge cited her child endangerment conviction as evidence that she was an abuser, which the appellate court deemed legal error.

Our client's charges of child endangerment and commercial burglary on these facts and her guilty plea to both charges without counsel reflect the racism and bias that pervade every aspect of the criminal legal system. Interrogating the use of convictions in family court is a racial justice issue because of the overwhelming racial disparity in arrests, prosecutions, convictions, and sentences, particularly for Black people. The implication of judicial reliance on criminal histories is especially acute for domestic violence survivors, who are often also parents and who are increasingly criminalized. Arrests and convictions then haunt people as they seek access to shelter, custody or visitation rights of their children, adoption of children for whom they are caring, and protection from domestic violence.

Analysis of race and the legal system traditionally concerns criminal justice, juvenile justice, and immigration, and has overlooked how racialized convictions and race-consciousness impact family law. This Article provides a comprehensive analysis of the policy benefits of reconsidering how criminal convictions are used in the family law context. This endeavor is particularly necessary because people of color have been and remain vulnerable to over-policing and over-criminalization, and are stigmatized by criminal histories that often lack validity and relevance to custody, caretaking, and domestic violence cases. This criminalization and the corresponding judicial reliance on convictions affect personal and familial relationships and, more broadly, rights and communities.

Part I explores how criminal convictions explicitly and implicitly affect domestic violence and family court proceedings. This Part features a fifty-state survey conducted for this Article of domestic violence, child custody, adoption and foster care, and evidence code statutes. Sections A, B, and C analyze the substantive statutory content and prevalence of reliance on criminal convictions in family law and domestic violence cases. Interference of past convictions with present safety and stability is substantial because domestic violence protection orders are associated with meaningful reductions in violence and harassment, and custodial orders are often necessary for children's security. Following the examination of statutes in Sections A to C, Section D explains how convictions prevent access to domestic violence advocacy and shelter services.

Part II addresses how the American criminal legal system is historically rooted in slavery, and how racism persists today through continued targeting of people of color, differential charging and sentencing, and presumptions of criminality. Section A provides examples of the range of ways civilians are funneled into the criminal legal system, including people of color being disproportionately surveilled and arrested through (1) traffic enforcement, (2) youth being sentenced as adults, (3) drug possession charges and convictions, (4) child support enforcement actions, (5) the criminalization of solicitation and sex work that disproportionately affects women of color, and (6) biases of predictive policing and artificial intelligence.

Part II.B. considers the increasing criminalization of abuse survivors and of parents. This section reveals how domestic violence mandatory arrest and prosecution policies have produced heightened criminalization of abuse survivors and critiques the criminalization of abuse victims who fail to cooperate with prosecution. This section also examines various justifications put forth by the state for its policing and criminalization of parents. Examples include the application of expansive definitions of abuse and neglect through “failure to protect” laws, which criminalize and remove children from non- violent parents who have “allowed” their children to be exposed to domestic violence.

Part III discusses the high frequency with which criminal defendants and family law or domestic violence litigants lack any legal representation. Despite the Sixth Amendment's guarantee of representation for defendants potentially facing incarceration, national research reveals that seventy percent “of criminal defendants plead guilty without counsel in proceedings that often last under three minutes.” Guilty pleas are then viewed by family court judges, but these convictions often lack validity and do not mean what they purport; convictions are often labels that don't accurately reflect underlying facts or circumstances and that have only prejudicial communicative value. The vast majority of family court litigants are also unrepresented, which affects case proceedings and outcomes, particularly when criminal histories are considered.

Part IV applies research on implicit bias to family court and domestic violence proceedings. During these bench hearings, presiding judges view RAP sheets that they cannot unsee, and research on implicit bias suggests that this knowledge influences case outcomes. Section A explores research on racialbias, and Section B describes gender bias data. This Part demonstrates that countering the stigma and bias attached to RAP sheets necessitates a significantly more restrained and tailored approach.

Part V makes normative recommendations about the role of convictions in family law and advises that whole RAP sheets no longer be included in case files or electronically accessible to judges. It proposes a statutory scheme for the type and timeframe of convictions that judges may view so that only highly relevant recent convictions for domestic violence, child abuse, firearm offenses, or violent felonies are before the court. Litigants then shall be given opportunities to provide context, explanation, and narratives of change and redemption. Part V additionally addresses potential objections to decreasing judicial reliance on criminal convictions in the family law context and situates the Article's recommendations alongside recently expanded expungement and vacatur laws. Without the remedy recommended in this Article, racialbias and the stigma of criminality will continue infecting family law cases, protection from domestic abuse, and caretaking relationships.

[. . .]

The anti-domestic violence movement of the 1970s controversially partnered with law enforcement and the criminal legal system in mandating criminal responses to domestic violence. Survivors of color warned against doing so, and decades have shown that our legal system cannot prosecute the way out of domestic violence.

The structural conditions of both family court and criminal court--as high-stakes venues featuring overwhelming caseloads, complex problems, hurried paces, and inadequate resources shortcuts. With courts and judges being furnished with litigants' criminal history information, the bias of and reliance on criminal histories in family court facilitates and perpetuates racialized harms.

R.H.'s case demonstrates how the title of a crime is a label divorced from explanatory facts and weaponized to detrimental ends, without allowing for context, relevance, or redemption. Anti-racist policymaking and reimagining our public safety systems require addressing the collateral consequences of convictions in family law, which haunt individuals, families, and communities, as R.H.'s RAP sheet stigmatized her and affected her ability to receive protection from domestic violence and custody of her child. Measures recommended in this Article can begin to remove and remedy family court's harmful reliance on criminal convictions.

Clinical Professor of Law and Director, Domestic Violence Clinic, University of California, Irvine School of Law. LL.M., Georgetown University Law Center; J.D., Harvard Law School; B.A., University of Kansas.