Judicial Corruption & Discrimination Against Women within the Court
Campaigns against judicial corruption usually concentrate on bribery and influence peddling, particularly in terms of “grand corruption”, while discounting the importance &/or prevalence of “petty” corruption, and the more subtle social forces at play. For this reason, combating judicial corruption normally focuses on promoting judicial independence as the solution; assuming that if ‘external’ factors are removed, giving actors a ‘free-hand’, everyone will diligently fulfill their respective roles.
Unfortunately, with judicial systems consistently demonstrating 70-90% negligence rates, this is a dangerous & erroneous assumption. And, one which assumes that corruption is only influenced by ‘exterior’ forces of which actors are consciously and cognitively aware, as well as a false assumption of competence & diligence of said actors. The biases and cognitive limitations of people at play here are explained in Perception & Misperception of Bias in Human Judgment by Emily Pronina:
People are not always accurate and objective at perceiving themselves, their circumstances & those around them. People’s perceptions can be biased by their beliefs, expectations & context, as well as by their needs, motives & desires. Such biases have important consequences. They can compromise the quality of human judgment & decision making, & they can cause misunderstanding & conflict…
Much of human judgment & action is driven by nonconsciousprocesses. People can form impressions of others, pursue goals, adopt attitudes & regulate their emotions – all without awareness, effort or intention. They claim freedom from racial bias & from gender bias, even in circumstances where they have shown these biases– at times even showing these biases more strongly the more objective they claim to be. When making judgments about who is ‘right’ in a conflict, people tend to side with the person who shares their ingroup identity but they again deny that bias.
And, since ‘cognitive biases’ & ‘selective perceptions’ produce the stereo-types in our societies (creating the most insidious & dangerous type of corruption & immorality), it is important to understand what role they play in people’s decision-making process. As Robert Kohls states in Survival for Overseas Living;
“Stereotypes are natural; they are one way people everywhere deal with things which are too complex to handle or about which they have inadequate information. Nancy Adler has said that due to the multiplicity of impulses that our brain is receiving as our sensory receptors are being flooded with stimuli, we have no choice but to ignore most of them in order to pay attention only to those few that we have learned to consider as most vital…another truism about stereotypes is that once formed in people’s minds, they outlive the partial truth that created them in the first place. They are also destructive in personal encounters because they are unfair and because they interfere with getting to know individuals as they really are…
To further complicate matters (in examining the responsibility of a government to protect victims of domestic violence, and how judicial corruption, might impede the fulfillment of that obligation) is that corruption in family courts is not considered ‘important’ by governments and the human rights community because they fail to appreciate the role that homemakers play in a society and socialization of our young. As stated in When Legal Worlds Overlap Human Rights, State & Non-State Law by International Council on Human Rights;
“family law [is seen] as ‘minor’… [creating] a distinction between ‘major’ &‘minor’ human rights.”
This attitude has significant implication in terms of the application of human rights law, showing to what extent the rights of women & children within the family are not recognized by societies & human rights advocates. None of the actors involved in the problems (or potential solutions) are recognizing the vital role of the homemaker in producing healthy, well-functioning, productive societies:
“…by her life within the home, woman gives to the State a support without which the common good cannot be achieved…women and the family often serve a crucial symbolic role in constructing group solidarity vis-à-vis society at large.” … Thus, control over family law, and by extension women’s rights, is important to the power of state and non-state actors alike….State recognition of demands for distinct family laws therefore needs to be seen…as a conscious political strategy that has profound human rights implications.” [With the family considered as the]“natural primary and fundamental unit group of Society” [and] “a moral institution possessing inalienable and imprescriptible rights…
So in recognition of the fact that the homemaker & family unit, and thereby family law, has a profound human rights implications for the society in question, it is important for human rights advocates to examine the prejudices & biases of judges, lawyers, & psico-social teams within family courts. The most common of which are the following:
- The belief that women lie and make false accusations of domestic violence in order to gain preferential treatment during divorce (an illogical premise since women who file complaints for abuse (against them or their children) receive reprisals and detrimental treatment during divorce proceedings).
- The belief that women (particularly homemakers) are hysterical, stupid, don’t understand complex concepts ‘litigation/legal principles’ etc. As stated in (Coltrane 1998) “[they are] weak, lacked strength, their brains [are] too small…”
- The belief that homemakers “don’t do anything” and live-off the hard-work of their husbands. (This is the main reason that lawyers are failing to adequately reclaim common property assets during divorce, and judges are refusing to award alimony to women commensurate with contribution to home and family. As a consequence homemakers are left destitute by courts and denied access to common property assets during the entire process, effectively hampering their ability to defend themselves within the courts.)
In examining the case-study of Spain (see Nov. ‘13 & Jan. ‘14 Family Courts in Crisis newsletters) – judges award alimony in 11.4% of divorces with reported sums at €500/month (below poverty level) after an average of 15 years of matrimony with the average age of women, 42 years old. Many of these women who have not developed careers and dedicated themselves to raising children & assisting husbands in developing their careers (and elevated salary levels) are left penniless, and thrown into labor-markets where gender & age discrimination is rampant (with unemployment rates of 26.7%) condemning them to a life of extreme poverty. Basically, the courts are relegating the status of the homemaker to one of servitude with no recognition of her contribution to the family or society, & ‘workers’ rights (“safe conditions,” compensation, or pension, etc.) – in violation of Convention of Civil & Political Rights, & Intl. Covenant on Economic, Social & Cultural Rights)
Other social factors, influencing the attitudes, behavior & decisions of judicial actors are:
- Historically victims of domestic violence have been “silenced” by the community in order to protect the “honor” of the abuser (using tactics such as making victims feel “ashamed” & “responsible”, talking about abuse is not “polite” conversation, social ostracisation, restricting access to assets & funds, etc. Lawyers are (illegally) utilizing these same tactics in silencing victims (their clients); simply because this is how everyone has always handled the situation – common custom & habits. – Habits are hard to break, and nowhere is this more evident than in family courts…
- On average two-thirds of populations suffer from “abusive personality” disorders, with abusers more likely to seek jobs which put them in positions of authority and facilitate their access to victims. Itshould be noted that the tactics used by lawyers, judges & court psico-social teams are those found in the ‘Power & Control’ – Duluth Wheel Model. Unfortunately, these tactics have become so consolidated & integrated into court customs & procedures, they are widely accepted as ‘standard operating procedures’. In order to ‘break the cycle of abuse’ in the courts, these procedures must be draconically challenged & eradicated. But first their existence must be recognized!
- Lawyers, judges & court psico-social professionals are in positions where they can easily & readily abuse their powers over women. – This is the reason that accountability of judicial actors by regulatory agencies is of the utmost importance in assuring transparency & accountability of family courts.
- There exists a false assumption that women lawyers, judges, etc. will automatically defend the rights of victims, when in fact these women are as likely, if not more likely, to discriminate against victims or cover-up abuse. As stated in the UN report In-depth study on all forms of violence against women: “Women also commit acts of violence. While women commit a small proportion of intimate partner violence, they are involved to a greater degree in the perpetration of harmful traditional practices”
- There exists a high level of nepotism, “old-school” networks, and antiquated “code of honor” traditions amongst lawyers (and other judicial actors) which encourage (if not obligate) the covering-up for “indiscretions” (negligence, malpractice, etc.) of colleagues
- Divorce courts are a huge money-making industry, with little incentive for lawyers to develop arguments and jurisprudence advancing the rights of women within the family or marriage. Yet, jurisprudence (supreme/constitutional court decisions) in the past few decades, regarding domestic abuse and family law, has made many inroads in advancing father’s rights and ‘abusers rights’, with little opposition/argumentation from family law lawyers. (This is an area which needs serious examination, and work, from a trans-national pool of legal experts in family law, in conjunction with human, civil and women’s rights lawyers.)
- Women’s rights movements have concentrated almost exclusively on women’s rights within the work-force and reproductive rights in the past decades – but not the home or marriage. This has left a “vacuum,” and women have not gained any rights within the family in the past 100 years, simply because no one is “requesting/demanding/arguing for” those rights in the courts. – Again, a simple matter of ‘customs’ and breaking with ‘customs’ – one of the hardest thing to do in a society
- Feminists & women’s rights activists have traditionally considered homemaker’s role (house-keeping, child-raising, supporting husband’s career, even marriage itself) as ‘shackles of oppression’, so they have little incentive or desire to promote legal rights of homemaker in the courts or elsewhere
- There is no effective over-sight on family courts, with gag orders common when victims attempt to attract media attention; providing the opportunity for corruption in family courts to develop & thrive – And, why media attention is so vital to bringing changes!
- There is an extremely high correlation between abusers and criminal activity. Organized crime & white collar criminals develop extensive networks within judicial systems, and utilize these during divorce proceedings & DV cases. Some of the tactics utilized (and typical of the problems seen in family courts) are enumerated The Global Corruption Report: Corruption in the Judiciary (2007), Transparency International, and are as follows:
- Judicial civil servants manipulate the dates of hearings in order to favor one party over another
- Judge make inexact summary-decision / distort testimonies of witnesses before handing down a sentence
- Judges refuse the introduction of evidence or testimonies in order to favor one party over another
- Civil servants ―lose a document
- Prosecutors block avenue of legal reparation
- [Noting that] corruption is more likely in judicial procedure where journalist do not have free access to all fact or lack of activist groups who push for reform.
Examining the Links Between Organized Crime and Corruption by Center for The Study of Democracy, further exposes the influence white-collar criminals/abusers have at their disposition, recalling that abuse is about power & control;
“white-collar criminals exert more pressure on the judiciary, as they have easier access to social networks that facilitate corruption…organised crime uses social, professional & political networks to influence the judiciary… Certain type of companies, such as law firms are in high demand by organised crime as middlemen…Attorneys have a significant competitive advantage over all other intermediaries – they can provide services through the whole institutional chain, starting with police & going all the way to prosecutors and even judges…‘Collusion’ is often a more appropriate way of describing professionals‘ corrupt behaviour, including that of lawyers…
The factors which influence corruption in family courts, their failure to protect victims, and failure to recognize the rights of women and children involve a large range of factors, which must be examined from an intersectional approach by women’s & human rights organizations, as well as regulatory agencies when evaluating the actuation of judicial actors. Additionally, prosecutorial agencies must take a proactive role, and a hard stance, when investigating and evaluating criminal negligence, with severe sanctions & reparations to victims for monetary loss as well as personal suffering.
Unfortunately, regulatory agencies, beginning with Bar & Judge Associations are not proactively investigating cases where victims have been denied protection and/or rights violated, justifying their refusal to investigate under the erroneous contention that it violates the judicial independence of lawyers and judges. (A full examination of judicial independence vs. accountability/transparency, & their inter-dependence rather than mutual exclusivity, will be covered in upcoming FCC newsletters.)
In the case of Bar Associations in the USA, the sanction rate of complaints received is 2 – 2½ % (with legal malpractice & negligence rates in the USA at an est. 70-75%). And, the Bar Association of Madrid has contended, in writing, that it is the “right of a lawyer to violation their client’s rights under the principle of judicial independence”.
The failure of government regulatory agencies (arguing that ALL agencies which fulfill a public function or authority are ‘government agencies’) to fulfill their obligation to assure transparency and accountability of those they license, regulate, and sanction is one of the principle and the root causes of the failure of family courts to protect & defend the rights of victims.
Sadly, lack of ‘good governance’ of regulatory agencies is not found only in those who supervise court systems, but is rampant in all sectors of societies and industries, and in countries across the globe (as the current global economic crisis is testimony). In the USA for example, we see it in the banking/financial markets and the SEC; the environment and the EPA; health-care systems and the HHS, FDA, AMA & APA, etc.; the list goes on. But, paradoxically political campaigns, promises and rhetoric are never directed at reforming these systems, promoting ‘good governance’, or eradicating rampant abuses of power and corruption within them. – Until and unless political leaders are willing (and able) to address these issues and problems, the world will continue on its current spiraling descent.
A perfection of means and confusion of aims, is the underlying problem. This is the true challenge of the 21st century, and will determine if humanity survives the 22nd century.
There are those who believe destiny rests at the feet of the gods, but the truth is that it confronts the conscious of man with a burning challenge. ̶ Eduardo Hughes Galeano
 a pattern of deviation in judgment, whereby inferences about other people & situations may be drawn in an illogical fashion, leading to perceptual distortion, inaccurate judgment, illogical interpretation, or what is broadly called irrationality
 the process by which individuals perceive what they want while ignoring opposing viewpoints