Volume 13, Issue 1

Fall 2001

Senior Lawyer News

 

Gender Bias in the Courts of the Commonwealth

Acting on the request of the Judicial Council in the fall of 1998, the Chief Justice appointed a Task Force on gender bias, comprised of representatives from academia, the bar, the judiciary, the legislature, court administration, business, advocacy groups and the community. The task force was directed to:

• Research and identify areas of gender bias in Virginia court system;
  
  
• Study the overall process within the court system to handle allegations of misconduct based on gender;
  
  
• Recommend ways to raise the consciousness and sensitivity of judges, lawyers and court personnel to gender issues in the court system; and
  
  
• Recommend training packages for each segment of the court system in order to institutionalize a gender-fairness approach on all issues.

In October 2000 the task force submitted its final report to the Judicial Council of Virginia and to Chief Justice Carrico, chair. This article summarizes the salient conclusions reached by the task force.

The 287 page task force report identifies a significant number of areas within the judicial system that are susceptible to gender bias, both overt and subtle, and suggests steps to lessen or eliminate it.

Gender bias is defined in the report as: Predisposition or tendency to think about or behave toward people on the basis of their sex. It is reflected in attitudes and behaviors based on stereotypical beliefs about the sexes rather than an independent evaluation of each individual’s abilities and experiences. If an outcome more often adversely affects one gender versus another, for whatever reason, that too may be considered as gender bias. Gender bias may be male or female oriented.

Significantly, the report relates that a decision-maker may engage in biased behavior even though the decision maker is unaware of the operation of such bias, and that to counter bias, conscious or unconscious, individuals must be alert to their potential cognitive flaws. Ongoing education is recommended as essential to reduce or neutralize the effects of gender bias.

The study is directed only to areas where the judicial branch has direct ability to implement or effect changes, and, thus, it does not address gender bias in law firms, law schools, correctional institutions, or law enforcement agencies.

After reviewing other jurisdictions; reports in gender fairness and bias, the task force developed the questions listed below:

• Do men and women have different access to the courts for domestic matters?
• Are child support awards given to the custodial parent sufficient and enforced?
• Do custody awards and visitation decisions differ between mother and fathers? If so, is the difference based on gender?
• Does Virginia’s current decision-making process for spousal support and equitable distribution lead to fair division of property along gender lines?
• What do judges and court staffs know about the dynamics of domestic violence/family abuse and how can they prevent and intervene effectively?
• Do courts treat sexual offenses seriously and with sensitivity?
• Are stalking laws unfair to women, who are more often likely to be victims?
• Do courts treat men and women differently in civil actions?
• Do men and women receive and serve sentences that differ based on gender in criminal cases?
• Do judges and court employees treat attorneys, witnesses, jurors, and litigants differently by gender in a way that demeans the justice system or affects the outcome of a case?
• Does the court environment affect female and male employees differently?
• Does the environment outside the courtroom affect female and male court users differently?
• Does the court’s physical layout serve or affect men and women differently; does it affect the administration of justice?

The task force concluded that gender bias still exists in the courtrooms and courthouses in Virginia, but it is more subtle today that in the past.

The following are some of the key conclusions reached by the task force:

Gender Bias in the Courtroom

• Male attorneys, judges, bailiffs, law enforcement personnel, and court personnel treat female attorneys differently than they treat male attorneys.

Sexual Assault Cases

• Providers of services to sexual assault victims believe that some judges do not handle sexual assault cases properly and believe that the Virginia rape shield law is inadequate.
• Some courts do not treat acquaintance rape and stranger rape the same.

Domestic Violence

• Attorneys and service providers perceive that some judges do not understand the dynamics of family abuse.
• In dealing with domestic matters, judges may be unaware of relevant charges of domestic abuse because of the bifurcated court system or lack of coordinated record keeping that would provide the necessary information.
• Some courts may not consider allegations or proof of abuse in custody awards and visitation orders.
• Some judges may not allow full development of accusations of violence in custody matters.

Access to Legal Services in Divorce

• The cost of litigation creates barriers in post decree actions for economically dependent spouses.
• Courts do not regularly grant motions for an award of pendente lite atorney fees, for access to material assets for one party if marital assets are being used to fund an attorney for the other party.
• Courts appear reluctant to award preliminary attorney’s fees and costs, which may limit access for economically dependent spouses.
• Legal aid programs provide services for some family law matters. However, limitations, both financial and programmatic, combined with lack of pro bono services, create a barrier to access to the courts for family law matters.

Child Custody and Visitation

• Decisions in custody matters may reflect gender bias.

Child Support Award

• The Virginia Child Support Shared Custody Guidelines create disincentives for custodial parents to allow more than 90 days visitation per year.
• Non-custodial parents believe that the child support guidelines are unfair due to gender bias.

Sentencing

• Judges are limited to their alternative sentencing option for women because there are fewer alternative programs for women than men.

Environment for Court Employees

• Occupational clustering of women in lower paying positions exist among court system personnel.
• Male employees perceive disparate treatment when they are in the minority,
• The existence of sexual harassment policies among circuit courts was inconsistent; where they existed both circuit court and district court employees were unaware of them.
• Female employees believe that they have unequal promotional opportunities and that such inequities are based on gender.
• Female magistrates reported that the male magistrates and law enforcement personnel exhibit biased behavior towards them.

Courthouse Facilities

• Courthouses do not have accommodations for children or childcare facilities.
• Security measures are often inadequate or inappropriately applied to women.
• Virginia courthouses lack sufficient restrooms for female employees.

Judicial Appointments

• Women judges are under represented at the trial court level.
• The judicial selection process includes inappropriate questions based on gender.
• Women are under represented as substitute judges.
• Women are under represented as Commissioners of Account.

The task force made a number of recommendations regarding each of the findings to alleviate or ameliorate the conclusions reached. The limited space here will not permit discussion of the specific recommendations. Some of the recommendations require action by the General Assembly, and some by the Virginia Criminal Sentencing Commission and Court personnel. Other recommendations require educational programs and greater sensitivity of judges, court officials, law enforcement and members of the Bar.

The task force recognized that gender bias in the courts is not a matter that reports and recommendations can address and then lay aside as a completed task. Thus, the task force recommended that an entity be created and charged with:

It is up to all members of the Bar to speak out, and act whenever possible, to improve the judicial system and to make it more fair and impartial. Gender bias is a blight. It withers hopes and ambition, impairs growth, and halts full utilization of human resources. Gender bias cannot be allowed to exist in our judicial system. It must be promptly and completely eliminated in all forms.

Clarence M. Dunnaville, Jr.

Hill, Tucker & Marsh, P.C.

Richmond, VA

back to SLC home page

back to newsletter index