COVID-19, Domestic Violence and the Forgotten Home Term
8.11.2020
As the nation remains focused on the rising number of COVID-19 cases, one statistic has been largely overlooked – the rise in domestic violence cases brought on, to a large degree, by the stress of mandatory stay-at-home orders. While the surge is cause for concern, it is not unprecedented. At the end of World War II there was a similar surge, though for reasons far different from today. Back then the violence was attributed to abrupt reunification of long disrupted relationships. There is another difference as well. Today the victims of domestic violence can seek help from a court system that is much more streamlined and attuned to their needs than it was in 1945 – before, that is, one enlightened judge saw the need for reform and took action.
In 1945, the New York City Magistrate’s Court, the current Criminal Court’s predecessor tribunal, maintained jurisdiction over misdemeanor and offense cases, including third degree assault and disorderly conduct, and issued more than 10,000 summonses in cases alleging domestic violence or other family disputes.[1] In response, the court administratively established a new division, designated as the Home Term.[2] Originally limited to Manhattan, Home Term jurisdiction was expanded citywide in 1951. The articulated purpose, unique in that era, was “to focus on the offender and his family instead of on the offense itself.”[3]
To implement and preside at the newly established term, the court appointed a remarkable woman, Anna Moscowitz Kross. Magistrate Kross had obtained a law degree in 1910, served as the first woman New York City Assistant Corporation Counsel, and in 1934 was appointed Magistrate by then Mayor John O’ Brien.[4] Judge Kross presided until 1957, when she was appointed to the position of New York City Commissioner of Corrections.[5] During her tenure the adjudication and disposition of domestic violence cases was revolutionized.
The initial Anna Kross innovation was the physical removal of Home Term from the fortress-like Manhattan criminal courts building. Located first at 300 Mulberry Street and subsequently at 80 Lafayette Street, Home Term was designed as a family residence or friendly office suite. Waiting rooms resembled a family living room. The hardware and trappings of a typical criminal court were absent. Instead, the “courtroom” was a conference room, where the unelevated and unrobed judge presided at the head of a conference table. The parties, a probation officer, social workers and the judge discussed and attempted to informally resolve most cases (lawyers were rarely present).[6] Cases were “adjusted” or otherwise resolved by employing ameliorative diversional techniques. (Trials, however infrequent, were presumably held in a formal courtroom.) Conferences were private; the public was excluded.[7]
The parties had initially met with a specially trained probation officer; the large majority were “adjusted” without the need for a formal adjudication (relatively few cases, presumably the most egregious, were prosecuted initially, bypassing the informal phase). Parties were frequently referred to secular or religious social service agencies, perhaps after issuance of an order of protection. Magistrate’s Court did not possess felony jurisdiction. Hence the charges were predominantly third degree assault, disorderly conduct or harassment. Felony cases, including first and second degree assault, continued to be prosecuted formally in the higher courts.
Home Term was staffed by 16 probation officers, who conducted “adjustment” sessions, investigated defendants, and supervised respondents who were placed on probation.[8] Another Kross innovation was the establishment of a Home Term nursery, an outdoor playground and a catered food service for children. Domestic violence victims could thereby bring their children to court, where they would be accommodated and nourished while the case was informally resolved or scheduled for a hearing. An in-house mental health clinic staffed in the early years by a full-time psychiatrist, a psychologist, and four social work graduate students formed an integral part of the system. Defendants could be evaluated and, when necessary, referred to outpatient services or committed to the Bellevue Hospital psychiatric prison unit.[9] Home Term also established an alcoholic clinic, where a significant number of domestic violence defendants who were alcoholic could be treated.[10] In sum, Home Term employed an interdisciplinary approach in resolving domestic violence cases. The breadth of diagnostic and treatment services, unique in the mid-20th century, was funded by New York City and a plethora of individual, governmental and private agency grants. (Judge Kross was apparently an adept grant writer.)
There was no detail that escaped the judge. She even secured a loan of paintings from the Metropolitan Museum of Art and the Museum of Modern Art to decorate the family-style Home Term environment. (How many criminal court buildings are adorned with art museum paintings?)[11]
Magistrate’s Court, including Home Term, maintained full criminal jurisdiction. Hence defendants could be incarcerated, a power evoked sparingly, though it was available. The authority of the court to imprison was apparently underscored throughout the proceedings, a policy that has been described as a “carrot and stick” approach.[12] The objective was to provide mediation, remediation and treatment alternatives, reserving incarceration for egregious assaults or violations of protective court orders.
However progressive, a deficiency of Home Term was its central location. Convenient to Manhattan and perhaps Brooklyn residents, the central term was very inconvenient to many city neighborhoods. A perhaps more significant problem was the absence of family law jurisdiction. Domestic violence victims frequently need spousal support, child support and custody orders for their children. Many seek paternity orders. The hapless victim petitioner might well face the challenge of litigating in several different geographically atomized courts, including the Magistrate’s Court, the Domestic Relations Court, the Court of Special Sessions (which held paternity jurisdiction) and the Supreme Court. By 1960 the irrational New York court system had been heavily criticized. Family law advocates lobbied extensively for a unified Family Court, one that would enable a petitioner, including a domestic violence victim, to receive comprehensive remedies in one tribunal.[13]
Largely for that reason, the New York State Family Court was established in 1961. Home Term was an obvious candidate for inclusion and became the model for Family Court Act Article 8, with the former criminal provisions renamed as civil “Family Offense” proceedings.
By then, Magistrate Kross was the New York City Commissioner of Corrections, although Home Term continued as a unique interdisciplinary tribunal housed at an “off court” location. The original Family Court Act granted the court extensive domestic violence jurisdiction: “The Family Court has exclusive original jurisdiction over any proceeding concerning disorderly conduct or an assault between spouses or between parent and child or between members of the same family or household.”[14] Jurisdiction was accordingly extended to felony cases, such as first degree assault, an extremely violent felony which should never have been decriminalized (the crime was removed from Article 8 by a subsequent amendment).
Stripped of criminal jurisdiction, the Family Court lost the Magistrate’s “stick,” although it was granted authority to transfer cases to the appropriate criminal court (original F.C.A. Section 814). Significantly, when adjudicating a family offense petition, the family court was authorized to direct the filing of a neglect, a spousal or child support, or a paternity petition (original Section 815, now Section 817). The provision thereby addressed the multiple legal needs of domestic violence victims.
Home Term never distinguished between married and unmarried parties. Magistrate’s Court maintained jurisdiction over all misdemeanor cases, regardless of the parties’ relationship. Hence the court could adjudicate domestic violence cases involving complaints by married persons, cohabitants or romantically involved couples. It was hence logical to statutorily encompass proceedings “between spouses or between parent and child or between members of the same family or household,” i.e. presumably between unmarried cohabitants who reside in the same household. The probably intended interpretation was nevertheless rejected by the Court of Appeals in 1970, People v. Allen, 27 N.Y. 2d 108(1970):
In sum, then, we held that the “family” and “household” categories’ of Section 812 of the Family Court Act confer jurisdiction on the Family Court over disputes arising in relationships only where there is legal interdependence, either through a solemnized marriage or a recognized common law union.[15]
Certainly making available conciliation proceedings . . . to such informal and illicit relationships as those before us, would clearly be contrary to public policy . . . [16]
Allen precluded relief for the growing number of people who cohabited, including same-gender relationships (same-gender partners could not then marry). The restriction continued until 2008, when the legislature expanded Family Offense jurisdiction to include parties who “are or have been in an intimate relationship. . . .” It is doubtful that the legislature realized it had restored the historic Home Term jurisdiction.
Although legislatively abolished in 1962, Home Term, renamed the Family Court “Family Offense Term,” continued as though it had never left the old Magistrate’s Court.
When this writer initially became involved in 1968 (prior to the Allen decision), the Term was housed at informal leased quarters far removed from the Family Court. The comprehensive probation element remained intact, social services were robust, by then the expanded Home Term mental health clinic was well staffed, and the emphasis in favor of adjustment, remediation and mediation remained prevalent. Disturbingly, however, the mostly non-represented victims could not obtain spousal support, child support, child custody or filiation orders unless they prosecuted multiple simultaneous proceedings in other terms of the Family Court located throughout the City. As noted in a 1969 report, family offenses had not yet been integrated into the Family Court; ergo, one of the primary purposes of the court’s establishment had not been achieved.[17]
Integration was finally achieved in the early 1970s, a decade following the Family Court’s establishment. The Family Offense Term was merged into a reorganized court with “all purpose” parts, and a policy of “one family, one judge.” (Home Term was not the only isolated branch of the court.) In one courtroom, a family offense petition could be determined simultaneously with applications for child custody, child support and spousal support. The former Home Term mental health clinic was integrated into a much larger Family Court clinic, augmented by federal and local grants. One goal was to partially replicate Home Term’s successful mental health and remediation approach throughout the court.
The downside of integration was the loss of expertise within the Home Term context. Specialized probation, social work, family counseling and alcoholism services were no longer available. Domestic violence became one relatively minor aspect of a larger court (at least in New York City). Home Term no longer existed.
One generation later, the contemporary domestic violence paradigm evolved. In many ways, the present system is superior to Home Term. The statutory framework has been strengthened, victims are better protected and integrated domestic violence parts have developed an expertise that was largely unavailable in the earlier Family Court. Further, whereas Home Term was limited to New York City, domestic violence policies are now implemented statewide. Perhaps most significantly, law enforcement has been strengthened. Home Term could not address police arrest practices and policies, whereas we now focus on that essential aspect. Petitioners and respondents are legally represented. The protection of victims is paramount, and the system has made significant progress toward that objective.
Home Term nevertheless offers important insights. Anna Kross’s emphasis on informality, social service remedies, mental health expertise and the presumption that cases, other than the most egregious, could and should be resolved without formal judicial involvement may be advantageous compared with the current emphasis on judicial authority and orders of protection. (The Magistrate Court’s limitation to misdemeanor and offense cases militated a more benign approach). The Home Term emphasis on family needs, including those of the defendant, has been largely lost. As noted by one contemporary Home Term commentator, “today’s domestic violence courts focus almost exclusively on victim safety and defendant accountability . . . they are not particularly interested in offering help to alleged offenders.”[18] The holistic approach pioneered by Magistrate Kross surely merits study, and at least partial resurrection. We may attain a more balanced approach by analyzing the “Home Term” chapter of judicial history.
Perhaps the most notable fact is that Home Term existed and achieved considerable success. Thanks to Anna Kross, the lengthy historic era of domestic abuse neglect was not monolithic. One amazing innovator, assisted by several individuals and organizations, transformed the system in one city for several decades.
[1] Walter Gellhom, Children and Families in the Courts of New York City, Dodd Mead & Co. 1954 at p. 217.
[2] Id. at 217-218.
[3] Id. at 219.
[4] Mae C. Quinn, Anna Moscowitz Kross and the Home Term Part: A Second Look at the Nation’s First Criminal Domestic Violence Court, 41 Akron L. Rev. 33 (2008).
[5] Other magistrates were also assigned temporarily to Home Term parts.
[6] Gellhom, supra note 1 at 221.
[7] Id.
[8]Gellhom, supra note l at 225.
[9] Quinn, supra note 4 at 750.
[10]Gellhom, supra note 1 at 224.
[11]Id. at 220-221.
[12] Quinn, supra note 4 at 741.
[13] See, for example, Gellhom, supra note 1 at 282–89.
[14] Original F.C.A. Section 812.
[15] 27 N.Y.2d at 113.
[16] Id. at 112.
[17] A study of the Family Court of the State of New York within the city of New York . . . , the Officers of the Directors of Administration of the courts, First and Second Judicial Departments, p. 16 (1969).
[18] Quinn, supra note 4 at 738.
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