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Intimate Partner Sexual Abuse: Adjudicating this Hidden Dimension of Domestic Violence Cases

National Judicial Education Program*


*A Project of Legal Momentum in cooperation with the National Association of Women Judges

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If a partner is controlling, abusive, and violent in the kitchen, the living room, and in public, why would he stop the abuse at the bedroom door?
-Hon. Jeffrey Kremers, Chief Judge, First Judicial Administrative District, Milwaukee, WI

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Graham Barnes
Team Leader Training and Resources The Battered Womens Justice Project Minneapolis, Minnesota

Until I had worked with men who batter for three to five years, I had no idea that the level of sexual assault within domestic violence relationships was so high. I had to hear these stories from the facilitators of the womens partner group before I realized that most of the women partners are also being sexually assaulted.
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"[M]arital rapeshould be treated differently and more severely than similar crimes committed by strangers. As a result of its unique relation to personal life, sexual assault is far more likely to be repeated when it is committed by partners and almost always occurs amid other forms of violence, intimidation, and control. The level of unfreedom, subordination, dependence, and betrayal associated with marital rape has no counterpart in public life.
- Professor Evan Stark, COERCIVE CONTROL (2007), at 388.

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A physically-abused woman also subjected to forced sex is over 7 times more likely than other abused women to be killed.*

Source:*Finding from Professor Jacquelyn Campbell, Assessing Risk Factors for Intimate Partner Homicides, Vol. 250 NIJ JOURNAL 15 (2003)

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There was no greater divergence in what victims and perpetrators reported than in the area of sexual violence. If we are to believe the killers, none of them had ever been sexually violent or even coercive to the women they killedThe victims of abuse painted a very different picture. Nearly three-fourths of the women [who survived a near-murder] said their abusive partners had raped them.
David Adams, WHY DO THEY KILL? (2007) at 171-172

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It is important to be knowledgeable about sexual abuse in the domestic violence context in order to understand it as:

An aspect of domestic violence An assertion of power and control

A critical risk factor for victims and their children


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Conduct to be considered in bail and sentencing decisions Conduct to be addressed in batterer intervention programs and sex offender treatment An area where judicial leadership is greatly needed

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Victims and Victim Impact

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What is Intimate Partner Sexual Abuse?

Sexual abuse in the domestic violence context encompasses a wide range of coerced sexual activity Victims may be coerced into sexual activity or denied control over their reproductive health through verbal coercion, threats against the themselves or others, financial manipulation or physical violence

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Intimate Partner Sexual Abuse Includes:

Insensitive, critical or degrading behavior relating to sex and sexuality:


Using sexually degrading names or criticizing victims physical features/attractiveness/body image Making victim feel cheap or dirty for wanting sex Using sex to prove faithfulness

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Insensitive, Critical or Degrading Behavior Relating to Sex and Sexuality (contd):

Withholding affection or accusing partner of being sexually abusive for denying sex; blaming victim for not being satisfied Stalking to ensure fidelity Accusing partner of having affairs Punishing partner for attracting attention of other men; checking her underwear for signs of sex Flaunting affairs Flaunting sexual abuse of children

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Trying/Making Victim Perform Sex Acts Against her Will, When Not Fully Conscious or When Afraid (contd):

Forcing vaginal, oral or anal sex Making victim view, imitate, or participate in pornography Forcing victim to have sex with others or in front of others, including children Forcing sex with children Forcing sex with animals
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Trying/Making Victim Perform Sex Acts Against her Will, When Not Fully Conscious or When Afraid (contd):

Coercing prostitution Coercing sex without protection against pregnancy or sexually transmitted infections Coercing abortion Apologizing after a battering incident by coercing sex
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Hurting the Victim in Relation to Sex

Battering before, during or immediately after sex Hurting victim physically during sex, such as inserting objects Assaulting victims breasts and/or genitals Bondage Forced physically painful and sadistic sex

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Extorting Sex

Refusing to pay child support without sex Refusing essential medical transportation without sex

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Prevalence: Studies of Physically Abused Women

Houston Study*
A diverse group of 148 physically abused women seeking orders of protection Researchers used a conservative definition of sexual abuse and asked only behaviorally-based questions The five questions were:
Source: *Judith McFarlane & Ann Malecha, Intimate Partner Sexual Assault Against Women: Frequency, Health Consequences, and Treatment Outcome, Vol. 105 AMERICAN COLLEGE OF OBSTETRICIANS AND GYNECOLOGISTS 99 (2005)

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Houston Study (contd):


During your relationship, did (name of abuser):

Make you have sexual intercourse against your will? Physically force you to have sex?

Make you have oral sex against your will?


Make you have anal sex against your will?

Use an object on you in a sexual way?

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Houston Study (contd):


Results:

68% of the 148 women reported sexual abuse in addition to physical violence 20% had a rape-related pregnancy 15% attributed sexually-transmitted infections to the sexual abuse

High levels of post-traumatic stress disorder

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Studies of Physically Abused Women (contd)

Midwestern Study*
Of 159 abused women in a Midwestern city, 45.9% reported sexual assault as well as physical violence

Duluth, Minnesota Study**


In a study of female partners of men in the Duluth, MN batterers programs, 70% had been sexually as well as physically abused
Sources: *Jacquelyn C. Campbell & Karen L. Soeken, Forced Sex and Intimate Partner Violence, Vol. 5 VIOLENCE AGAINST WOMEN 1017 (1999) **Domestic Abuse Intervention Project of Duluth, Minnesota

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Who are the Victims?


Vast majority of victims are women Marital rape occurs at the same frequency regardless of economic class or urban or rural setting Victims may be in same-sex couples Teens report same rates of co-occurring physical and sexual violence Children may witness or be forced to take part in violent sexual acts
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Victim Impact

What is the biggest myth about marital and intimate partner rape?

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Victim Impact: The Reality


When youre raped by a stranger, you have to live with a frightening nightmare. When youre raped by your husband, you have to live with your rapist.

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Victim Impact: Psychological

Rape by the person the victim should most be able to trust is deeply damaging psychologically precisely because of the betrayal of trust

Because of the repetitive nature of intimate partner rape, victims often sustain serious, long-term physical injuries as well
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Victim Impact: Psychological (contd)

Posttraumatic Stress Disorder: Flashbacks, hypervigilance, difficulty eating and sleeping, nightmares, loss of trust, intense fear and suicidal thoughts are all common reactions among victims of marital rape Revictimized Victims: Intimate partner sexual abuse victims who were raped as children or adolescents suffer especially severe emotional consequences
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Victim Impact: Physical


Sexually-Transmitted Infections (STIs) Pregnancy Bruising, broken bones, burns, internal injuries Long-lasting physical consequences because of repeated assaults, including internal injuries and chronic pain

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Repeated Sexual Assaults are Typical

The National Institute of Justice found that just over half of women raped by an intimate partner said they were victimized repeatedly by that partner
The average was 4.5 rapes by the same partner*

Individuals have reported 20 and more rapes by the same partner**


Sources: *U.S. Department of Justice, Tjaden & Thonnes, Extent, Nature and Consequences of Intimate Partner Violence (2000) **Raquel Kennedy Bergen, WIFE RAPE (1996)

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Barriers to Reporting

Fear of the abuser Overwhelming trauma Shame Denial Credibility concerns Ignorance of the law Religious Concerns Immigration Concerns
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Barriers to Reporting (contd)

Religious Constraints: Some religious sects persist in the view that a man has absolute right of access to his wifes body Many immigrant populations in the U.S. retain the cultural and religious practices of their homelands. Because of strong gender role ideologies, marital rape may be more acceptable in other world cultures
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Barriers to Reporting (contd): Inadequacy of Victim Services

Sexual assault and domestic violence victim service agencies often view themselves as serving distinct populations

Few shelters and rape crisis centers provide specific training on marital rape and intimate partner sexual abuse to advocates and volunteers
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Offenders

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Offenders
Offenders can be:
Any age Any race A same-sex partner Any occupation, economic or social status
Pastor Matthew Winkler
Photo Credit: trutv.com

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Failure to Recognize Behavior as Rape

Study of 229 Diverse Men in a Batterers Intervention Program in a Northeastern City*


53% answered yes to questions about conduct that met the legal definition of rape or sexual assault in the programs state

What percentage of these men answered Yes to the question, Have you ever sexually abused your partner?
Source: *Raquel Kennedy Bergen & Paul Bukovec, Men and Intimate Partner Rape: Characteristics of Men who Sexually Abuse Their Partner, Vol. 10 JOURNAL OF INTERPERSONAL VIOLENCE 1375 (2006)

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Behaviors Not Recognized as Sexual Abuse

Using threats and/or physical harm to compel partner to have sex against her will, including use of weapons Forcing partner to view/enact pornography

Forcing partner to have sex with other people, animals, or objects


Many men perpetrated several forms of sexual abuse and assault
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Minimization of Offenses

Typical responses from intimate partner sexual abusers:


Maybe I did it I didnt know I was hurting him/her Its all a misunderstanding People who do that are perverts I handled my wife wrong
-Scott Allen Johnson, PHYSICAL ABUSERS AND SEXUAL OFFENDERS (2007)

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Intimate Partners Are Offenders Property

Perpetrators are often described as jealous, domineering individuals who feel a sense of entitlement to have sex with their property whenever and however they want Pam told me, I remember one time he [her husband] told the judge, Thats my wife, you cant tell me what to do with her.*
Source: *Quoted in Raquel Kennedy Bergen, WIFE RAPE (1996)

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Rape as Punishment and Assertion of Control

Spousal rape is often punishment for the victims trying to leave the abusive relationship. The more control he thought he was losing, the worse it got. If I got a good job or I was doing good, he would take it away. He would beat me and force me [to have sex] just to get that control back.*

Source: *Quoted in Raquel Kennedy Bergen, WIFE RAPE (1996)

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Separation Sexual Assault

An impending separation or divorce often prompts renewed or first-time intimate partner sexual abuse One researcher found that 20% of the women in her sample were raped during or after their separation* A 2000 National Institute of Justice survey found that 24.7% of women raped by a former spouse or cohabiting partner said they were raped before and after the relationship ended**
Sources: *Raquel Kennedy Bergen, WIFE RAPE: UNDERSTANDING THE RESPONSE OF SURVIVORS AND SERVICE PROVIDERS (1996) **Patricia Tjaden & Nancy Thoennes, U.S. Department of Justice, EXTENT, NATURE, AND CONSEQUENCES OF INTIMATE PARTNER VIOLENCE: FINDINGS FROM THE NATIONAL VIOLENCE AGAINST WOMEN SURVEY, NATIONAL INSTITUTE OF JUSTICE (2000)

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Assessment and Treatment of Offenders

Assessments of batterers often fail to assess for intimate partner sexual abuse Many batterer intervention programs do not address intimate partner sexual abuse

Many sex offender treatment programs do not address sexual abuse in the domestic violence context

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Batterer Intervention Programs and Intimate Partner Sexual Abuse


Assessing a Batterer Intervention Program

What kind of training does staff have specific to sex offenders and intimate partner sexual abuse? Does the program deal with intimate partner sexual abuse even if it is not formally a part of the model on which the program is based? Does the program conduct any type of sexual behavior assessment? Do staff receive reliable information from the victim about the batterer's sexual behavior?
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Sex Offender Treatment and Intimate Partner Sexual Abuse


Many sex offender treatment programs do not evaluate and treat offenders for other types of domestic violence and do not specifically address treating those who offend against adult intimate partners.

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Risk Assessment

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Risk Assessment Related to Intimate Partner Sexual Abuse

Assessing likelihood of continued and escalating physical and sexual violence


Assessing risk of lethality to victim and others Assessing risks to children when making custody and visitation decisions
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Six Types of Potential Lethality


1. 2.

3.

4.
5. 6.

Femicide: Will the abuser kill his victim? Child Murder: Will the abuser kill the mothers or couple's children? Third Party Lethality: Will the abuser kill a third party? Suicide: Will the victim kill herself? Suicide: Will the abuser kill himself? Will the victim kill the abuser?
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Violence Often Escalates When Women Try to Leave (contd)

Most of the worst physical and sexual violence and most murders occur at or after separation An impending separation or divorce often prompts renewed or first-time intimate partner sexual abuse

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Risk Assessment Lethality (contd)


1. Femicide
On average each day in the U.S. more than three women are murdered by their current or former husbands or boyfriends Research documents that sexual assault in an intimate partner relationship is a leading indicator of potential lethality 11-city study of actual and attempted domestic violence femicides found that in 57% of these cases there was intimate partner sexual assault*
Source: *Jacquelyn Campbell, et al, Risk Factors for Femicide in Abusive Relationships: Results from a Multisite Case Control Study, 93 AMERICAN JOURNAL OF PUBLIC HEALTH 1089 (2003)

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Femicide (contd)

In the Houston study cited previously in which 68% of the women were being both physically and sexually abused, the sexually-abused women reported more of the risk factors for femicide, such as strangulation and threats to children, than did those subjected to physical abuse only*
Source: *Judith McFarlane & Ann Malecha, Intimate Partner Sexual Assault Against Women: Frequency, Health Consequences, and Treatment Outcome, 105 AMERICAN COLLEGE OF OBSTETRICIANS AND GYNECOLOGISTS 99 (2005)

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2. Child Murder

Any situation that heightens the risk of lethality for the mother heightens the risk of lethality for her children. In such instances there are few source materials apart from newspaper accounts because few of these cases will come to court. Two examples from 2009:

New York man killed his wife and two daughters before killing himself in April* Florida man murdered his wife and five children under the age of ten in September**

*Hotel Dead Were NY Family in Murder-Suicide, WASHINGTON POST, April 22, 2009, http://www.washingtonpost.com/wp-dyn/content/article/2009/04/21/AR2009042103525.html. **Eric Barajas, Friends Speak on Alleged Killer, ABC 13 HOUSTON, June 16, 2009, http://abclocal.go.com/ktrk/story?section=news/local&id=6868838

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3. Third Party Lethality

Newspapers frequently report instances of abusers, in the course of trying to kill their wives/partners, killing third parties: relatives of the woman trying to leave, individuals coming to her aid, bystanders or court personnel

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4. Suicide: Will the Victim Kill Herself?

Sexual violence in intimate partner relationships is more psychologically damaging to victims than physical violence alone In one study, 22% of sexually assaulted battered women reported suicide threats or attempts within 90 days of applying for a protection order* In another study more than half the women said they considered or attempted suicide at some point**
*Judith McFarlane & Ann Malecha, National Institute of Justice, Sexual Assault Among Intimates: Frequency, Consequences and Treatments (October 2005) **Raquel Kennedy Bergen, WIFE RAPE: UNDERSTANDING THE RESPONSE OF SURVIVORS AND SERVICE PROVIDERS (1996)

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5. Suicide: Will the Abuser Kill Himself?

According to the National Institute of Justice, it is commonplace for abusers to perpetrate murder/suicide in which they first kill the woman trying to escape them and then themselves 30 % of femicides are murder-suicides*
*National Institute of Justice, Intimate Partner Homicide, Vol. Issue #250 National Institute of Justice Journal (2003)

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6. Will the Victim Kill the Batterer?

The first major study of battered women who kill their abusers found that three-quarters reported having been raped at least once by their abusers* In a study of 40 victims of intimate partner sexual assault more than 50% had thoughts of killing their abusers.**
*Angela Browne, WHEN BATTERED WOMEN KILL (1987) **Raquel Kennedy Bergen, WIFE RAPE: UNDERSTANDING THE RESPONSE OF SURVIVORS AND SERVICE PROVIDERS (1996)

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Intimate Partner Sexual Assault Presages Lethality

Sexual assault co-occurring with physical abuse heightens the risk of escalating physical and sexual violence and all six types of lethality

It is essential to consider this risk when issuing protection order terms and conditions and when sanctioning protective order violations
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Risk Assessment: Custody and Visitation Implications


"[A] history of sexual assaults against the mother[is] linked to increased risk of sexual abuse of the children and increased physical danger."
Lundy Bancroft, "Assessment of Risk to Children from Visitation with a Batterer," UNDERSTANDING THE BATTERER IN CUSTODY AND VISITATION DISPUTES (1998)

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Risk Assessment: Custody and Visitation Implications (contd)


"[T]he sexual abuse of a parent has been seriously neglected despite its potentially severe traumatic impact on children and association with greater risk to the safety and well-being of children and adult victims."
Kathryn Ford, Childrens Exposure to Intimate Partner Sexual Assault, 3 SEXUAL ASSAULT REPORT 15 (2007)

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Risk Assessment: Custody and Visitation Implications (contd)

Vast research documents that children living in homes where there is domestic violence suffer serious physical and psychological harm Batterers are more likely than other fathers to seek custody, manipulate the court system to control their partners, and yet be awarded custody Intimate partner sexual abuse in the parental relationship heightens all risks to children

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Risk Assessment: Custody and Visitation Implications (contd)


Children themselves may be witnesses to or involved in a forced sex act. Study:
115 women in a domestic violence shelter All raped by their male partners 18% reported children had witnessed at least one sexual assault 5.2% reported partner involved children in a forced sex act*
*Jacquelyn Campbell & Peggy Alford, The Dark Consequences of Marital Rape, 89 AMERICAN JOURNAL OF NURSING, 947 (1989)

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Risk Assessment: Custody and Visitation Implications (contd)

If a parent discloses intimate partner sexual abuse, ask if children have witnessed or been directly involved in sexual violence.

When making custody/visitation decisions, consider the heightened risk to children when there is intimate partner sexual abuse.
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Recommendations

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Recommendations

Education programs for court personnel and judges who handle domestic violence cases should ensure that all are aware of:
The high incidence of intimate partner sexual abuse in the context of domestic violence; the many forms intimate partner sexual abuse can take; the implications for victim trauma; the implications for risk assessment; the implications for custody/visitation; and the interventions necessary with offenders.
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Recommendations (contd)

Create a court environment in which victims perceive they will be respected if they disclose intimate partner sexual abuse Ensure that court intake forms and risk assessment instruments used with domestic violence victims include sexual abuse and utilize behaviorally-based questions about intimate partner sexual abuse
Maintain a secure waiting area for victims in the courthouse outside of the courtroom
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Recommendations (contd)

Use behaviorally-based questions when asking domestic violence victims about intimate partner sexual abuse In your opinions and oral commentary, avoid using the language of consensual sex to describe sexual assault.

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Recommendations (contd)

Use creative methods to secure all information necessary to make informed pretrial release and dispositional orders and to enhance victim safety:

As a judge, when I assess lethality, my assessment is only as effective as the information that I receiveAnd my orders are only as good as the information that I receive.
- Judge Janice Martin, Jefferson District Court, Kentucky

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Recommendations (contd)

Work with the relevant court personnel and agencies to ensure that batterer intervention programs and sex offender treatment programs in the community address the intersection of sexual abuse, physical violence, and coercion and control

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Recommendations for Improving Court Response to Intimate Partner Sexual Abuse

Judges are situated to lead an effort to address intimate partner sexual abuse and, by doing so, protect victims and their children, hold offenders accountable while directing them to more effective intervention, and enhance community safety.

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This presentation is based on the National Judicial Education Programs web course and resource
Intimate Partner Sexual Abuse: Adjudicating this Hidden Dimension of Domestic Violence Cases www.njep-ipsacourse.org Registration is free and open to all

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