|N.D. Supreme Court|

Gender Fairness Implementation Committee

Gender Fairness in North Dakota's Courts
A Ten Year Assessment

Table of Contents

The Beginning 1

Implementation 1

After Implementation - The Assessment 4

What We Found - An Overview 6

Professional Conduct and Courthouse Environment 9

Lawyer Conduct 10
Judicial Intervention 14
Judge Conduct 16
Professional Courtesies 20
Courthouse Environment 25

Domestic Law and Domestic Violence 30

Awareness of Bias - Judge Perspective 30
Education - Impact on Judges 33
Awareness of Bias - Lawyer Perspective 33
Domestic Violence - Awareness of Bias Issues 36
Domestic Violence Proceedings - Conduct 38
Education - Impact 39
The Protection Order Process 42

Criminal Law 46

Education - General Impact 46
Prosecution and Defense - Judicial Perspective 48

Judicial System - The Employment Environment 51

Sexual Harassment 52
Awareness of System Policies 54
Guide to Proper Conduct 55
The Informal Complaint Process 57
Job Advancement 60

General Judicial System Environment - What Judges See 62

Recommendations 64

The Beginning

In February 1994 Chief Justice Gerald W. VandeWalle appointed the 26-member Commission on Gender Fairness in the Courts. Its charge was to "examine the status and experience of women and men in our judicial system to determine whether or what inequities exist and ... make recommendations concerning changes considered necessary to ensure that women and men receive equal treatment in North Dakota's judicial system." The importance of this effort, similar to efforts undertaken in other jurisdictions, was underscored by the Chief Justice's fundamental observation that "[d]ecisions made or actions taken based on preconceived notions about the nature, roles, and abilities of women and men rather than upon evaluation of each individual situation strike at the heart of a judicial system that promises fairness and impartiality."

Following the appointment of its members, the Commission on Gender Fairness in the Courts began a two-year study of the state's judicial system and gathered data through the use of focus groups, surveys, public meetings, and informal research performed by law student volunteers. The Commission's study culminated in a report presented to the Supreme Court in October 1996 and published in the North Dakota Law Review: A Difference in Perceptions: The Final Report of the North Dakota Commission on Gender Fairness in the Courts, 72 N.D.L.Rev. 1113 (1996) (hereinafter "Perceptions"). The Commission made 33 recommendations in six categories: professional conduct, jury service, domestic law, domestic violence, criminal law, and judicial system as employer.

Implementation

After receiving and considering the Commission's Final Report, the Supreme Court adopted Administrative Order 7 establishing the Gender Fairness Implementation Committee. The Implementation Committee, chaired from its inception by Justice Mary Muehlen Maring, consists of membership appointed by the Chief Justice in consultation with the President of the State Bar Association. In addition to Chair Maring, current Committee membership consists of Pat Durick, Attorney, Bismarck; Jim Fitzsimmons, Attorney, New Town; District Judge Debbie Kleven, Grand Forks; Surrogate Judge Burt Riskedahl, Bismarck; and Assistant Professor Barbara Voglewede, UND School of Law. Previously serving on the Implementation Committee were Judith Howard, Attorney, Minot; Professor Marcia O'Kelly, UND School of Law, now retired; and Judge Thomas Schneider, Mandan.

The Implementation Committee's principle Mission under Administrative Order 7 is to "oversee the development of a detailed course of action to implement recommendations of the Final Report of the North Dakota Commission on Gender Fairness in the Courts" [Section C(1)] and to "monitor the progress of the Judicial Branch toward eradicating gender bias in the courts." [Section C(2)]. The Implementation Committee has additional responsibilities to recommend action beyond that identified by the Commission when considered necessary to achieve the goals of the Final Report and to review information and make recommendations on other bias-related matters not addressed in the Final Report but which may have an effect on the judicial system.

Since its establishment in 1997, the Implementation Committee has pursued a number of efforts to fulfil the recommendations set out in the Commission's Final Report. After an initial review and analysis of the recommendations, the Committee referred certain recommendations to other judicial system committees or other entities for consideration. The Committee monitored progress on these referrals and pursued implementation efforts itself with respect to several recommendations.

A common theme in the Commission's recommendations was the importance of affecting the professional environment in which lawyers and judges work and to underscore through education programs the importance of being aware of bias in its many forms and the corrosive effect bias has on the goals of equity and justice in the court system. As a result, the Implementation Committee coordinated several education programs with the State Bar Association to ensure that bias-related topics were regularly presented to attorneys. The Committee also monitored the inclusion of bias-related topics in numerous education programs for judges, judicial referees, and judicial system employees. As a result, numerous educational programs have been presented to judges, lawyers, and court personnel to enhance awareness of the presence, subtle and otherwise, of bias and its impact on lawyers, litigants, and participants in judicial proceedings and on the integrity of judicial proceedings.

In addition to recognizing the importance of education in enhancing awareness of the debilitating influence of bias on the operation of the judicial system, the Commission in its Final report recommended formal changes to court rules and policies to emphasize the inappropriateness of gender bias in the professional environment of the judicial system. The Implementation Committee referred some of these recommendations to the appropriate judicial system committees for consideration and the Committee developed additional proposals that were submitted to the Supreme Court and ultimately adopted. Implementation work in these areas resulted in the following accomplishments.

After Implementation - The Assessment

Over the course of nearly ten years since its establishment, the Gender Fairness Implementation Committee pursued a variety of efforts to realize the goals articulated by the Commission on Gender Fairness in the Courts in its Final Report. Several rule and policy changes have been made. Bias-related education programs for judges, attorneys, and judicial system employees have been provided and continue to be provided. Contacts and discussions with numerous entities have occurred.

The remaining challenge was to assess the nature and extent of perceptible change in attitudes and behavior with respect to gender bias. As the Committee neared completion of its initial implementation work, it undertook a review of a national publication, Gender Fairness in the Courts: Action in the New Millennium, which is intended to assist in developing a long-term action plan to ensure that progress on gender-related issues continues in the judiciary. A key element in this effort is the development of an appropriate mechanism to evaluate whether the judicial system has, in fact, achieved progress on issues identified in the Commission's Final Report. After reviewing various methods outlined in the New Millennium Manual and informed by discussions at national workshops, the Committee concluded a series of focus group discussions, assisted by the use of questionnaires and surveys, would be the most effective way of gauging progress in North Dakota. The Committee requested, and was granted, funds to undertake this process. The Committee's approach to conducting the assessment effort was, in several aspects, similar to an earlier progress assessment conducted by the New York State Judicial System Committee on Women in the Courts. The New York Committee distributed approximately 4000 questionnaires to a wide variety of stakeholders in the judicial system. Approximately 140 responses were received. The Committee subsequently held a one-day conference at which questionnaire results were shared and further information concerning bias and its impact on the judicial process was solicited.

With the impending 10-year anniversary of the Commission's Final Report approaching in 2006, the Implementation Committee conducted its assessment work in the fall of 2005 and early 2006. The Committee first identified a representative sample of the state's lawyer population with the aim of soliciting opinions from lawyers who practiced in a variety of areas of law and who could provide a comparative assessment of how the system may have changed since the Commission's Final Report was issued. Lawyers who participated in the assessment process included civil litigators, specialists in family law, prosecutors, criminal defense, child support enforcement, general practitioners, and government attorneys. The Committee conducted six regional focus group discussions with lawyers, child support enforcement personnel, domestic violence advocates and victim/witness assistants. The Committee also conducted four regional focus group discussions with judicial system employees. Questionnaires were distributed to solicit background information and form a framework for the discussions and to provide a base of information for the assessment process. In the early summer of 2006, surveys were distributed to all judges, judicial referees, and surrogate judges. In total, approximately 450 questionnaires and surveys were distributed. Approximately 40% of the questionnaires and surveys were completed and returned.

The Implementation Committee solicited information concerning four central areas addressed in the Commission's Final Report: professional conduct and courtroom environment, domestic violence, domestic law, and criminal law. The Committee sought to assemble information reflecting the broad assessments of those generally representative of participants in the judicial process over the past 10 years. Progress on bias issues is difficult to define and often more difficult to recognize, except when bias has manifested itself in an indisputable way and later ceases or becomes less apparent. Whether the progress is substantive or only a matter of degree and perception remains the difficult question.

What We Found - An Overview

"The North Dakota Commission completes its work with the hope that through awareness we can continue to make improvements in our state's court system which will ensure justice and equal treatment for all who are touched by the system".
Perceptions at 1128.

The hope expressed in the Commission's Final Report seems to have been borne out in appreciable measure in the implementation years following its study. That sense of optimism is not, however, without a keen appreciation that there is still work to be done. Bias, real and perceived, is a continuing presence in human affairs. Judicial systems and those who participate in the judicial process as judges, lawyers, litigants, witnesses, advocates, and court personnel, are not unaffected. The implementation efforts outlined at the beginning of this assessment report sought to institutionalize awareness of bias and its corrosive effect on the judicial process. They sought to set in place mechanisms that would serve as constant resources in ensuring that bias could be recognized and eliminated from the common workings of the judicial process. Aided by the coincidental effects of changes in societal, cultural, and professional norms, the implementation efforts have assisted in changing the professional environment in which those affected by the judicial process must work.

There is a general impression that the professional conduct of lawyers and judicial officers has improved since the Commission completed its work. The fact that more women are attending law schools and joining the legal community has forced an adjustment of attitudes. The composition of the judicial community has changed dramatically since the Commission issued its report. Newer, younger judges have brought a different perception to the bench. General impressions are not without exceptions however. Lingering manifestations of gender bias and differential treatment remain, illustrating the continuing important need for efforts to educate and inform. Judicial officers have indicated a heightened awareness of the need to control the professional environment of the courtroom and restrain biased or otherwise inappropriate conduct by counsel.

In particular areas of the law, there is also a general sense that lawyers and judges are increasingly aware of the impact that bias may have. Domestic law cases, often difficult and emotionally charged, have traditionally been the subject of charges of bias in results or treatment of parties. Judges and lawyers seem attuned to the risks bias poses for the equitable adjudication of these cases. However, the application of otherwise gender-neutral legal doctrines may, because of disparate results, give rise to the misperception that bias has driven a result, which complicates the ability of the judicial system to effectively represent the merits of judicial decision-making. Judges particularly must be sensitive to the equitable application of legal principles and to the need to create the appearance, and reality, of equitable treatment in the courtroom.

Responses concerning the domestic violence order process suggest the serious need for a review of the process. Education and awareness efforts are perceived as having positively affected how these cases are handled and professional conduct in the proceedings appears to have improved. There are, nevertheless, serious concerns about the basic integrity of the process. There appears to be general agreement, particularly among judicial officers, that the process does not serve the parties equally, or at least with some sense of balance, and is subject to misuse and abuse to achieve advantage in other legal proceedings. Additionally, the expedited hearing process may result in proceedings in which issues cannot be fully considered. The laudable objectives and intentions of domestic violence protection statutes risk being undermined and the substantial interests of those to be protected by the statutes frustrated if the process cannot work effectively.

There is a general sense among those involved in criminal sex offense cases - prosecutors, defense attorneys, advocates - that education programs have had a positive effect on the awareness of how bias may affect the handling of these cases. Judges share this generally positive assessment. However, there are reservations that reflect the intricacies of sex offense cases and the related challenge of identifying and eliminating bias as a factor.

The employment environment of the judicial system appears to be generally regarded in a positive light. The incidents of sexual harassment appear to be few, which confirms early findings in the Commission's Final Report. However, also consistent with the Final Report, there are isolated instances of sexually harassing conduct, which underscores the importance of ensuring that court employees are aware of relevant system policies and are comfortable and secure in using the protections afforded by the policies. Court employees seem generally aware of judicial system policies regarding sexual harassment, but there is a limited sense that the policies may not be effective. Additionally, judicial officers must be aware of and sensitive to issues in this area. The corrosive effect upon the court work environment of judicial misconduct in this area cannot be underestimated.

Most court employees indicate awareness of two tools developed to assist in addressing issues of proper conduct. Most are aware of the judicial system brochure designed to enhance awareness among employees of the dynamics of bias and the boundaries of permissible conduct. However, a substantial minority of court employees profess no knowledge of the brochure. Most court employees were also aware of the informal complaint process available under Administrative Rule 44, although few knew of any instances in which the process had actually been used. Some employee responses expressed skepticism that the process could achieve an effective result and some responses indicated a dynamic that would discourage use of the process. A significant number of responses from judicial officers indicated they were unaware of the process and those that knew of the process were not aware of any instance in which it had been used. Data regarding complaints submitted as part of the process indicates the process has hardly been used since its creation in 2001. It is unclear whether lack of use of the process is the result of a uniformly positive work environment or the result of a sense of discomfort and reluctance to use the process.

The prospects for job advancement by women within the judicial system are regarded positively by most court employee respondents. This result is consistent with the Commission's earlier findings. Some responses, however, suggest there is room for improvement.

The remainder of this Assessment Report is in two parts. The first part consists of the categories of inquiry identified for review by the Implementation Committee, brief summaries, and illustrative responses of participants. Participants, through either their responses to questionnaires or comments at discussion meetings, speak for themselves and provide interesting, insightful, and sometimes unadorned comments concerning the workings of the judicial system. The second part of this Assessment Report consists of several recommendations to ensure that the progress that has been achieved continues and to ensure that complacency does not undermine the long-term effort to continually improve the operation of the judicial system.

Professional Conduct and Courthouse Environment

Surveys conducted by the Commission on Gender Fairness in the Courts garnered a "fundamental conclusion: all respondents ... perceived that some degree of gender bias against women exists in North Dakota courtrooms." Perceptions at 1141. A sizeable percentage of women lawyers (46%) thought bias was widespread and subtle although about half of women attorneys thought occurrences of bias had declined in recent years. Id. at 1142. Women attorneys reported at notably higher percentages than men attorneys or judges that women attorneys were addressed by first names or terms of endearment or comments were made concerning physical appearance and apparel when such manners of address or comments were not directed toward men. Id. at 1151-53.

Commission surveys elicited disquieting responses concerning perceived instances of biased behavior by judges. In keeping with the overarching observation of the Commission's Final Report, there appeared to be a marked difference in perception regarding the occurrence of biased conduct depending on whether the point of view was that of a female or male attorney. For example, 37% of women attorneys reported that women attorneys were addressed by first names or terms of endearment by judges and men attorneys were not, while only 11% of men attorneys offered that opinion. Similarly, women attorneys reported at a far higher percentage than men attorneys that judges made comments to women attorneys about physical appearance or apparel when no such comments were made about men. Perceptions at 1151-53.

The Implementation Committee asked a series of questions concerning lawyer and judge conduct, specific forms of treatment, and general courthouse environment.

Lawyer Conduct

The Committee first sought general observations about changes, if any, in lawyer conduct.

Q: Do you think the situation regarding the perception of gender-biased conduct by lawyers in courtroom proceedings is better, worse, or unchanged? Briefly explain.

Several lawyer responses exhibited a cautiously positive assessment of how lawyer conduct may have changed:

Judicial officers appear to share this assessment. Most respondents regarded the perception of gender-biased conduct by lawyers as having improved over the past 10 years. Some responses noted the possible impact of education programs and awareness efforts.

The casualness that may result from interaction in a relatively small legal community was noted by one district judge new to the bench:

One district judge, however, offered a more guarded assessment.

The generally positive assessment of lawyers and judicial officers is shared by court employees, who are often in the unique position of being able to observe conduct by lawyers, judges, and others in the courtroom setting. Most employee respondents thought the conduct of lawyers had improved over the years or had remained essentially unchanged. Those who perceived conduct as unchanged appeared to be of the opinion that biased conduct had not, in the past, been noticeably present. Several responses illustrate the general dynamic.

There remains, however, a sense from lawyer respondents that bias continues to be an elusive but noticeable part of professional conduct, although it may be exhibited by a minority of the profession.

This last sentiment was shared by a district judge who had recently made the transition from private practice to the bench:

It appears most respondents consider professional conduct by lawyers to have improved. Reflecting the complexity of human and professional relationships, the improvement is not uniform. Improvement that has occurred is attributed to a variety of factors, including increased awareness, shifts in societal and cultural norms, education programs on specific bias issues, and the greater proportion of women in the legal profession. There is, however, a remnant of the legal profession for whom increased awareness and changed conduct is in shorter supply. The "work left to be done" illustrates the continuing importance of education and awareness efforts.

Judicial Intervention

The Implementation Committee sought to gauge how judicial officer attitudes may have changed concerning how to respond to biased conduct. Commission survey results indicated a decided difference of opinion among women attorneys and men attorneys about whether judges intervene to stop biased conduct in the courtroom. The Commentary to Canon 3B(6) of the Code of Judicial Conduct was amended to emphasize a judge's obligation to intervene when inappropriate conduct occurs. While improvements in courtroom conduct appear to have occurred, the judicial response to biased conduct when it does occur remains important.

In light of amendments to the Code of Judicial Conduct emphasizing a judge's obligation to intervene when inappropriate conduct occurs, the Implementation Committee asked whether there was a heightened awareness among judicial officers of the obligation. A clear majority of responses indicated increased sensitivity to the need by judges to address inappropriate conduct. The Implementation Committee then asked respondents to briefly describe their approaches to intervention. Responses described a general approach of quickly bringing the conduct to the attention of the lawyers and controlling the situation. The precise methods of addressing the situation differed.

The Commission's early concern that "judges act affirmatively to maintain a bias-free environment in their courtrooms", Perceptions at 1146, appears to have taken hold in the judicial community. The importance of controlling the professional environment within the courtroom is clearly recognized by most respondents. The precise method of control or intervention remains, however, a distinctly individual choice.

Judge Conduct

The Implementation Committee then asked whether the perception of biased conduct by judges had changed.

Q: Do you think the situation regarding the perception of gender-biased conduct by judges in courtroom proceedings is better, worse, or unchanged? Briefly explain.

The impact of changing judge demographics was illustrated in several lawyer responses.

Some court employee responses shared a similar perspective.

The effect of high profile instances of judicial misconduct was evident in some responses.

For several lawyer respondents, perceptions of judicial conduct have improved or the courtroom experience was regarded in a positive light.

This generally positive assessment was again evident in responses from court employees, most of which succinctly considered the situation has being better or improving. Several responses provided more expansive evaluations.

But there is still room for improvement.

A majority of judicial officers responding to this question agreed judicial conduct has improved. Some responses attribute the perceived improvement to education and awareness efforts, the changing judge population, or the changing legal community generally.

Mirroring in general degree the perceived improvement in lawyer conduct, assessments of judicial conduct indicate a general sense that biased conduct, or the perception that judges are biased, has declined. Changes in judge population, education, the changing face of the legal profession, and general awareness are cited as reasons for the perceived improvement. Responses from judicial officers illustrate a greater awareness of the important issues at stake. Sober responses about the impact of instances of judicial misconduct illustrate as well the importance of constant awareness and adherence to high standards by judges, who are the centers of authority in the courtroom.

Professional Courtesies

When the question turned to more specific kinds of treatment of women lawyers, a continuing difference in experience and perception among lawyer participants emerged.

Q: Do you think there is still a perception of an unwillingness, general or isolated, to extend the same professional courtesies to women lawyers as are extended to men lawyers? Particularly, are there inappropriate forms of address used for women lawyers or comments on personal appearance based on gender stereotypes? Briefly explain.

Some lawyer responses reflected a generally positive assessment of the treatment of women lawyers in the courtroom setting.

A nearly equal sentiment, however, was that a differential persists in the perception of how women and men attorneys are treated with respect to professional courtesies.

Interestingly, a majority of responses from judicial officers indicated there is no unwillingness to extend the same professional courtesies to women attorneys as are extended to men attorneys or that differential conduct had not been observed in the courtroom. This bears some resemblance to Commission survey results that indicated only 12% of judges observed the use of first names or terms of endearment with respect to women attorneys while 57% of women attorneys and 19% of men attorneys reported such conduct.

Some responses considered differential treatment still present in some measure even if not readily detected.

Court employees were asked a similar question, but with an added reference concerning whether professional courtesies are extended to women court personnel. Most respondents did not perceive an unwillingness to extend professional courtesies nor did they perceive a tendency to indulge inappropriate forms of address or comments about personal appearance. Some examples:

Some court employee responses, however, indicated there are vestiges of differential treatment that require vigilance.

Professional courtesies, both with respect to lawyers and judges and court staff, continue to be marked by the "difference of perceptions" noted in the Commission's Final Report. While perceived improvements are evident, differential treatment based on gender or status remain uncomfortably present.

Courthouse Environment

The Implementation Committee then asked participants about the general courthouse environment in which they practice or serve.

Q: Do you think the general courthouse environments in which you practice could be described as more, less, or unchanged regarding awareness of and sensitivity to biased conduct? Briefly explain.

There appears to be the general opinion among lawyer respondents, with some reservations, that the general courthouse environment has improved.

The impact of changes in judicial demographics was again apparent.

The impact on the courthouse environment of high profile instances of judicial misconduct was again the subject of comment.

The responses of judicial officers also suggests an improvement in the general courthouse environment. A majority of responses indicated that a gradual change has occurred due in part to a combination of increased awareness and education.

Court employees appear to share the general opinion that the courthouse environment has improved with respect to awareness of and sensitivity to biased or harassing conduct.

However, several responses underscored the importance of continued efforts to educate courthouse employees on the dynamics of gender bias.

The impact on the general courthouse environment of high profile changes in courthouse personnel was also noted.

Consistent with earlier observations about lawyer and judge conduct, the general assessment is that the courthouse environment has improved since the Commission's study. Contributing factors include changes in personnel, increased awareness, and education programs. There are, however, continuing instances of inappropriate conduct which underscore the importance of maintaining expectations concerning proper conduct.

Domestic Law and Domestic Violence

Commission's survey responses revealed that substantial majorities of women and men attorneys thought attorneys dissuade fathers from seeking custody because they believe judges will not give fair and individual consideration to the fathers request for custody. However, substantial majorities of women and men attorneys thought judges do give fair and individualized consideration to fathers who seek custody. Perceptions at 1180. The Commission concluded that the marked disparity in responses suggested that attorneys "may use the possibility of judicial gender bias as an excuse to discourage fathers from seeking custody rather than advising fathers not to seek custody for [other] reasons." Id.

In its review of domestic law issues, the Commission did not find clear instances of bias in the application of legal doctrine in domestic cases. However, survey responses and discussion comments revealed the risk of misperceptions when gender neutral legal doctrine are perceived as biased because of disparate impact in case results. The Commission found concerns about neutral application of child support guidelines, neutral application of the "primary caretaking" criterion in custody determinations, realistic understandings of the economic consequences of divorce, and the consistency and predictability of property division.

Awareness of Bias - Judge Perspective

In light of these general observations, judicial respondents were asked a more narrowly focused question regarding custody, visitation, spousal support, and property division.

Q: Do you think judges and lawyers are more aware of and sensitive to perceptions and risks of gender bias in such areas as custody and visitation determinations, spousal support, and property division? Briefly explain.

A majority of responses reflected a general sense that awareness of the potential impact of bias has increased among judges and lawyers.

There was, however, a sense among some responses that awareness may not have contributed to changed results.

The tension between application of the law to the facts of the case and perceptions regarding fairness of results was noted in several responses.

A district judge with significant experience on the bench, however, offered this unsettling observation.

The impact of outside forces was also noted in some responses.

There appears to be a general awareness, illustrated in the responses, , of the risks that bias poses in the adjudication of domestic cases. However, there is a sense also that what is perceived as bias may not be and may, instead, be the result of application of legal doctrine to the facts of the case or decisions made by the parties or their attorneys. Nevertheless, the Commission's concern that application of doctrine may "mask" the indulgence of bias or stereotypes underscores the continued need for education and awareness efforts.

Education - Impact on Judges

Judicial officers were then asked as well whether education programs had an effect in this area.

Q: Do you think education programs have had an impact on the conduct of judges with respect to awarding child custody, visitation, spousal support, or property divisions? Briefly explain.

The general perception is that education has had a positive impact. There were, however, reservations about the extent to which education programs can affect the disposition of particular cases.

Commission survey responses and public meeting comments highlighted continuing concerns related to victim blaming, lack of respect for victim concerns, and skepticism about the credibility of women in domestic violence proceedings. The Commission emphasized the need for ongoing education and training for those involved in the adjudication of these cases. Perceptions at 1208-10.

Awareness of Bias - Lawyer Perspective

In light of the Commission's findings and conclusions regarding perceptions of bias in the areas of domestic violence and child custody and visitation, the Implementation Committee solicited general observations from lawyers regarding any changes in perceptions and awareness.

Q: Do you think lawyers and judges are more aware of and sensitive to perceptions and risks of gender bias in such areas as domestic violence and custody and visitation determinations? Briefly explain.

Lawyer responses to this question revealed a persistent ambivalence about progress in this often emotionally charged area of the law.

While some lawyer participants perceived a change in this area, there was concern that perhaps the change had gone too far.

Some lawyer participants clearly saw improvements.

And a perhaps common sentiment illustrates the difficulty in discerning the presence and impact of bias.

Domestic Violence.

Responses from judicial officers regarding increased awareness of the issues of gender bias particularly in domestic violence cases reflected a general sense that awareness has improved.

However, there is still a level of skepticism about whether awareness has increased or translated into results.

With respect to changes in the awareness of lawyers and judges of the risks associated with bias in the context of domestic violence, the Implementation Committee sought the observations of those regularly involved in assisting victims of domestic violence. Responses generally suggest the judicial system in general is improving in its approach to domestic violence cases.

Domestic Violence Proceedings - Conduct

The Implementation Committee sought comments from those assisting victims of domestic violence in the particular area of perceived changes in professional conduct and instances of gender-biased conduct by lawyers involved in domestic violence or related proceedings. As illustrated by the following comments, perceived bias continues to be a source of concern. Additionally, the dynamics of the adversarial system are often seen as contributing to an atmosphere that can be perceived as hostile or biased with respect to victims.

Education - Impact

The Implementation Committee next sought observations concerning the perceived impact of the generally increased availability of education programs.

Q: Do you think education programs have had an impact on the conduct of judges, lawyers, and court personnel in cases involving domestic violence? Briefly explain.

Lawyer responses reflected a generally favorable impression of education programs but also reflected the difficulty in linking programs with changes in conduct.

This generally positive assessment was also reflected in most responses from judicial officers.

A minority of responses, however, indicated skepticism about whether education programs have had any influence on the consideration of cases.

From the standpoint of those regularly involved in providing assistance to the victims of domestic violence, educational initiatives were generally regarded as successful, with the caveat that attendance is often sporadic.

The Protection Order Process

Notwithstanding the ostensible positive influence of education programs and increased awareness regarding the dynamics of domestic violence, responses reflected some level of dissatisfaction with the domestic violence protection order process and the impact perceived bias may have. This dissatisfaction and suspicion that the process is unbalanced or flawed in achieving the ends contemplated by the domestic violence statutes was also expressed in discussion groups. To gauge the judicial perspective in this area, the Implementation Committee asked judicial officers two questions concerning the "mechanics" of the protection order process.

First, the Committee asked:

Q: Do you think the current domestic violence protection order process within our court system serves both parties equally in terms of resources, review of petitions, and dispositions? Briefly explain.

About half of the responses reflected a general sentiment that the protection order process does serve both parties equally. A judicial referee, however, offered this apparently qualified endorsement:

A significant number of responses alarmingly drew attention to issues concerning unequal resources, favor to one side, and the potential for the process to be misused.

Judicial officers were then asked a question concerning whether the protection order process is serving its intended purpose or is subject to manipulation to serve other ends.

Q: Commission survey results indicated that 80% of men attorney respondents and 73% of women attorney respondents thought the domestic violence protection order process was used for purposes other than what is intended by governing statutes. Do you think that is an accurate assessment of the process today? Briefly explain.

A clear majority of responses suggest that the protection order process is often used as a tool or litigation weapon in seeking to affect outcomes in other cases or achieve ends that to do not reflect the goal of domestic violence statutes.

Responses in the category concerning the domestic violence protection order process suggest an unsettling degree of dissatisfaction . Education and awareness efforts are regarded as having achieved some level of improvement in how domestic violence cases are handled. There is, however, a persistent concern about professional conduct in the hearing process and about whether the process fairly serves both sides. Responses from judicial officers are particularly clear in suggesting that the protection order process does not serve the parties equally, or at least with some measure of balance, and that the process is often used to achieve advantage or impose disadvantage in related litigation.

Criminal Law

Commission's survey responses indicated that significant percentage of men attorneys and judges (64% and 62% respectively) thought that prosecutors are less likely to pursue a sexual assault case if the alleged offender is the husband. Perceptions at 1219. There was substantial agreement that prosecutors are less likely to proceed on "date" or "acquaintance" rape charges. Id. at 1220. There was also substantial agreement among women attorneys, men attorneys, and judges that defense attorneys appeal to gender stereotypes in order to discredit the victim in criminal sexual conduct cases. Id. at 1222.

Education - General Impact

The Implementation Committee again sought observations concerning the possible impact of increased education efforts on how judges and lawyers responded in criminal cases in which gender bias is documented as having an impact.

Q: Do you think education programs on the effect of bias have affected how judges and lawyers (prosecutors and defense attorneys) analyze and respond in cases involving sexual assault, domestic violence, acquaintance rape, and other criminal cases in which gender stereotypes may play a role? Briefly explain.

There is a general recognition that education programs may have a positive effect. There is also, however, a greater need for education programs in certain areas, such as law enforcement, and a sense that education programs have limits in what can be achieved.

Responses from judicial officers were generally positive in their assessment of the effect of education programs on the prosecution, defense, and adjudication of sex offense cases. Some responses, however, expressed doubt about whether programs have had an appreciable impact.

Those regularly involved in providing assistance to victims of domestic violence and criminal sexual offenses remain generally positive concerning the value of educational programs. There is, however, the caution, as illustrated in these comments, that improvement is a continual challenge and the intricacies of criminal cases increase the difficulties of combating the effect of bias.

Prosecution and Defense - Judicial Perspective

In light of particular Commission findings regarding the prosecution and defense of sex offense cases, judicial officers were asked two narrowly directed questions - one with respect to the prosecution of cases and one with respect to the defense of cases.

Q: Commission survey results indicated that 62% of judge respondents thought prosecutors were less likely to pursue a sexual assault case if the alleged offender is the husband. Do you think that assessment holds true today? Briefly explain.

Approximately half of the respondents either considered these cases as being equally as likely to be prosecuted as other sex offense cases or at least did not perceive reluctance on the part of prosecutors to pursue such cases. These comments illustrate this assessment.

However, some responses illustrated the difficulty prosecutors may perceive in successfully prosecuting such cases.

Judicial officers were then asked about particular defense tactics in sex offense cases.

Q: Commission survey results indicated that 71% of judge respondents thought defense attorneys appeal to gender stereotypes in order to discredit victims in sex offense cases. Do you think that remains a common trial practice? Briefly explain.

Responses were almost equally divided on this question. Some responses were consistent with the Commission's general finding that defense attorneys will appeal to gender stereotypes.

A nearly equal number of responses indicated that either the practice had not been witnessed or that the practice, while it may be indulged, is becoming less common.

Judicial System - The Employment Environment

The Commission sought to evaluate several aspects of court personnel work environment to gauge the possible presence and impact of gender bias. Particularly, the Commission assembled information in such areas as incidents of sexual harassment and opportunities for job advancement. Perceptions at 1226-1240.

Commission's survey results found that 22% of women attorneys observed court personnel engaging in the verbal sexual harassment of women court personnel. However, a far fewer percentage of men attorneys, men court personnel, and women court personnel reported such behavior. Notwithstanding this apparent difference of perceptions, Commission survey results indicated a percentage of women court personnel, albeit a small percentage, reported being subjected to sexually harassing behavior. Id. At 1238-1239.

Sexual Harassment

In light of these findings, the Implementation Committee asked questions to gauge the perception, or reality, of harassment in the court work environment and employee awareness of resources to address the problem.

Q: Have you personally experienced verbal or physical sexual harassment or witnessed such harassment of other court personnel? Briefly explain.

Consistent with the Commission's earlier survey results, a majority of participants indicated they had not experienced verbal or physical sexual harassment. However, also consistent, disconcertingly so, with the Commission's earlier survey results, a substantial minority of participants reported either being the subject of or witnessing harassing behavior.

Some responses reflected the reality that harassing behavior may occur in situations involving actors that are not a part of the judicial system.

Awareness of System Policies

The Implementation Committee then sought to assess employee awareness of policies and resources that would assist in addressing situations involving inappropriate conduct.

Q: Are you aware of the judicial system's policy on sexual harassment and, if so, do you think it is effective? Briefly explain.

Nearly all respondents indicated awareness of the policy and considered it an effective tool for addressing harassing conduct. Several responses indicated awareness of the policy and stressed the importance of education and personnel leadership in ensuring awareness and effectiveness.

Several responses indicated an awareness of the policy but could offer no assessment of its effectiveness. On the one hand, these responses indicate a lack of personal experience with the policy and its application. Some responses may, however, indicate a paucity of instances in which the policy was used as a remedy to address problematic behavior.

Some responses exhibit a somewhat guarded assessment of whether the policy is regarded as essentially effective.

Some responses expressed unfortunate skepticism about whether the policy is a viable remedy is some instances.

An appreciable minority of respondents indicated they were not aware of the judicial system policy, which underscores the need for more aggressive education and information efforts concerning the policy and its function.

Guide to Proper Conduct

As part of its efforts to implement the recommendations in the Commission's Final Report the Implementation Committee sought to make available to judicial system employees a basic guide outlining methods and actions by which employees could ensure that the judicial system remains free of bias. The Committee developed a short informational brochure to assist in enhancing awareness among employees of the dynamics of bias and the boundaries of permissible conduct in the court environment. The brochure was approved by the Supreme Court and distributed to all employees. In an effort to assess the usefulness of the brochure, the Committee asked the following question.

Q: Are you aware of the court employee brochure on maintaining a bias-free court environment. If yes, do you think it provides adequate guidance?

Most respondents indicated awareness of the brochure and considered it generally useful to employees as an information resource. However, approximately twenty-five percent of respondents indicated they were not aware of the brochure and had not received any information concerning the brochure.

Some respondents expressed awareness of the brochure but indicated skepticism that it would prove useful or dissatisfaction with the level of supporting information provided about the brochure.

The Informal Complaint Process

As part of its implementation efforts, the Implementation Committee developed and recommended to the Supreme Court a rule establishing an informal complaint process which provided an informal, confidential method of responding to alleged inappropriate conduct by judicial system employees and judicial officers. The process was a response to the Commission's recommendation that an informal system be established by which those accused of biased conduct would have the opportunity to have the matter reviewed and discussed. Perceptions at 1246, 1248. The objective was to offer an educational, ameliorative alternative to the formal disciplinary or grievance process. The Implementation Committee's proposed rule was subsequently adopted as Administrative Rule 44. The Committee, through the following question, sought to assess awareness among court employees and judicial officers of the informal procedure and whether it was considered a useful method for addressing problematic conduct.

Q: Are you aware of the informal complaint procedure by which court employees and others can confidentially submit complaints about employee or judicial conduct? If yes, do you think it is an effective or useful procedure?

A majority of court employee respondents were aware of the informal complaint procedure but there was a difference of opinion about whether it is a useful tool to address issues of conduct.

Some respondents were aware of the procedure and considered it useful or were aware that it had been used.

Other respondents indicated awareness of the procedure but had no experience upon which to offer an opinion regarding effectiveness, thought the procedure simply would not serve as an effective method for addressing problem behavior, or considered the procedure flawed.

Approximately twenty-five percent of court employee respondents were not aware of the procedure or did not know of anyone having used it.

A slight majority of judicial officer responses indicated general awareness of the informal complaint process. Approximately 40% of respondents, however, said they did not know about the process. Of the respondents who were aware of the process, a majority indicated they had no experience with the process or did not know of an occasion on which the process was used, and as a result could not offer an opinion regarding whether the process is useful in addressing issues of bias or questionable conduct. These comments illustrate the general dynamic among those who were aware of the process.

Data obtained by the Implementation Committee indicate that approximately ten complaints have been submitted since Administrative Rule 44 was adopted in March 2001. About one-half of those complaints were considered matters that ultimately could not be addressed through the informal complaint process.

Job Advancement

Commission's survey results found that a majority of women and men court personnel, in similar percentages (67% for women and 74% for men) did not think women's opportunities for job advancement in the judicial system were limited because of gender. Perceptions at 1233. The Implementation Committee asked the following question to assess whether that opinion holds true today.

Q: Do you think women court employees have an equal chance in terms of job advancement in the judiciary? Briefly explain.

Most respondents (approximately 75%) appeared to still agree that gender is not a limiting factor with respect to job advancement in the judicial system. Some examples of responses follow.

Some responses exhibited a kind of tentative optimism.

There is, however, a clear indication that some employees do not consider the employment environment as unaffected by gender or other, perhaps inequitable, considerations.

General Judicial System Environment - What Judges See

One of the earlier questions asked by the Implementation Committee concerned the general courthouse environment, which elicited responses touching on issues of general professional conduct, employer-employee relationships, and simple considerations of decorum. The Committee asked judicial officers an additional, slightly differently directed question about the atmosphere of and the experience within the judicial system.

Q: In response to Commission surveys, 82% of judge respondents said gender bias exists in some fashion in the judicial system. Of these responses, 65% said bias existed " in a few areas and with certain individuals" and 16% said "gender bias against women is widespread but subtle and hard to detect".

In your estimation, has the judicial system improved, gotten worse, or remained largely unchanged since these earlier assessments by judges? Briefly explain.

Responses indicate a firm impression that the judicial system has improved over the past 10 years. Mirroring responses to questions concerning professional conduct, improvement is attributed to a variety of factors: changes in judicial demographics, increased awareness, and the changing composition of the legal community.

Recommendations

The questionnaires, surveys, and discussion group comments provided a wealth of information concerning whether the judicial system has made any progress in addressing the issues identified in the Commission's Final Report. Notwithstanding generally positive assessments in many areas, the Commission's hope - to continue to make improvements - compels the Implementation Committee to the conclusion that additional, ongoing efforts are necessary.