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Michael King[*]
Therapeutic jurisprudence is commonly associated with drug courts that seek to promote offender rehabilitation through judicial case management and a drug treatment regime. However, the term has a far broader application, describing an approach to law that sees legal processes as having an impact on the physical and psychological wellbeing of the participants. [1]
It is not simply drug courts or other problem solving courts such as family violence and mental health courts that impact on the wellbeing of parties to proceedings or the staff involved-all legal processes and all courts have a potential effect on wellbeing, whether positive or negative.
Certainly, the court team involved in a problem solving court has a unique environment in which to focus on promoting wellbeing as a goal of their court. However, every judicial officer is able to minimise negative effects and to promote positive effects on participant wellbeing through the nature of the interaction that takes place between the bench and the party involved.
In this context, 'wellbeing' is not limited to any particular psychological concept. Indeed, Wexler prefers a broad definition that allows a wide ambit of research relating to the effect of legal processes on the physical and psychological wellbeing of those it affects.[2]
Researchers and jurists have examined a range of effects of court processes on participant wellbeing, including participant satisfaction with court processes, self-esteem and substance abuse.
Certainly court processes positively impacting wellbeing have been and continue to be used without reference to therapeutic jurisprudence. While acknowledgement of therapeutic processes already used is important, therapeutic jurisprudence suggests that the potential therapeutic or anti-therapeutic effects should be a factor taken into account in determining all court processes. It is not to assert that it is the principal factor to be considered in every case, only that in seeking to promote the outcome sought by legislation or precedent it is a factor to be considered.
An absence of wellbeing as evidenced by dysfunction in one or more areas of life is often a feature of court cases. Such dysfunction can lead to a perpetuation of law-related problems. Serious domestic violence cases may involve cycles of violence leading to charges of assault and/or applications for restraining orders. In a significant proportion of cases involving serious offending behaviour generally, defendants have substance abuse and psychological problems and often an incidence of trauma in their immediate or more remote past. Parties to family law disputes suffer the emotional trauma arising from the disintegration of a significant relationship. Party dysfunction can exist in some civil cases such as personal injuries cases or in the breakdown of business relationships.
In such cases, the final resolution of the law-related aspects of a problem may require the resolution of the dysfunction. If an offender continues to have a serious substance abuse problem there is a risk of further offending. If a separated parent cannot resolve the bitterness that results from the emotional trauma of a failed relationship, then this may inhibit healthy relations with the children of the relationship.
Legal processes can impact on how people deal with dysfunction. Court processes can aid people in resolving dysfunction and thereby contribute to a more comprehensive resolution of the problem that brought them to court. As there is preventive legal practice - a lawyer helping to structure a client's affairs so as to minimise the potential for legal problems to arise in the future - so there can be preventive judging.
For example, an outcome of the first year self-evaluation of the Geraldton Alternative Sentencing Regime (GASR) has been the impact of court processes in promoting wellbeing.[3] Regular reviews where the magistrate interacts with participants and encourages their progress is an important feature. A participant who had anorexia nervosa for the previous two years and who had turned to cannabis use to stimulate her appetite reported a cessation of drug abuse at the end of her time in the program and also commented that her eating disorder was a lot better due to the gentle pressure she was under from the court. She had returned to eating three meals a day and had gained weight by the time of her graduation. Improvement in self-esteem is another outcome of such processes.
In a dividing fences case before a Western Australian Court of Petty Sessions, the parties appeared unrepresented. The magistrate asked the parties whether they had discussed the matter previously. When they said 'no', he pointed out that they would be neighbours for some time to come and that it would probably be in their better interests if they could get along with each other. The magistrate stood the case down and asked them to discuss the matter to see if it could be settled. When the matter came back on, the parties indicated they had settled the matter and the magistrate made a consent judgment. Then one of the parties indicated that the parties had been unable to speak to each other previously.
Though a full hearing would have produced a judgment resolving the civil dispute, the adversarial nature of the proceedings may have aggravated the communication problem between the neighbours and produced future problems. A therapeutic approach brought a resolution to the problem and helped address the underlying cause. However, in some cases the best interests of the parties may require a full hearing where each may present their case, have it acknowledged by a person in authority and have the judicial officer hand down a judgment.
There is another important reason why a judicial officer should take therapeutic factors into account: it may have a significant effect on whether the party respects the court and its orders. Indeed, US research suggests that being accorded procedural fairness is more important than litigation outcome to litigants' perceptions of fairness and satisfaction.[4] Australian research also emphasises the importance of fair procedures to participants' satisfaction with the court process.[5]
In a case where a magistrate had been abrupt and rude in dealing with a party's solicitor an appeal judge commented:
I doubt whether the respondent left the court either on 7 September or 5 November without feeling he had received something less than justice. On the unchallenged evidence the magistrate's behaviour throughout was overbearing, indeed bullying, and I doubt whether at any stage it could be said to have represented the 'impersonal authority of law'.[6]
In considering an appeal in a case where a magistrate had refused to permit the appellant's counsel from addressing him at the conclusion of the evidence, Walsh J said:
In addition, it is important so far as is practical, to ensure that the trial is not only fair but also appears to be fair. In the area of domestic violence, it is particularly important that efforts are taken to attempt to ensure that the parties feel that the trial was fair. If a party feels aggrieved and a victim of injustice after leaving the court room, it could well lead to an exacerbation of an already existent problem with potentially tragic results.[7]
Agencies involved in GASR reported that their GASR clients hitherto saw the role of a court as dispensing punishment.[8]
While that could be the jaundiced view of dysfunctional people, it could also be partly the product of bad experiences with court processes. Conversely, GASR participants report that for the first time they feel part of a caring network. Many participants have never had a person in authority take an interest in their welfare before. The effect of a magistrate - as well as the police and other members of the court management team-taking an interest in their welfare had a positive effect.
For a problem-solving court such as a drug court, mental health court, family violence court or GASR, a multiplicity of factors can have potentially therapeutic effects, including the attention of a team of court professionals, the particular strategies of interaction used by them and the use of various treatment programs. Research as to the therapeutic components of court processes is in its early stages. In her study of a domestic violence court, Petrucci observed:
A constellation of possible components, going from the very general court processes to the micro-interactions of how judge and defendant listen and respond to one another, emphasize what may possibly be an important aspect of a therapeutic approach - that the court experience in its entirety as experienced by the defendant must be considered.[9]
But a key component of a therapeutic approach is relevant to all courts: the nature of the interaction between the judicial officer and the participant.
Petrucci suggests that, in the context of a domestic violence court, an approach that promotes shared respect between the judicial officer and the defendant promotes the defendant's compliance with court orders.[10] According parties procedural fairness is a way of promoting their respect for the court.
Procedural fairness involves, amongst other things, the judicial officer listening to the parties and demonstrating that is the case. Commonly listening is demonstrated by the judicial officer responding during the presentation of a party's case in the form of questions or comments acknowledging an understanding of the party's position and by the judicial officer describing each party's case in the reasons for judgment. In sentencing, demonstrating the court has listened to the parties and those affected by the
proceedings, such as victims of crime, can occur through interaction during the proceedings and the judicial officer's sentencing remarks. Sentencing remarks should, as far as possible, involve acknowledging and validating the victim's experience where that is communicated to the court, condemning the offending behaviour, acknowledging factors personal to the defendant and where possible promoting rehabilitation - in addition to covering the relevant principles of sentencing.
Body language, the tone and manner of speech and how the judicial officer acts are also important. Sarcasm, for example, is unlikely to promote a therapeutic interaction. As to the domestic violence court she studied, Petrucci commented:
A judicial demeanour that included actively listening to defendants and seldom interrupting them when they spoke, body-language that demonstrated attentiveness, and speaking slowly, clearly and loudly enough to be heard while conveying concern and genuineness was consistently observed in this court and may be another key aspect of a therapeutic jurisprudence approach.[11]
This describes the demeanour that specialist therapeutic courts seek to promote and which is important for participants.
A judicial officer actively listening to each party is also thought to play an educative role by promoting a greater understanding of the other party's position.[12] The judicial officer validates the parties by demonstrating to them that each should be respected and listened to. Such a process can encourage the parties' own resolution of their problem. A technique used by magistrates in some summary family law and civil matters involving unrepresented parties is to have each outline their position in tum, to emphasise the common ground, to locate the point of difference and then to see whether there can be some accommodation by the parties.
Problem-solving courts offer the opportunity for an ongoing interaction between the judicial officer and the participant in the course of regular court appearances over time. Not only is there the active listening and validation of the participant by the bench but the possibility for the judicial officer to provide encouragement and praise and to take remedial action where warranted to promote the attainment of goals intimately related to wellbeing such as decreased substance abuse, offender rehabilitation and the elimination of family violence. Such benefits can be promoted by judicial officers in other courts as well by adjourning suitable cases for litigants to engage in treatment programs, mediation, counselling and the like with regular review by the judicial officer. Problem solving can be used to promote resolution of the legal problem and its underlying issues.
The application of therapeutic jurisprudence to judging suggests the use of procedures that promote a party's participation in both the fact-finding and the decision making processes. Wexler notes the success of cognitive behavioural rehabilitation techniques that promote the offender's greater understanding of the chains of events that frequently produce offending behaviour and develop the offender's skills to deal with such situations constructively.[13]
He suggests that techniques could be used to promote such an effect as part of the court process. He gives the example of a judge asking an offender to, in effect, justify his possible release on probation by asking him to identify his high risk situations and how he is to deal with them, to explain how he got into trouble previously and how he would avoid such situations in the future.
For a therapeutic interaction, the ability to communicate effectively and the promotion of active participation by the party in the court process is essential. Factors impacting the quality of communication and participation include: the nature and special needs of the party, the nature, language and formality of the processes used, the expertise of the judicial officer and the demands on court time.
Parties to court proceedings can experience a range of emotions leading up to and appearing in court. Their emotional state may be adversely affected by the public nature of a court: courts can have a large public gallery and their proceedings may be reported in the media. Parties are often extremely nervous. They can feel intimidated by the formality of proceedings and by the language and processes that seem largely foreign. They may be angry, fearful, frustrated, confused, distraught or despondent or be of mixed emotion. They may feel uncomfortable in expressing themselves in court and may simply wish to get the court process over and done with as quickly as possible. Their ability to give considered responses to questions posed by the bench or by counsel may be hampered due to emotional factors or to special needs as in cases of mental impairment or hearing problems. Children can also be bemused by the nature of court proceedings.
Cultural and language differences can also affect the nature of the interaction, particularly if the proceedings are not conducted with sensitivity to a party's needs. For example, for Aboriginal people, the avoidance of eye contact is a common means of demonstrating respect, and silence is a normal part of interaction between people. From a non-indigenous perspective, an absence of eye contact or silence may convey evasiveness or guilt. Further, commonly there will be differences between Aboriginal people and the general population in their use of English words and grammar. Cultural issues may preclude an Aboriginal person from speaking about certain topics.[14]
The difficulties faced by people with such differences can be accompanied by the emotional factors highlighted above. Aboriginal people and those from overseas with little command of English can be especially disadvantaged in their understanding of court processes or their understanding of what a judicial officer is saying to them. Such processes are generally completely foreign to their cultural milieu. This is particularly apparent in areas of Australia where indigenous people practise their traditional customs and speak in their traditional language.[15]
For some, their ability to participate and to make a difference to their court outcome may be limited. Some Aboriginal people, particularly those from more remote areas, will have mastered only the skills needed to get through the process with a minimum of fuss such as saying 'guilty' when the court asks how they wish to plead to a charge and asking for time to pay when they are fined. Such defendants rely heavily on the Aboriginal Legal Service (ALS) lawyer or court officer or on a Legal Aid lawyer for assistance.
The participant's personal situation may mean the court's ability to take a therapeutic approach that actively involves them is limited. In some cases, the problem can be mitigated by the use of less formal proceedings as in the case of
Aboriginal courts or specialist courts such as in GASR. [16] In other cases, the party's participation may need to be assisted by a lawyer, community corrections officer orALS court officer. Due to the emotional pressures of court attendance, a defendant may not be able to effectively communicate or give due reflection to questions posed by a judicial officer as part of a therapeutic approach and an adjournment may give the breathing space necessary for the problem to be resolved. In other cases, the factors affecting the person's ability to communicate may not be readily apparent to the presiding judicial officer, particularly in the case of an unrepresented defendant. In such a case a referral to the court duty lawyer, ALS or a private lawyer may be needed to facilitate communication.
Time constraints may limit the ability of a court to interact with the party. This was a complaint made to the Royal Commission into Aboriginal Deaths in Custody: 'People did not have time to talk to the magistrate in court. "It might not be justice but it's quick".'[17] Where a court has a large list, on average it can spend only a few minutes on each case. This is especially the case in Magistrates' Courts: adjournments and sentencing in relation to less serious matters may take no more than a few minutes. Large court lists limit the time available to consider creative options and to apply a therapeutic approach. Naturally, this difficulty can be reduced through the assistance of counsel, police prosecutors, community corrections and juvenile justice officers who are open to therapeutic strategies and who can make suggestions to the court.
At the very least, in the limited time available, the judicial officer should be able to address the party with courtesy[18] and respect and use simple language as appropriate. For an unrepresented party, a few well-placed questions by the judicial officer can facilitate the party telling their story. The judicial officer should also acknowledge a party's case in delivering judgment or sentence or in adjourning a case.
The ability of judicial officers to take a therapeutic approach also depends upon their temperament, skills and ability. While principles of procedural fairness are taught at law schools, judicial officers may come to the bench with only the communication skills acquired through legal practice and other life experiences. Judicial education should include communication skills and training in relation to techniques of therapeutic jurisprudence. The fact that stress on judicial officers can also impact on their temperament and inhibit their ability to take a therapeutic approach should also be addressed.[19]
The ability of a court to take a therapeutic approach also depends on the attitude and approach of court staff, legal practitioners, community corrections and juvenile justice officers and the police. When they are aware of and open to therapeutic options, they can prepare the party for the possible options to be used by the court and, where appropriate, make suitable suggestions to the judicial officer. Therapeutic jurisprudence training programs for court professionals would assist in facilitating this goal.
Courts, particularly magistrates' courts, have daily proof of the multiplicity of the human condition and the diverse problems encountered by many people. People come to the court with differing needs. But for most, one need is for the court to listen, to accord them respect and, as far as possible, to take their views and situation into account in disposing of their case.
Although some have questioned whether problem solving courts are a legitimate exercise of judicial power,[20] there is good reason for judicial officers to take participant wellbeing into account.[21]
Judicial officers can help to make a difference for people appearing before them not only by according procedural fairness but also, despite the constraints of a busy list, by expressing concern and compassion for the situation of their fellow human beings and by using processes conducive to a therapeutic effect. This has the potential not only to promote psychological wellbeing and thereby contribute to the resolution of underlying issues contributing to the law-related problem -such as substance abuse and low self-esteem-but also to promote public confidence in the court as an institution that listens, acts and responds to the needs of those it serves. It allows a judicial officer to take a more comprehensive and creative approach to determining cases.
Therapeutic jurisprudence deserves the careful consideration of judicial officers as it provides a theoretical framework and practical tools to help them promote compliance with their orders and to more comprehensively address legal problems. It thereby promotes the smooth functioning of the justice system.
[*] Michael King is Stipendiary Magistrate in Geraldton, Western Australia. He applies therapeutic jurisprudence in his work.
email: magistrate.king@justice.wa.gov.au
© 2003 Michael King (text)
© 2003 Kim Davies (cartoon)
[1] International Network on Therapeutic Jurisprudence <http://www.therapeuticjurisprudence.org> at 6 August 2003.
[2] David Wexler, 'Reflections on the Scope of Therapeutic Jurisprudence' in David Wexler and Bruce Winick (eds), Law in a Therapeutic Key, (1995) 811, 812-815
[3] GASR is an interagency, multi-disciplinary project taking a therapeutic, holistic, team-based and self-development approach to offender rehabilitation in the Court of Petty Sessions and the Children's Court. It uses a broad range of strategies including judicial case management and programs addressing multiple domains of a persons life -including innovative programs such as the self-development and stress reduction technique, Transcendental Meditation - to promote participant's ability to live a happy and constructive life. See, Michael King, 'Geraldton Alternative Sentencing Regime: Applying Therapeutic and Holistic Jurisprudence in the Bush' (2002) 26 Criminal Law Journal260.
[4] Tom Tyler, 'The Psychological Consequences of Judicial Procedures: Implications for Civil Commitment Hearings' in Wexler and Winick, above n 2, 3-15.
[5] Rosemary Hunter, 'Through the Looking Glass: Clients' Perceptions and Experiences of Family Law Litigation' (2002) 16 Australian Journal of Family Law 7.
[6] Magistrates' Court (Vic) v Robinson [2000] VSCA 198; (2000) 117 A Crim R 155, 167 (Charles JA); see also Were v Police [2003] SASC 116.
[7] Allen v Gittos (1995) 13 WAR 560,563.
[8] This accords with the Royal Commission into Aboriginal Deaths in Custody's observation that 'Because some have lengthy police records it is obvious the significance of their "offending" is lost on them and there is a sense of ''resignation" about the court procedure. Aboriginal defendants frequently say nothing when asked if there is anything they wish to say': Royal Commission into Aboriginal Deaths in Custody, Regional Report of Inquiry into Underlying Issues m Western Australia, 5.5.2. <http://www.austlii.cdu.au/au/special/rsjproject/rsjlibrary/rciadic/regionaVwa_underlying/45.html> at 6 August 2003.
[9] Carrie Petrucci, 'Respect as a Component in the Judge-Defendant Interaction in a Specialised Domestic Violence Court that Utilises Therapeutic Jurisprudence' (2002) 38 Criminal Law Bulletin 263,288.
[10] Petrucci, above, ref 9, 295.
[11] Petrucci, above, ref 9, 289.
[12] Nathalie Des Rosiers, 'From Telling to Listening: A Therapeutic Analysis of the Role of Courts in Minority-Majority Conflicts' (2000) 37 Court Review 54 <http://aja.ncsc.dni.us> at 6 August 2003.
[13] David Wexler, 'Robes and Rehabilitation: How Judges Can Help Offenders "Make Good"' (2001) 38 Court Review 18 <http://aja.ncsc.dni.us> at 6 August 2003.
[14] Diana Eades, 'Cross Examination of Aboriginal Children: The Pinkenba Case' (1995) 3(75) Aboriginal Law Bulletin 10; Dean Mildren, 'Redressing the Imbalance Against Aboriginals in the Criminal Justice System' (1997) 21 Criminal Law Journal 7; Stephanie Fryer-Smith, Aboriginal Benchbook for Western Australian Courts (AIJA Model Indigenous Benchbook Project), Australian Institute of Judicial Administration, 2002.
[15] Royal Commission into Aboriginal Deaths in Custody, National Report, para 2.2.4 <http://www.austlii.edu.au/au/special/rsjproject/rsjlibrary/rciadic/nationallvol3> at 6 August 2003.
[16] Michael King and Stephen Wilson, 'Magistrates as Innovators' (2002) 29(11)Brief 7.
[17] Royal Commission, above n l5, para 5.5.1.
[18] J Thomas, 'The Ethics of Magistrates' (1991) 65 Australian Law Journal 387. Some courts, such as the Federal Court, specifically include courtesy as one of their core values <http://www.fcdcourt. gov.au/aboutct/goap.html> at 6 August 2003.
[19] See Michael Kirby, Through the Worlds Eye (2000) 174.
[20] See, eg, Morris Hoffman, 'The Drug Court Scandal' (2000) 78 North Carolina Law Review 1437, 1523-33; Arie Freiberg, 'Problem Oriented Courts: Innovative Solutions to Intractable Problems' (200I) II Journal of Judicial Administration 8, 23.
[21] Bruce Winick and David Wexler (eds),Judging in a Therapeutic Key (2003).
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